Read the full judgment text of CAAR 000008/1989 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.