The Queen v. Ng Wai Ming and Others

CACC000373/1989

IN THE SUPREME COURT OF HONG KONG

COURT  OF APPEAL

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BETWEEN

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Coram: Hon. Silke, V.-P., Hon. Jones and Hon. Sears, JJ

Date of hearing: 17 January 1990

Date of judgment: 17 January 1990

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J U D G M E N T

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Jones, J.

1. The four applicants seek leave to appeal against their sentences of imprisonment passed by Hooper, J. in the High Court on the 19th June 1989.

2. The applicants were jointly charged with two counts, the first Possession of arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance the particulars of offence being that on the 6th December 1988 in San Fung Avenue, Sheung Shui, New Territories, had in their possession arms and ammunition, namely two "Seagull" converted double-barrelled starting pistols, one "Butterfly" converted double-barrelled starting pistol, forty-nine steel ball bearings and one hundred and fifty-five percussion caps, without a licence.  The second count was for, Possession of an explosive substance contrary to section 55(1) of the Crimes Ordinance the particulars of offence being that on the same date and place they knowingly had in their possession an explosive substance, namely amatol, four detonators and 27.5 centimetres of safety fuse.

3. At the beginning of the trial, the 3rd applicant, CHAN Sai-kei, who was the 3rd defendant and the 4th applicant, AU Tai-cheuk who was the 1st defendant, pleaded guilty to both counts. The 1st and 2nd applicants originally entered pleas of not guilty to both counts, but later changed their plea on the first count to one of guilty whilst the Crown offered no evidence against them on the second count.

4. All the applicants were sentenced to 8 years' imprisonment on the first count and the 3rd and 4th applicants were sentenced to 8 years' imprisonment on the second count to commence one year after the commencement of the first count, making a total of 9 years' imprisonment on both counts.

5. The admitted facts reveal that on the evening of the 6th December 1988 at Sheung Shui, the four applicants were seen by a party of police officers who suspected that they were illegal immigrants. Upon a search being carried out, the 4th applicant was found to be in possession of one of the "Seagull" double-barrelled starting pistols and a quantity of explosives, whilst the 2nd applicant also had in his possession the same type of starting pistol togehter with some of the explosives charged. The third pistol was found in the possession of the 3rd applicant. Two of the pistols found were loaded. The percussion caps were found in the possession of the 1st applicant. The applicants contended that they had brought the arms and ammunition into Hong Kong as couriers. This contention was not challenged by the Crown.

6. The applicants are all young men, the first being aged 23, the second 26, the third 23, and the fourth 21. The maximum sentence for each offence is 14 years' imprisonment.

7. Authorities were referred to Hooper, J. and were cited to us today by Mr Marray on behalf of all the applicants which reveal that the normal sentence for a simple case of posession of a gun without a licence on a plea of guilty is 6 years' imprisonment. The cases cited to us were the Attorney General v. Lai Shu-piu and another A.R. 12/85; Attorney General v. Jim Chong-shing [1990]1 HKLR 131; Attorney General v. Tam Kwok-chuen [1989]2 HKLR 185; and Attorney General v. Chan Chi Mei-wah [1990]1 HKLR 190.

8. However, having regard to the facts of this case Hooper, J. commenced with a starting point of 10 years' imprisonment taking into account that we are here concerned with a group of men and with three guns. Only, the 3rd applicant, had a previous record which was a minor offence that the judge disregarded. In sentencing the applicants the judge therefore gave a discount of two years for the pleas of guilty on the first count.

9. In the grounds of appeal lodged on behalf of the applicants, it was contended that sentences were excessive for the judge did not give adequate consideration or sufficient weight to the pleas of guilty or to their contention that they were acting as couriers and had no intention to use the arms ammunition and explosives themselves. The other ground that was advanced on their behalf was that the judge failed to give adequate consideration to the guidelines in the cases to which I have just referred on a plea of guilty.

10. We are unable to agree with any of these submissions although we are of the opinion that perhaps the sentences were slightly on the high side. However, we do not consider that the sentences imposed were wrong in principle or manifestly excessive so as to justify any interference for these were serious offences. Treating the applications as the appeals, we grant leave to appeal and dismiss the appeals.

Representation:

Mr J. Marray (D.L.A.) for Applicants

Mr G.J. Lugar-Mawson for the Crown