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Rex v Habib (Confirmation, Case No. 1018 of 1947) [1947] EACA 59 (1 January 1947)
- Citation
- [1947] EACA 59
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Coffey AgJ, Nihill, C.J
- Case number
- Confirmation, Case No. 1018 of 1947
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Coffey AgJ, Nihill, C.J
- Case number
- Confirmation, Case No. 1018 of 1947
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
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.
- Order for destruction of revolver set aside; revolver to be forfeited to the Crown.
- Magistrate directed to hear application for payment of fines by instalments.
02
Material facts
Parties
Rex
Applicant Counsel: ModeraGulam Hussein Hassam Habib
Respondent Counsel: MainiAmounts and remedies
- Fine for First Count (section 44, Liquor Ordinance): GBP 75
- Fine for Second Count (section 39, Liquor Ordinance): UGX 500
03
Procedural history
Posture
Criminal Confirmation / Confirmation of Sentence
04
Questions and positions
Legal issues
- 01
Whether the minimum fine for a repeat offence under section 44 of the Liquor Ordinance, 1934, was correctly imposed.
- 02
Whether the Magistrate had the power to order destruction of the revolver under the Arms and Ammunition Ordinance, 1925.
- 03
Whether the fines imposed should be paid by instalments.
Party arguments
- Applicant
- The Crown argued that the Magistrate erred in imposing a fine below the statutory minimum for a repeat offence under section 44 of the Liquor Ordinance, 1934, and that the order for destruction of the revolver exceeded the Magistrate's powers under the Arms and Ammunition Ordinance, 1925.
- Respondent
- Counsel for the accused requested that the fines be allowed to be paid by instalments and did not oppose the Crown's submissions regarding the statutory minimum fine or the disposal of the revolver.
05
Court’s reasoning
Legal principles
- 01
Section 44, Liquor Ordinance, 1934
A minimum fine must be imposed for repeat offences under section 44 of the Liquor Ordinance, 1934.
- 02
Section 12(1), Arms and Ammunition Ordinance, 1925
A Magistrate may only order forfeiture, not destruction, of a weapon under the Arms and Ammunition Ordinance, 1925.
06
Ratio, limits and disposition
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.
Obiter and limits
- The disposal of a weapon after forfeiture is a matter solely within the discretion of the Crown.
- The court may have the power to order payment of fines by instalments, but it is not disposed to do so in confirmation proceedings.
Court disposition
partially varied and confirmed
- Fine on first count increased to £75.
- Fine on second count reduced to Sh. 500.
- Order for destruction of revolver set aside; revolver to be forfeited to the Crown.
- Magistrate directed to hear application for payment of fines by instalments.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
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,
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