Attorney General v. Chan Chi Mei-wah
Read the full judgment text of CAAR 8/1989 on BabelCite. This Court of Appeal judgment was delivered on 22 September 1989 before Cons, V.P., Silke, V.P. & Kempster, J.A..
Criminal law – firearms – possession of firearm without a licence – Firearms and Ammunition Ordinance (Cap. 238) s.13(1) – loaded automatic pistol kept for absent brother – sentencing guidelines – Attorney General's application for review of sentence – whether sentence manifestly inadequate – Criminal law – sentencing – whether sentencing guidelines are strait-jackets – prerogative of mercy to depart below guideline – need for caution where offence involves public danger – whether family circumstances (young child, pregnant offender, sole breadwinner husband) can mitigate sentence for unlawful possession of a loaded firearm – whether deterrent interest outweighs personal mitigation. Held: the established guideline for simple possession of a gun on a guilty plea is six years (AG v. LAI Shu-piu, Application for Review No. 12 of 1985, following legislation enacted in 1984, applied in R. v. LI Lit-wai (1988) 2 H.K.L.R. 286). Sentencing tariffs are guidelines, not strait-jackets, and a judge retains a prerogative of mercy to impose a sentence well below the normal range, provided he recognises the correct scale and states his reasons (R. v. YAU Koon-yau, Application for Review No. 12 of 1984). That prerogative, however, must be exercised with caution, particularly for offences involving public danger such as trafficking in dangerous drugs (LAM Hak-hung v. The Queen, Criminal Appeal No. 724 of 1972; R. v. Aranah 1982 76 CAR 190; R. v. Hanouda 1982 4 CAR(S) 137). Family circumstances, including that the offender is the mother of young children or is pregnant, may carry some weight in less serious offences (Mr. Thomas, Principles of Sentencing, 2nd ed., p. 212; R. v. Parkinson 1976, Current Sentencing Practice C4.2(d)) but cannot normally reduce a sentence for a grave offence, and mere birth in custody attracts no special sympathy (R. v. Ouless and Ouless 1986 Crim. L.R. 8702; Prison Rules r.21). In the present case the Respondent, a 34-year-old married woman with a young son, pregnant and with a low-earning husband, had merely stored a loaded pistol for her brother who had gone to China. Allowing family circumstances to mitigate would encourage unlawful gun-holders to entrust weapons to sympathetic persons, undermining deterrence. The minimum term the public interest could permit was five years; the two-year term imposed below was manifestly inadequate. Application granted; sentence set aside and, allowing the usual one-third discount on an Attorney General's review, replaced with four years' imprisonment.
Legal issues: Whether sentence of two years for possession of a loaded firearm without a licence was manifestly inadequate
Outcome: Application for review granted; original sentence set aside and replaced with four years' imprisonment.
Cited by 10 cases
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CAAR000008/1989
-------- Coram: Cons, V.P., Silke, V.P. & Kempster, J.A. Date of hearing: 5 September 1989 Date of delivery of judgment: 22 September 1989 ----------------------- J U D G M E N T ----------------------- Cons, V.P., delivered the judgment of the Court: 1. CHAN CHI Mei-wah (the "Defendant") pleaded guilty before Judge Daniell in the District Court to possessing a firearm without a licence, contrary to Section 13(1) of the Firearms and Ammunition Ordinance, Cap. 238, and was sentenced to two years' imprisonment. The judge observed that "but for her plea" he would have imposed a sentence of three years. 2. The firearm, an automatic pistol, was found hidden behind a shrine in one room of a flat opposite to that in which the Defendant lived in Boundary Street. It was loaded with seven rounds of live ammunition, in respect of which the Defendant pleaded guilty to a second charge under the same section. But as the sentence of one year's imprisonment which the judge imposed for that offence was ordered to run concurrently, the Attorney General has limited his application for review, which he brings with the leave of this Court, to the longer sentence alone. 3. The judge accepted that the Defendant had no intention to use the pistol herself, doing no more than keep it for her younger brother while he made a trip to China. In her cautioned statement, which was not before the judge but which we have had the advantage of seeing, she said she thought she would only need to keep it for a few days and had hidden the pistol in her own home; but when the younger brother did not return from China and could not be contacted there, her husband thought it prudent to hide the pistol somewhere outside. The couple had access to the room opposite for a short while in connection with a possible tenancy. 4. In 1985, in AG v. LAI Shu-piu, Application for Review No. 12 of 1985, unreported, dated 28th October'; 1965 this Court, having regard to legislation enacted the previous year, revised the sentencing guideline for offences of this nature, and indicated that:
5. That decision has not itself been reported, but it has been relied upon in R. v. LI Lit-wai (1988), 2 H.K.L.R., 286, and in other unreported decisions. 6. Miss Chainrai, who appears before us for the Defendant, does not contest that six years would have been a proper sentence in normal circumstances, but contends that in the particularly extenuating circumstances of the present instance the judge was justified in imposing only two. She refers to the facts that the Defendant is a married woman of 34 years of age, with a son aged 6 to 7; her husband is a welding worker, with a salary of only $7,000 per month; the couple have no relatives at all in Hong Kong, other than the Defendant's younger brother already referred to, and since the Defendant has been in prison her husband has been forced to take care as best as he can of the son alone; this means his taking the son to a nursery school every morning and collecting him later when returning from work; furthermore the Defendant is again pregnant, expecting her second child this coming month. 7. Mr. Thomas, in his Principles of Sentencing, Second Edition, p. 212, suggests that:
8. He refers in a subsequent footnote to R. v. Parkinson 1976 (Current Sentencing Practice C4.2(d)) where a married woman of 24, with two small children aged 3 and 4, was sentenced to nine months' imprisonment for uttering a forged banknote which she had made by sellotaping together small strips taken from other notes in a process by which she created seven E5 notes from an original six. it was said that her absence was having an adverse effect, both mentally and physically, upon the children and that her husband had lost almost a stone looking after them, albeit with some help from the mother's sister. The court decided "in mercy" to reduce the sentence to one that would enable her almost immediate release "having regard the family difficulties which have arisen". 9. On the other hand the mere giving of birth in custody has not attracted like sympathy from the court. In R. v. Ouless and Ouless, 1986, Crim. L.R., 8702, a wife had pleaded guilty to five counts of robbery or attempted robbery. At the time of the trial she was pregnant and gave birth sometime after being sentenced to five years' youth custody: The court refused to reduce the sentence. The brief report indicates that although the fact that the Defendant had a young child could not be ignored, the treatment of the child was a matter for the Home Office. In the present instance the Defendant may keep her child with her until it reaches nine months, and thereafter, if necessary, may apply for it to remain until the age of 3: see Rule 21 of the Prison Rules. 10. Even though this court may have laid down general guidelines regarding particular offences, there is always room for the exercise of mercy. This was made clear in R. v. YAU Koon-yau, Application for Review No. 12 of 1984, unreported, 4th September, 1984:
11. However it is a prerogative that must be exercised'' with caution. In LAM Hak-hung v. The Queen, Criminal Appeal No. 724 of 1972, unreported, 20th March, 1973, we find:
12. Similar views have been expressed with regard to couriers in the English cases of R. v. Aranah, 1982, 76, Criminal Appeal Reports, 190 and R. v. Hanouda, 1982, Criminal Appeal Reports (Sentencing), Vol. 4, p. 137. 13. We appreciate that there is in Hong Kong no trade in guns comparable to that in dangerous drugs. But nevertheless a similar danger must exist. If it is ignored the unlawful holder of a gun who wishes to lessen the risk to himself or needs for some other reason to have it housed elsewhere will inevitably look to someone who is likely to arouse sympathy if apprehended. Therefore in the balance which the court has to make between the mitigating factors and the need to deter persons from acepting possession of unlawful guns, particularly when loaded, the mitigating fators can carry little weight. In our judgment, even exercising the greatest degree of clemencry that the public interest would permit, the least term of imprisonment appropriate to the present circumstances is five years. Two years in manifestly inadequate. 14. We therefore grant the application, and allowing a discount as usual, set aside the sentence imposed below and replace it with a sentence of four years.
Representation: I.G. Cross & G.E. Forlin Crown Prosecutor for Applicant Miss Bina Chainrai (M/s Hermes W.K. Lui & Co.) for Respondent |