Athumani Nyambo and another v. R., Crim. App. 1-DSM-72, 24/5/72, Onyiuke, J.

 Athumani Nyambo and another v. R., Crim. App. 1-DSM-72, 24/5/72, Onyiuke, J.

The 1^st appellant was convicted of various offences against the Fauna Conservation Ordinance. Notice was served upon the 2^nd appellant, the reputed owner of the rifle used by the first appellant, to show cause why it should not be forfeited under s. 53 of the Ordinance.

            Held: (1) “Mr. Raithatha, learned Counsel for the appellant has attacked the order of forfeiture as being had in law and unjustified in the circumstances of the case. In arguing the appeal Mr. Raithatha referred to certain documents tendered in the case. There was a General Game licence issued to the 1^st appellant which entitled him to hunt animals of the kind specified in the 3^rd Schedule to the Ordinance but this

did not authorize him to hunt in a Game reserve. The 1^st appellant had also a licence to bear firearms. The 2^nd appellant had a valid licence to bear arms and had also a valid permit for temporary transfer of the rifle to the 1^st appellant. Mr. Raithatha’s contention was that the transfer of the rifle to the 1^st appellant was lawful and that the transfer was in the nature of a loan and not an absolute transfer and that the 2^nd appellant remained the owner of the rifle; that there was nothing to show  that the 2^nd appellant connived in the commissioner of the offences by the 1^st appellant and that since the 1^st appellant could lawfully use the rifle without necessarily committing the said offences it was wrong to order that the rifle should be forfeited. He cited R. v. Musa (1967) H.C.D. 299 and R. v. Saidi (1970) H.C.D. 149. In R. v. Musa (supra) Hamlyn J. held that it would be unjust to penalize the owner of a gun who in no way connived in the commission of the offence by another person and in respect of an offence committed without his knowledge. The facts in that case were that the accused person was charged under Section 12 of the Fauna Conservation Ordinance Cap. 302 with hunting an animal without a game licence and was convicted. An order was made forfeiting the gun with which he went hunting. The owner of the gun filed an affidavit in the High court stating that he was out of town when the accused, without his permission, used his gun and that he knew nothing about the events constituting the offence. In R. v. Saidi (supra) the order of forfeiture was made without giving the owner of the gun an opportunity to be heard. Georges C.J. in setting aside the order and remitting the case for further consideration by the District Court stated as follows: - “It is clear on the authorities that an order for the forfeiture of a gun should not be made under the Fauna Conservation Ordinance or any other comparable legislation unless the owner has had an opportunity of advancing reasons why the order should not be made” The present case is clearly distinguishable from these two cases. In R. v. Musa the gun was used without the knowledge and consent of the owner by a person who had not game licence. The statement by Hamlyn J. must be considered in the context of the particular case. In R. v. Saidi the owner of the gun was not given any opportunity to be heard before the order for forfeiture was made. In the present case the owner of the gun voluntarily transferred or loaned the gun to the 1^st appellant for purposes of hunting game. It would, in my view, defeat the object of Section 53 of the Fauna Conservation Ordinance to make it a condition that the owner of a gun should connive in the commission of an offence by the person to whom he loaned the gun, that is to say, that he must be aware of all the facts constituting the offence before an order of forfeiture can be validly made. Such a condition that the owner of a gun should connive in the commission of an offence by the person to whom he loaned the gun, that is to say, that he must be aware of all the facts constituting the offence before an order of forfeiture can be validly made. Such a condition would require, in the instant case, proof that the 2^nd appellant knew that the 1^st appellant proposed or intended to hunt in a game reserve or to enter therein before an order of forfeiture could be validly made. This can rarely be proved and it is difficult to conceive that the legislature intended to impose such an intolerable burden on the prosecution. The fact that the rifle may be used in circumstances in which the 1^st appellant used it ought to be apparent to the and appellant and was a normal risk which an owner ran by transferring or loaning his rifle to another.”  (2) Appeal dismissed.