§ 5 — Meaning of “possession” and associated terms

5.—(1) For the purposes of this Act, a person has “possession” of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance if —(a)

the person, being an individual, carries or has an object or a thing on his or her person, including something carried or worn by the person (called in this section physical possession), and the individual knows or has reason to believe that the object or thing is a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance;

(b)

the person has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(c)

the person has the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance in the care, control or management of another person, including storing it with that other person;

(d)

the person drives, flies or otherwise operates (even by remote control) any vehicle, vessel, aircraft or other device conveying or otherwise carrying the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(e)

the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance is in or on any place or premises, owned, leased or occupied by, or in the care, control or management of, the person; or

(f)

the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance is within any container owned or in the care, control or management of, the person.Illustration

A buys a pistol illegally. A hands it to B to look after it for him while A appears in court. A still has the care, control or management of the pistol and so has possession of the gun. B holds the pistol and also has possession of the gun.

A is a member of a gun club which provides an armoury for their members to store their handguns. The gun club and A each have possession of A’s handgun deposited at that armoury. A is subsequently elected as armourer of the gun club. The gun club and A each have possession of all handguns held in the armoury of the gun club for the members of the gun club.

(2) Without limiting subsection (1), for the purposes of this Act, a person has possession of a gun, an explosive device or a weapon if —(a)

any major part of the gun, or any part of an explosive device or weapon (as the case may be) is in the person’s possession;

(b)

other major parts of the gun, or any other parts of an explosive device or weapon (as the case may be) are in the possession of another person or persons;

(c)

at least one of the other persons is in possession of —(i)

the other major part or major parts of the gun; or

(ii)

the other part or parts of the explosive device or weapon, as the case may be,

for an agreed purpose with the person; and

(d)

those parts would make up the gun, explosive device or weapon (as the case may be) if fitted together,

and each of the persons is taken to be possessing the gun, explosive device or weapon, as the case may be.

(3) However, for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is at a place or premises owned, leased or occupied by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is at the place or premises;

Illustration

C buys an apartment from D. The apartment has newly installed false ceiling boards, which D represents to C is paid for by the apartment owner above as part of the settlement for damage from water leakage from the apartment above. C obtains confirmation from the apartment owner above of that settlement. D owns a gun but, before moving out, D hides it in a cavity in the false ceiling. C does not know that D hid the gun among the ceiling boards. C does not have possession of the gun because C does not know that the gun is among the ceiling boards.

(b)

someone else who is authorised to possess the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance —(i)

is also at the place or premises; or

Illustration

E is giving F a lift in her car to a sports complex that has an archery range. F is licensed and has his archery set comprising a long bow with him. E is not in possession of the long bow because F is authorised to possess the weapon and F is in the car.

(ii)

has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

Illustration

G and H share a house. H is licensed and stores his spear gun in the house in a cabinet to which only H has a key to. G does not have access to the spear gun or cabinet key and has nothing to do with the spear gun. G is not in possession of the spear gun even when H, the person authorised to possess the spear gun, is not at the house, because H is the person who has the care, control or management of the spear gun.

(c)

someone else who is not authorised to possess the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(d)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(4) In addition to subsection (3), for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) is in a container owned by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) is in the container;

(b)

someone else has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(c)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(5) In addition to subsections (3) and (4), for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is in, on or fitted to a vehicle, vessel, an aircraft or other device driven, flown or otherwise operated (even by remote control) by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is in, on or fitted to the vehicle, vessel, aircraft or other device;

(b)

someone else has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(c)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(6) A defendant to a prosecution for an offence under this Act who wishes to rely on a matter mentioned in subsection (3), (4) or (5) has the evidential burden in relation to the matter.

(7) For the purposes of this Act, a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance owned by the Government and for which a head of a department or division in a Ministry or an Organ of State is responsible, is taken to be owned by the Government.

(8) To determine whether a person has the care, control or management of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance, for the purposes of this Act, each of the following must be considered:(a)

whether the person knows about the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(b)

whether the person can use or transfer the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(c)

whether the person can control or prevent someone else from using or having physical possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance.

—(1) For the purposes of this Act, a person has “possession” of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance if —(a)

the person, being an individual, carries or has an object or a thing on his or her person, including something carried or worn by the person (called in this section physical possession), and the individual knows or has reason to believe that the object or thing is a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance;

(b)

the person has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(c)

the person has the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance in the care, control or management of another person, including storing it with that other person;

(d)

the person drives, flies or otherwise operates (even by remote control) any vehicle, vessel, aircraft or other device conveying or otherwise carrying the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(e)

the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance is in or on any place or premises, owned, leased or occupied by, or in the care, control or management of, the person; or

(f)

the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance is within any container owned or in the care, control or management of, the person.Illustration

A buys a pistol illegally. A hands it to B to look after it for him while A appears in court. A still has the care, control or management of the pistol and so has possession of the gun. B holds the pistol and also has possession of the gun.

A is a member of a gun club which provides an armoury for their members to store their handguns. The gun club and A each have possession of A’s handgun deposited at that armoury. A is subsequently elected as armourer of the gun club. The gun club and A each have possession of all handguns held in the armoury of the gun club for the members of the gun club.

(2) Without limiting subsection (1), for the purposes of this Act, a person has possession of a gun, an explosive device or a weapon if —(a)

any major part of the gun, or any part of an explosive device or weapon (as the case may be) is in the person’s possession;

(b)

other major parts of the gun, or any other parts of an explosive device or weapon (as the case may be) are in the possession of another person or persons;

(c)

at least one of the other persons is in possession of —(i)

the other major part or major parts of the gun; or

(ii)

the other part or parts of the explosive device or weapon, as the case may be,

for an agreed purpose with the person; and

(d)

those parts would make up the gun, explosive device or weapon (as the case may be) if fitted together,

and each of the persons is taken to be possessing the gun, explosive device or weapon, as the case may be.

(3) However, for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is at a place or premises owned, leased or occupied by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is at the place or premises;

Illustration

C buys an apartment from D. The apartment has newly installed false ceiling boards, which D represents to C is paid for by the apartment owner above as part of the settlement for damage from water leakage from the apartment above. C obtains confirmation from the apartment owner above of that settlement. D owns a gun but, before moving out, D hides it in a cavity in the false ceiling. C does not know that D hid the gun among the ceiling boards. C does not have possession of the gun because C does not know that the gun is among the ceiling boards.

(b)

someone else who is authorised to possess the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance —(i)

is also at the place or premises; or

Illustration

E is giving F a lift in her car to a sports complex that has an archery range. F is licensed and has his archery set comprising a long bow with him. E is not in possession of the long bow because F is authorised to possess the weapon and F is in the car.

(ii)

has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

Illustration

G and H share a house. H is licensed and stores his spear gun in the house in a cabinet to which only H has a key to. G does not have access to the spear gun or cabinet key and has nothing to do with the spear gun. G is not in possession of the spear gun even when H, the person authorised to possess the spear gun, is not at the house, because H is the person who has the care, control or management of the spear gun.

(c)

someone else who is not authorised to possess the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(d)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(4) In addition to subsection (3), for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) is in a container owned by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance (as the case may be) is in the container;

(b)

someone else has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(c)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(5) In addition to subsections (3) and (4), for the purposes of any proceedings for an offence under this Act, a person is not taken to have possession of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance just because the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is in, on or fitted to a vehicle, vessel, an aircraft or other device driven, flown or otherwise operated (even by remote control) by the person if the court is satisfied, on a balance of probabilities, that —(a)

the person did not know and could not reasonably be expected to have known that the gun, major part of a gun, gun accessory, explosive or explosive precursor, weapon or noxious substance (as the case may be) is in, on or fitted to the vehicle, vessel, aircraft or other device;

(b)

someone else has the care, control or management of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance; or

(c)

on the evidence, the person was otherwise not in possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance, as the case may be.

(6) A defendant to a prosecution for an offence under this Act who wishes to rely on a matter mentioned in subsection (3), (4) or (5) has the evidential burden in relation to the matter.

(7) For the purposes of this Act, a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance owned by the Government and for which a head of a department or division in a Ministry or an Organ of State is responsible, is taken to be owned by the Government.

(8) To determine whether a person has the care, control or management of a gun, a major part of a gun or a gun accessory, an explosive or explosive precursor, or a weapon or noxious substance, for the purposes of this Act, each of the following must be considered:(a)

whether the person knows about the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(b)

whether the person can use or transfer the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance;

(c)

whether the person can control or prevent someone else from using or having physical possession of the gun, major part of a gun, gun accessory, explosive, explosive precursor, weapon or noxious substance.