Firearms dilemma
Legislators conflicted over illegal possession clause in new Firearms Bill
PROPOSED changes to the new firearms regulations Bill could see licensed holders who use their weapons to commit offences, or act outside of the ambit of their permit, liable to higher sentences and being barred permanently from holding a licence.
Under the current firearms licensing regime, if a firearm holder is found guilty of committing an offence with a legal weapon, the possession of that weapon is deemed illegal. But a recommendation has been made by stakeholders for the introduction of the offence of “unlawful use of a firearm” to substitute illegal possession, for the purposes of protecting persons’ records.
However, at Thursday’s meeting of the Parliamentary joint select committee which is examining the 2022 Firearms (Prohibition Restriction and Regulation) Act, post-submissions, chief technical director in the national security ministry, Rohan Richards said there is no need for this additional offence as “unlawful use” automatically triggers an illegal possession charge. He stressed that the courts have accepted the existing regime which treats unlawful use as a basis for illegal possession. Minister of Legal and Constitutional Affairs Marlene Malahoo Forte pointed out that although a licensed firearm holder may be treated with more leniency, it does not mean that a breach of their permit should be treated lightly. She said in contemplating the provisions, illegal use of licensed firearms could be made an aggravating factor in determining penalties. However, she said many licensees are concerned about the current legal framework for such offences.
“This has raised a lot of concerns, so we have a lot of case law around it,” she noted, arguing that in developing the Bill, the intent was to “take out some of the sting out of that”, so that once an individual is licensed to hold the firearm, if they commit an offence with it they would be charged for the offence itself, but they would not be made liable to the penalty for illegal possession.
She explained that a mechanism is now being implemented to enable law enforcement to trace and hold people accountable, and that this would neutralise the need to render possession illegal when individuals operate outside the boundaries of their licences.
“Once you have gone through that process, even if you commit an offence where the firearm is featured, you would be punished for the offence. Using the firearm may be an aggravating factor that could make you liable to a higher sentence, but it certainly wouldn’t stretch back and render your possession of the firearm illegal,” she emphasised.
She said there should therefore be clarity in keeping with the policy intent where when a licensed firearm is used to commit an offence, the use of that firearm may be regarded as an aggravating factor to increase the sentencing.
Separately, the former attorney general said using the firearm to commit an offence contrary to the terms and conditions of the licence would then be a matter for the Firearm Licensing Authority (FLA) to decide whether to bar the person from holding a licence, or for a period of time.
Further, committee chairman and National Security Minister Dr Horace Chang said drafters had agonised over how to create separation of the unlicensed firearm and licensed firearm holders in relation to the illegal possession offence.
“We have to look at how we deal with the licensed firearm holders who have gone through the process. We have had cases where people who have taken care to manage their firearm well and in the face of challenges sometimes make errors… [but] it’s on their record — a charge of illegal possession is a charge of illegal possession. It has great implications for the person involved, even if they are found innocent,” he said.
In making its case for the promulgation of the Bill, the Government noted that 85 per cent of the murders are committed with a firearm, and that most gun-related crimes are committed using illegal weapons.
The legal framework is aimed at tackling the trafficking, manufacturing of, and activities associated with illegal weapons, distinctly from firearms that are registered by the FLA. It also proposes mandatory minimum prison terms for certain offences.