HKSAR v. Chan Hoi Ngam

CACC000243/1999

CACC 243/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 243 OF 1999

(ON APPEAL FROM HCCC 335 OF 1998)

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Coram: Hon. Stuart-Moore, V.-P., Leong, J.A. and Gall J.

Date of Hearing: 24 November 1999

Date of Judgment: 24 November 1999

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J U D G M E N T

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Stuart-Moore V.-P. (giving the judgment of the Court):

1. On 10 February 1999, the Applicant pleaded guilty in the Court of First Instance to a charge of possessing arms and ammunition without a licence. He was sentenced by Stock J. on 23 April 1999 to seven years and four months' imprisonment and he now seeks leave to appeal against this sentence.

2. The charge related to the possession of a 9 mm short calibre self-loading pistol, two pistol magazines designed for a 9 mm short calibre pistol, a 9 mm pistol silencer, a metal aerosol canister containing what is commonly referred to as CS gas, and 13 rounds of 9 mm short calibre ammunition, without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238.

3. The Applicant was the proprietor of a company with premises in Tsuen Wan where the offence was committed. Police went to his office on 1 June 1998. He was searched and found to be carrying a self-loading pistol inside a holster which was tucked into his waist. This weapon was loaded with seven live 9 mm rounds. He informed the police that it was for self-defence. In a briefcase in his office, police found an aerosol canister, a spare magazine containing a further six live rounds of 9 mm ammunition and a silencer. The canister contained CS gas.

4. The items referred to in the charge were all in working order. In addition to the weapons referred to in the charge, police found under the desk in his office an extendable baton which the Applicant also said he kept for self-defence.

5. The Applicant admitted to police purchasing the pistol from the mainland on 27 May 1998, a few weeks before his arrest, for $8,000. The silencer, he said, was supplied at the same time although he maintained that he did not know what it was. He said that he had originally placed the ammunition in a separate place to the pistol. The Applicant also told police that he had been threatened and harassed several times by unknown persons from the Sing Wo triad society two to three weeks before his arrest.

6. The judge took a starting point of eleven years and then reduced this by one-third to reflect the plea of guilty, having first conducted a Newton inquiry in order to establish the proper basis on which sentence should be passed. Mr. McNamara, on the Applicant's behalf, submitted that such a starting point for the simple possession of a firearm was too high, and that the judge had not given sufficient weight to the mitigating factors and, in particular, to two of those factors. These were, as the judge accepted, that there was no evidence that the Applicant intended to use these weapons for crime and that the Applicant nurtured a fear that he might be the subject of an attack. Mr. McNamara placed some reliance upon the judge's findings, following the Newton hearing, which are summarised in writing and were adopted by Mr. McNamara in his submissions today.

7. The Newton inquiry was necessitated in the following circumstances. Having heard the broad facts of the case, the judge enquired as to the truth of the Applicant's assertion that he had been under threat at the time of the offence. Prosecuting counsel was unable to give any sensible answer, not having taken the trouble, it seems, to have found out in advance of the date fixed for plea. The trial judge then adjourned for the prosecution to do the research which should have done beforehand. The findings of the judge, arising from the Newton hearing, were in these terms:

"I have heard the evidence of the defendant's former work subordinates and of a number of ICAC officers. I have studied correspondence produced, the gun itself and other hard exhibits, and I have studied the transcript of the interviews which the defendant had upon, or shortly after, his arrest. And I have heard the oral testimony of the defendant. I find as follows:

First, the defendant did make a complaint to the ICAC in 1993 and 1994 of alleged corruption involving the senior official and others. The corruption was said to be connected with a company for which the defendant had been working.

Second, it seems that the defendant also made allegations in a civil action or which had to do with a civil complaint of fraud involving the same company, this also happened in about early 1994, at a time when the defendant was living in Holland .

Three, I am prepared to accept that in January 1994, the defendant was the subject of a serious threat and also an assault in Holland, although his allegation at the time to the ICAC was that that was in connection with the fraud allegation in the civil action and not the corruption complaint.

Four, in 1995 the ICAC closed the books, as it were, on the corruption allegation.

Five, I am satisfied that the defendant's offices were the subject of an attack in 1997, when two men came and smashed a computer. I am satisfied that the men did not, as the defendant suggests, ask for him specifically, but that it was an attack directed at the company, not related to the ICAC matter, which at that date was not a live matter. And in saying that I bear in mind the defendant's evidence which is, as I shall (indicate), I have not found impressive.

Six, in April 1998, the senior official named by the defendant in his original allegations of corruption was arrested on the mainland.

Seven, I am satisfied that the defendant again contacted the ICAC in May 1998, and renewed, or wished to renew, his complaints of corruption, or to provide further information.

Eight, I find that the defendant was not the subject of actual renewed threats in 1998, certainly not in relation to the ICAC complaints which he had made at any stage. I am supported in this conclusion by the factors I find, that he mentioned such threats to no-one, and it is inconceivable that he would not have done so to the ICAC, given his readiness to tell them in 1994 about what had happened in Holland, and given the fact that in 1997, he availed himself quickly of protection.

I find he did not tell the ICAC, and that he did not tell the police, and that he did not tell his staff about any such threats, nor did he tell his staff to take any precautions, nor were any security measures taken at his office, nor were any security measures taken at his home, nor was any request expressed, or implied, made for protection.

It is noteworthy that the defendant was in contact with the ICAC on several occasions in May, at the very time that he asserts he was the recipient of these threats, and that he spoke to a senior officer within the ICAC as late as 29 May, two days before his arrest and after he was, on any view, in possession of this gun and these bullets and at a stage when he must, had the allegations of threats been true, have been very fearful about the threats.

All of this is to be looked at in the light of the further fact that the defendant is a gun enthusiast. A fact which is now incontrovertible, that he was keen on guns, showed magazines to at least one work colleague about guns, and told that colleague some time ago that he had a gun, or guns, in other countries. It is also incontrovertible that he did not only have a gun, and perhaps one or two bullets, but he had a gun and 13 bullets and a silencer.

One is bound to suspect, therefore, that he had this gun as part of some collection or enthusiasm, quite divorced from any question of threats actual or feared. There is no evidence that he intended to use these weapons for crime, and I shall proceed on the basis that he did not.

The defendant has not been frank in his evidence, or with the police when they questioned him. His protestations to the police of ignorance about the silencer, and what it was, was false, given the revelation about his expertise with guns, an expertise which he did not at the time of his arrest appreciate would emerge. He has not been frank with this court, about when or where he acquired the other weapons in his office, the canister of CS gas and the baton. I find that he knows full well where he bought them, when, and why. He was not an impressive witness and there was much about his evidence which I simply do not believe.

I do not believe that when he purchased this weapon, even if he did purchase it in late May, that he did not examine it, or know what came with it. And that is disturbing, because with it came 13 bullets and a silencer. I take the point that the fact that there was a raid on 1 June suggests a tip-off. And that in turn provides some support for the suggestion of purchase of the gun in late May. Quite when the gun was purchased is a matter about which I cannot be sure.

I am, in the circumstances, prepared to assume that he did nurture some fear, that he might be the subject of an attack, either as a result of his corruption allegations, or in connection with some other matter, and I am prepared to assume for sentencing purposes that he carried the gun for that reason. If there were any threats they were not in relation to the ICAC matters, and he has not suggested that there were any other threats. But I am satisfied beyond reasonable doubt that he told no law enforcement authority about any threats, and he made no approach to the police, or to the ICAC about such threats."

8. The judge in his sentencing remarks, having adjourned sentence overnight at the conclusion of the speech in mitigation, went on to say:

"I am sure that you neither mentioned any threats to the authorities nor made any approach to any of them about such threats, nor did you seek any protection. It may be that you felt, after 1994, that you had better arm yourself. Hence the comments we see in your interviews - which, for reference, are on pages 172 and 198 of the bundle - that you did not want the 1994 incident to happen again. It may be that because of your renewed approach to the ICAC in 1998 you felt there may be a renewed potential threat. Or it may be that you felt threatened in connection with some entirely different matter.

How real this was and how much your connection with the gun world and your enthusiasm for guns encouraged thinking of this type, I cannot say. But I shall assume that you felt that you needed to protect yourself. Yet, even if that were so, such circumstances provide scant mitigation. For there was in fact no call for you to arm yourself as you did.

In the first place, the matter was evidently not sufficiently worrying for you to alert your staff to take security precautions at your office. And I do not believe your evidence that you had such precautions in mind. You said nothing to your staff at all. You took no precautions at home and you did not say anything to the authorities. Secondly, and more importantly, it was in any event not for you to act on your own in this way.

If you'd felt threatened, you ought to have approached the police or the ICAC for such protection as you felt was necessary in the circumstances. You had availed yourself of such protection before and without any evident problems on that occasion. Instead, what you did was to arm yourself with live bullets, CS gas, and a gun with a silencer. And you carried it, as I find, in public and in your office. The gun was loaded and you were prepared in such circumstances if necessary to use it, even, according to your own statement to the police, should it have turned out to be necessary, in the street.

In such circumstances, as I say, a fear by you that you might be the subject of some attack provides very little mitigation in this case."

9. It was then that the judge adopted the starting point of eleven years, having reviewed a number of authorities which suggested that eight years' imprisonment, after plea, for possessing a firearm was appropriate. In fact, therefore, he adopted a slightly lower starting point than he might have done as those authorities suggested that a twelve-year sentence starting point would be appropriate after trial. In R v Ho Chun, (1992) 1 HKCLR 86, the Court of Appeal encouraged, in the light of the number of armed robberies which were then taking place, an upward revision of the previous firearms guideline case which had set "at least six years" as the appropriate sentence for a plea of guilty to the possession of arms and ammunition. The court indicated that it would be unlikely to interfere with a sentence of "at least eight years" in such cases.

10. This was not a case in which it was suggested that the Applicant was an armed robber, but his untruthful story about why he had these weapons would plainly have left any court concerned as to his true motives. There were, as the trial judge pointed out, a number of features in the case which, in any event, aggravated the offence. We have in mind that the firearm was being kept on the Applicant's body in a fully loaded state and that he was prepared to carry that weapon in public places away from his own premises. Furthermore, the silencer associated with that gun was not consistent with self-defence. The trial judge was aware that the Applicant was a gun enthusiast. It was this information that gave the lie to the Applicant's protestations to police that he was ignorant of what the silencer was.

11. The Applicant quite simply had not been frank with the court about why he found it necessary to arm himself in the way he did. Hong Kong's firearms sentencing policy has been designed for many years to act as a strong deterrent to those with no right to have such weapons. The Applicant clearly posed a danger to the public. There is no reason, in our view, to distinguish him from others who are in a category where it so happens that the precise criminal purpose for which they have possession of a firearm is known. If a genuinely held concern about self-defence is a reason which might be regarded in certain circumstances as making possession of a weapon of this kind marginally less culpable, albeit a far cry from innocent possession in itself, that mitigation had effectively been rejected by the judge as providing little assistance to the Applicant.

12. Mr. McNamara's principal submission was that the facts disclosed by this case represent a simple case of possession of a firearm and ammunition which was deserving of a lower starting point than eleven years which the judge adopted. We have found ourselves unable to accept this submission. It is easy to see that there are cases where a judge may take a lower starting point than twelve years for offences brought under this section of the Firearms and Ammunition Ordinance. The cases which come before the courts vary enormously on their facts. At the lower end of the scale, for example, a person may find himself charged with precisely the same offence as this Applicant where he has collected an item which is incapable of discharging any ammunition and is in possession merely as a collector of such items. There is no purpose to be served in providing other examples of offences which can be brought under section 13 of the Ordinance because of the infinite variety of cases which come before the courts. This is because section 13 is very widely drawn. Its terms are:

"(1)	No person shall have in his possession any arms or ammunition unless-
	(a)	he holds a licence for possession of such arms or ammunition or a dealer's licence therefor; or
	(b)	he is an agent or a servant of a person referred to in paragraph (a), other than a security guard employed by him, and is carrying out the bona fide and lawful instructions of such person.
(2)	A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $100,000 and to imprisonment for 14 years."

13. There are, of course, other provisions under this Ordinance for more serious offences which are committed in relation to firearms and which, in some cases, carry a life sentence.

14. In the definition of section 2, arms are defined as meaning:

"(a)	any firearm;
(b)	an air rifle, air gun or air pistol from which any shot, bullet or missile can be discharged with a muzzle energy greater than 2 joules;
(c)	any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person;
(d)	any gun, pistol or other propelling or releasing instrument from or by which a projectile containing any gas or chemical could be discharged;
(e)	any weapon for the discharge of any noxious liquid, gas, powder or other similar thing (including an aerosol containing any noxious liquid, gas, powder or other similar thing which is not in general trade or domestic use in aerosol form);
(f)	any harpoon or spear gun, however powered;
(g)	any other thing declared by the Chief Executive in Council in regulations made under section 52 to be within the definition of 'arms' for the purpose of this Ordinance;
(h)	a component part used or intended to be used for the discharge of a missile from any of the arms coming within the foregoing paragraphs, and any accessory to such arms designed or adapted to diminish the noise or flash caused by firing the same ...."

15. Ammunition is also defined and it is unnecessary to set out the many kinds of ammunition which are covered by this section.

16. Of course, in reality Mr. McNamara focuses his application before us today on those who have in their possession firearms of the kind with which we are presently concerned, which are capable of firing ammunition.

17. We can say immediately that we reject Mr. McNamara's submission that the courts have adopted a starting point for offences of this kind which is too high. Depending on the circumstances, the sentencing judge has a considerable discretion to reduce the period of imprisonment to be served, even where a 12 year starting point after trial is taken. An illustration of this is to be seen in R v Milhench, (1996) 1 HKC 86, where, as it so happens, Mr. McNamara appeared with leading counsel for the defence and I was the sentencing judge. In that case, the Court of Appeal did not disagree with a starting point of 12 years being taken for the simple possession of a firearm and ammunition. The mitigation in that case was very unusual, and the Court of Appeal described the 4 1/2-year sentence that I imposed as having provided a "more than generous discount". The point which clearly and obviously emerges is that, although a starting point of 12 years can be regarded as the proper starting point for the possession of a firearm and ammunition, there were special features in Milhench which enabled the sentence to be reduced well below the normal tariff.

18. We can see in the present case no basis for interfering with the sentence that was imposed. This was exactly the kind of case which merited a high starting point, and we would not have criticised the judge if he had adopted 12 years as the appropriate starting point. Such a starting point will normally be appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available for use.

19. In those circumstances, therefore, we dismiss this application.

Representation:

Mr. Gavin Shiu, S.G.C. of the Department of Justice for the Respondent.

Mr. John McNamara instructed by the Legal Aid Department for the Applicant.

Remarks:
Appeal by Applicant to Court of Final Appeal. Appeal dismissed. Please refer to Appeal Judgment of FAMC000019/2002.