The Queen v. Ho Chun

CACC000330/1991

Headnote: Possession of arms and ammunition: observations on level of sentence after plea

BETWEEN

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Coram: Silke, V-P, Power and Macdougall, JJA

Date of Hearing:15 November 1991

Date of Judgment: 15 November 1991

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JUDGMENT

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Silke, V-P:

1. This is the judgment of the Court.

2. Ho Chun was, after trial before Wong J and a jury, convicted on 10th June 1991 of the offence of possession of arms and ammunition without a licence. The particulars of charge were that on 20th April 1990 at the Kwong Hung Material Company at No 1 Wai Yan Street, Tai Po he had a 7.62mm x 25 calibre semi-automatic pistol, twelve live rounds of ammunition for that pistol, which was loaded, and two electronic stunning devices without a licence. He was sentenced to a period of ten years imprisonment.

3. He originally filed an application in respect of his conviction on 4th July 1991 but, despite his acknowledgment that it had been explained him that if he appealed against both sentence and conviction at the same time one would not have an adverse effect on the other, he made no application in respect of sentence.

4. On 22nd August 1991, well out of time, he filed an application for leave out of time to appeal against sentence.On 27th August 1991 he field a Notice of Abandonment in respect of his application for leave to appeal against conviction.

5. His explanation for his failure to make a timeous application for leave to appeal against sentence was that he originally formed the view that as the gun did not belong to him he should appeal against conviction rather than sentence. SuBsequently, however, after discussion with his family, he decided to abandon his application in respect of conviction and make the present application.  He told us that he has few relatives in Hong Kong but that his parents, his wife and two young children are in China. He himself first came to Hong Kong sometime in 1977,

6. The general facts were that on 20th April 1990 there was a police raid on a scrap-metal store in Tai Po. During the course of a search carried out by the police, these guns were found in cockloft. They were in a plastic bag in a plastic waist pouch. The applicant's fingerprints were found on the magaine of the pistol. It was the applicant's defence that these guns were not his but belonged to a man called. "Ah Shing" who was called in the course of the trial as a prosecution witness. The applicant was apparently holding them for safe keeping. There is a reference by Ah Shiny that the purpose of having the guns in Hong Kong was to rob. There was evidence that the gun had been fired. There was no evidence of where or when. The stun devices were, at the time they were found, not in working order. This could have been remedied.

7. This Court in R v Tsang Kwok Wing [1989] 1 HKLR 270, considered a sentence of ten years imprisonment imposed for the possession of two 0.38 calibre revolvers, one 9mm calibre pistol and 150 rounds of ammunition without a licence. There was in that case a further charge of being in possession of cannabis for unlawful trafficking: My Lord Macdougall JA said at p 275:

"The maximum penalty for the offence of being in possession of arms or ammunition without a licence is one of imprisonment for 14 years and a fine of $100,000. In view of the nature and quantity of the arms and ammunition involved and the fact that the circumstances of possession were that the applicant had smuggled these articles into Hong Kong, we do not think that the sentence of ten years for that offence was wrong."

8. Here there is the aggravating feature of the fact that the gun had been fired.

9. This Court has stated that, after a plea of guilty, a proper sentence would be at least six years imprisonment for this type of offence. In the light of the spate of robberies which are now taking place in Hong Kong and in which the use of guns is involved trial judges could well consider an upward revision of that "at least six years" guideline. We would indicate that this Court would be unlikely to interfere with sentences of at least eight years imprisonment. This of course relates to sentence after a plea.

10. These offences are of considerable gravity and it is necessary to make those who are minded to hold guns in safekeeping, or for any other purpose, aware that they will face a considerable period in prison. The sentence here is at the top end of the range as it now exists. It is not a sentence with which we would have interfered.

11. We have considered the general merits of the applicant's application lest we shut out a valid and arguable appeal. But, no good reason has been given as to why we should give the applicant the indulgence which he seeks. Leave out of time will be refused.

Representation:

Applicant in person

T.H. Casewell Esq for Crown/Respondent