[1947] EACA 59
The court held that the Magistrate was required by law to impose a minimum fine of £75 for a second conviction under section 44 of the Liquor Ordinance, 1934, and substituted this amount for the lower fine imposed. The court further held that the Magistrate had no authority to order the destruction of the revolver...
Source-derived case information.
- Citation
- [1947] EACA 59
- Parties
- Applicant: Rex; Respondent: Gulam Hussein Hassam Habib
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Confirmation, Case No. 1018 of 1947
- Procedural Posture
- Criminal Confirmation / Confirmation of Sentence
- Outcome
- partially varied and confirmed
- Judges
- Coffey AgJ, Nihill, C.J
- Legal Topics
- Liquor Offences, Repeat Offender Penalties, Arms and Ammunition Offences, Sentencing, Forfeiture of Property
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Rex
Applicant
Gulam Hussein Hassam Habib
Respondent
Procedural Posture
Criminal Confirmation / Confirmation of Sentence
Legal Issues
- 1 Whether the minimum fine for a repeat offence under section 44 of the Liquor Ordinance, 1934, was correctly imposed.
- 2 Whether the Magistrate had the power to order destruction of the revolver under the Arms and Ammunition Ordinance, 1925.
- 3 Whether the fines imposed should be paid by instalments.
Ratio Decidendi
The court held that the Magistrate was required by law to impose a minimum fine of £75 for a second conviction under section 44 of the Liquor Ordinance, 1934, and substituted this amount for the lower fine imposed. The court further held that the Magistrate had no authority to order the destruction of the revolver under the Arms and Ammunition Ordinance, 1925, and that only forfeiture to the Crown was permissible. The court declined to make an order for payment of fines by instalments in confirmation proceedings but directed the Magistrate to hear an application from the accused on this issue.
Court Disposition
partially varied and confirmed
Orders
- Fine on first count increased to £75.
- Fine on second count reduced to Sh. 500.
Full Case Text
Judgment text and source record
16 paragraphs
## CRIMINAL CONFIRMATION
### Before NIHILL, C. J., and COFFEY, Ag. J.
# REX. Prosecutor
v.
# GULAM HUSSEIN HASSAM HABIB, Accused
#### Confirmation Case No. 1018 of 1947
Criminal law and procedure-Liquor Ordinance, 1934-Arms and Ammunition Ordinance, 1925—Penalties.
The accused was convicted for the second time of an offence against section 44 of the Liquor Ordinance, 1934, and was fined Sh. 1,000. He was further convicted of an offence against section 12 (1) of the Arms and Ammunition Ordinance, 1925, and was fined Sh. 500 and the revolver was ordered to be destroyed.
Held (5-12-47).-(1) That as there was a previous conviction under section 44, Liquor Ordinance, 1934, the minimum fine must be Sh. 1,500.
(2) That the revolver should have been ordered to be forfeited to the Crown.
#### Maini for the Accused.
Modera for the Crown.
ORDER.—This is a case which comes before us for confirmation of sentence. The accused was convicted on three counts, one for an offence against section 44 of the Liquor Ordinance, 1934, and secondly for an offence against section 39 of the same Ordinance, and thirdly for an offence against section 12 (1) of the Arms and Ammunition Ordinance, 1925. In passing sentence on the first count the Magistrate overlooked that as the accused had a previous conviction for an offence under the section, it was obligatory on him to impose a fine of not less than $£75$ . The Magistrate actually imposed a fine of £50. On this count, therefore, we substitute a fine of $£75$ for the fine imposed.
On the second count the Magistrate imposed a fine of Sh. 1,000. In confirmation we reduce this fine to one of Sh. 500 in view of the fact that the Crown does not ask for any actual increase in the net amount of the fines imposed upon the accused. We confirm the sentence imposed upon the accused with regard to the third count.
Two other points have been raised at the hearing of this matter, one by the Crown and one by the counsel for the accused. The first point is that the Magistrate had no power to order the destruction of the revolver, which formed the subject of the third count. We agree that all that the Magistrate could do under the Arms Ordinance was to order its forfeiture from the accused; this he did. The disposal of a weapon after forfeiture is a matter solely within the discretion of the Crown. On the second point, counsel for the accused has asked us to make an order for the payment of the fines by instalments. This is not an order which we feel disposed to make in confirmation proceedings although we may have the power to do so.
In returning the record to the Magistrate, however, with this order, we direct him to hear an application from the accused and to make such order as he considers just,