Written by: Averroes
(1.0) Introduction
The issue of air-soft and toy guns piqued the interest of the author when he recently found a news article. The article concerned three men who were caught on video brandishing a fake semi-automatic pistol, as they gathered outside a house. It was a miracle to have found the video circulating on Whatsapp. This is because, we as society will never know whether the gun are real or not.
It could potentially pose a dangerous risk to the people and affect public safety. The three men admitted their mistakes as they were drunk during that time. Therefore, they are being investigated as under section 36 of the Arms Act 1960.
What is even worse, in another twisted turn of events, the police seized more than a hundred imitation gun components from a premise inside a shopping complex. The shop sold children toys, including the imitation guns for four months without approval from the authority.
The offence is under section 36(1) of the Arms Act 1960 which provides a year prison term or up to RM50,000 fine, or both, if convicted. The police explains that the provision states; selling, keeping or possessing any imitation firearms.
Another incident, at traffic, a man was honked as he was blocking an e-hailing driver to pick up her client. The man reacted by getting out of his car and pointing a toy gun at her. She lodged a police report after and the police raided a house and apprehended the suspect. The police found the black toy gun with the magazine filled with bullets. However, the suspect was investigated under section 506 of the Penal Code instead.
Across the Johorean causeway, in Singapiore, a man was accused of selling replica guns online and faced with a trial for an offence under the Arms and Explosives Act. He had 156 guns in possession which could trigger pellets. This came when Mr. Tan (witness) found a 'gun' inside a box containing books and magazines as his grab driver client told. They turned out to be airsoft handguns.
(2.0) Legal viewpoint
(2.1) Case laws
How to we know distinguish what is an imitation gun?
In Public Prosecutor v Rosni bin Ismail [2021] MLJU 313, the accused possessed an imitation arm at a car workshop which is an imitation of an air rifle. The accused pleaded guilty. To determine whether a gun is an imitation or not, the Prosecution found on the facts of the case that;
The gun could not ignite or discharge bullets, because when tested, there was no chemical reaction to cause a combustion or ignition of fire. Therefore, it could not shoot live bullets and considered to be an imitation gun.
Surprisingly, imitation guns may be used as a defence if it involves firearms, let us observe an example;
According to Public Prosecutor v Ong Poh Cheng [1996] 4 MLJ 279, the accused tried to raise the defence of imitation gun against the offence of attempt culpable homicide and robbery under section 3 of the Firearms (Increased Penalties) Act 1971.
However, it was an actual gun. If not, why would the constables take cover and deploy themselves when they are under attack by a lethal weapon. There were even exchanges of ire. What is important in this case was that, the court affirmed that, "even with an imitation gun, it is a brazen and audacious act of extreme boldness and daring, requiring composure, resolve and nerve."
(2.2) Defences under the Arms Act 1960
If we are caught in a pickle by possessing an imitation gun, including the said airsoft guns or toys, then it is not a crime and he is outright acquitted if; according to section 36 of the Arms Act 1960, that;
(a) Under 14 years old
(b) To import or be in possession, we need to have a licence from the Chief Police Officer (CPO) of the State where he lives (for example, if we live in Selangor, ask for the licence from the Selangor CPO or our local area) or, that if that it is the ordinary business he carries out, then it is not a crime.
The imitation gun can also be destroyed by the CPO under the direction of the Magistrate and the person who possessed it will not get his compensation back! This is troubling news for paintball enthusiasts, as their guns are really expensive to maintain and acquire. Stakeholders in such sport advocate for an amendment to section 36 of the Arms Act 1960.
(3.0) Conclusion
To conclude, in Malaysia owning an airsoft gun or toy requires us to have a license!?
Quite shocking really, imagine countless of children out there or those who experienced childhood purchasing toys at the kedai runcit that fired plastic pellets and ones that popped smoke. However, children that owns imitation guns would not commit such offence under the law. Perhaps due to their age and how the public quickly assumes that if a children were to hold such gun, they know it is a toy.
However, if adults were to hold a plastic gun, the public would have a different perception as they assume that is real, because of the nature of harm between a grown adult and children. We can see the social phenomenon here of the different treatment between adults and children.
Does that mean our kedai runcit is liable for an offence under the law. The defence did state that if it is in their ordinary business, such as they have been doing it for generations and nobody has complained, then it is not a crime, probably because the people associated with the kedai runcit normalised the sale of the imitation guns in their locality or region. Though, notice that the nozzle of the toy gun is orange in colour to distinguish it with the real gun?
However, our society is changing and if an unfamiliar kedai runcit opens in a new area and sells it to the public, then there would be the feeling of apprehension and possible threat to safety. People nowadays do not feel safe as back in the days with toy guns or air soft.
Our mentality and awareness are changing to promote safer consumer-friendly toys. The people, including children have been harmed by imitation guns, children have gone blind by the shots, choked by the pellets and have permanent scars after having a shooting spree with their friends.
An airsoft gun could tear a person's skin tissue and even penetrate through small rodents, birds and other animals, instantly killing them! More action must be taken. Those could use imitation guns as an opportunity to strike fear to others as a form of criminal intimidation when robbing or harassing others, even when they are fake!
(4.0) References;
Fardy Bungga. (February, 2019) Police seize RM60,000 worth of imitation firearms. Retrieved from, https://www.nst.com.my/news/crime-courts/2019/02/462221/police-seize-rm60000-worth-imitation-firearms
Gungho Cowboy. (November, 2013) CRACKDOWN ON AIRSOFT AND PAINTBALL OWNERSHIP IN MALAYSIA. Retrieved from, https://www.popularairsoft.com/crackdown-airsoft-and-paintball-ownership-malaysia
Raja Noraina Raja Rahim. (March, 2021) Toy gun 'scare' lands man in lock-up. Retrieved from, https://www.nst.com.my/news/crime-courts/2021/03/671108/toy-gun-scare-lands-man-lock
Shaffiq Alkhatib. (April, 2021) Man accused of selling replica guns allegedly tried to get Grab driver to deliver goods. Retrieved from, https://www.straitstimes.com/singapore/courts-crime/man-accused-of-selling-replica-guns-allegedly-tried-to-engage-unsuspecting
Comments
Post a Comment