Rex v Kase (Criminal Appeal No. 1777 of 1944) [1945] EACA 58 (1 January 1945)

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

## REX. Respondent

$\dot{v}$ .

## ABDULLAI KASE, Appellant Criminal Appeal No. 1777 of 1944

Criminal law—Penalty—Possession $of$ unlicensed $firearms$ —Arms $and$ Ammunition Ordinance, 1925, S. 29—Amending Ordinance increasing penalty —Increase after date of offence but prior to conviction—Sentence illegal.

On 25th July, 1944, the appellant was convicted of being in possession of unlicensed firearms in May, 1943, in the Northern Frontier District and sentenced to five years imprisonment with hard labour. At the time of the commission of the offence the maximum penalty for such an offence was imprisonment for twelve months but in May, 1944, the penalty was increased to five years imprisonment in respect of offences committed in the Northern Frontier District. The appellant appealed.

Heid (26-3-45).—That when a statute imposes fresh liabilities it ought not to be held to be retroactive in its operation unless the words are clear, precise and quite free from ambiguity.

Appeal allowed. Sentence reduced to 12 months' hard labour.

Appellant in person.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—On the 25th July, 1944, the appellant was charged on three counts with (1) going armed in public, *contra* section 86 of the Penal Code, (2) being in possession of unlicensed firearms, contra section 12 (1) the Arms and Ammunition Ordinance, 1925, and (3) being in a closed district without a pass, contrary to section 7 Outlying Districts Ordinance, Cap. 26. The offences were alleged to have taken place in May, 1943, in the Northern Frontier District. On conviction the accused was sentenced to 2 years' hard labour on the first count, 5 years' hard labour on the second count and 2 months' hard labour on the third count, the sentences to run consecutively. On confirmation the sentence on the second count was reduced to three years' hard labour, which is the maximum sentence the trial magistrate had jurisdiction to award. The evidence which the magistrate believed clearly supported the convictions, but a question arises as to the legality of the three years' sentence on the second count.

At the time the offence was committed the maximum penalty for possessing unlicensed firearms was 12 months' imprisonment. In May, 1944, however, the law was amended to authorize a penalty of 5 years' imprisonment for offences against the Arms and Ammunition Ordinance committed in the Northern Frontier District. Up to the 4th May, 1944, sub-sections (1) and (2) of section 29 of the $Ordinance read:$

- (1) Any person who contravenes any provision of this Ordinance, or any rule, notice or order thereunder, or the conditions of any licence or permit, shall be guilty of an offence against this Ordinance. - (2) Any person guilty of an offence against this Ordinance shall on conviction be liable to imprisonment of either description for a term not exceeding twelve months or to a fine not exceeding two hundred pounds or to both.

The amending Ordinance substituted a comma for the full stop after the last word in sub-section $(2)$ and added the following provision:—

> "and if the offence was committed in the Northern Frontier District shall be liable on conviction to imprisonment of either description for a term not exceeding five years or to a fine not exceeding £500 or to both."

What we have to decide is whether that amendment has to be given a retrospective effect:

It is unnecessary to quote authority for stating that statutes are not to be interpreted so as to have retrospective operation, unless they contain clear and express words to that effect, or the object, subject matter or context shows that such was their object; and that when the words of a statute admit of two interpretations you are not to interpret them so as to produce a retrospective effect. or impose disabilities not existing at the passing of the statute.

We are asked to say that the use of the word "was" in the amendment cited clearly shows that the amendment should be read as acting retrospectively. After due consideration we are unable to agree with this submission. The use of the word "was" is to our mind quite consistent with the usual prospective effect of a statute. Indeed in our view the only possible comment on the use of the word "was" in the amendment is that the propriety of its use after the word "if" might be questioned.

We dismiss the appeal against the convictions but we reduce the sentence on the second count to one of 12 months' hard labour; the sentences on the other two counts will stand.