JUDGMENT

Elizabeth M. Chapman JC:

In the lower Court, the appellant was convicted of the offence specified in the following amended charge:

That you, on or about 4 February 1988, at about 10.20 a.m., at No.72, Istana Road, Kuching, in the State of Sarawak, did discharge an arm, to wit, a revolver 'Smith & amp; Wesson', 38 bearing the No.9447 F.6 and J.644908 and injured one Mariam Binti Fadil, without lawful justification or excuse for causing such injury or that you took all reasonable precautions to ensure that no such person was injured by such discharge, and you thereby committed an offence punishable under s.37 of the Arms Act, 1960.

He was sentenced to one year's imprisonment and a fine of RM5,000 in default 6 months' imprisonment.He now appeals to this Court against both conviction and sentence on a number of grounds. I propose to deal with the first two grounds together as they are inter-related.The point argued here is that the Magistrate had relied on the evidence of PW1 whom he considered as an experienced armament officer and as a result of this reliance on PW1 he had failed to consider whether the revolver [Exh.P2] was defective or not and capable of an accidental discharge. PW1 who has been trained to deal with arms and ammunition as well as explosives testified that there were two ways the gun could operate, the single action and the double action, the single action being to cock the revolver and the double action to pull the trigger.For the gun to operate he said the chambers must be in line with the barrel and during unloading there was no possibility of an accidental discharge as the cylinder and barrel were not in line. PW1 further testified that he had never examined the revolver; this is the gist of the appellant's complaint in grounds (a) and (b). It was submitted on behalf of the appellant that as PW1 had not examined the gun, it was fatal to the prosecution case as there was a possibility that the gun was defective and the discharge was accidental and that the lower Court had failed to consider these possibilities.

The Magistrate had in his judgment accepted PW1 as an expert in arms and his evidence was carefully considered and believed.This finding of the Magistrate is, in my view, not without basis.It is further noted that the defence did not challenge PW1's qualifications and expertise nor was his evidence shaken.In fact, he confirmed under cross-examination that he had never come across a case where a revolver could accidentally cock and his evidence that one would require 3 to 5 pounds of pressure on the trigger to pull the trigger for a single action and 5 to 10 pounds pressure on the trigger for a double action, was never challenged.In addition to PW1's evidence is the chemist report [Exh.P6(a)] which disclosed that the revolver [Exh.P2] had been test fired and the expended cartridge casing (marked as E2 in the chemist report) was fired by the revolver.Using the same revolver the chemist had successfully test fired five live rounds of ammunition, thus showing Exh.P2 was serviceable.There is nothing in the chemist report to show that Exh.P2 was defective or oily as claimed by the appellant.

I find for the reasons stated above that grounds (a) and (b) of the petition of appeal are without merit and therefore fail.

Ground (c) relates to the failure of the Magistrate to consider effectively or at all the defence version that the discharge of the firearm was purely accidental and that the revolver was probably defective.The appellant had in his defence claimed that the revolver was oily; this has been dealt with above when I dealt with the chemist report.In addition to that, PW2, the enquiry room officer who handed Exh.P2 to the appellant prior to the incident was never cross-examined on this.As PW2 was the officer who handed Exh.P2 to the appellant before he went on his rounds he would be in the best position to tell the Court whether the revolver was oily or not, yet the defence did not cross-ex