The Queen v. Leung Shiu-lun
Read the full judgment text of CACC 609/1996 on BabelCite. This Court of Appeal judgment was delivered on 12 March 1997 before Nazareth VP, Bokhary JA, Liu JA.
Criminal law – Sentencing – Unlicensed possession of air rifles and air pistols contrary to s.13(1) Firearms and Ammunition Ordinance (Cap 238) – Definition of 'arms' in s.2(1) includes 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 – Muzzle energies of seized weapons ranged from 2.30 to 12.84 joules – Applicant convicted on his own plea of guilty and sentenced to 18 months imprisonment based on starting point of 2.5 years less one-third discount for guilty plea – Application for leave to appeal against sentence – Whether starting point was manifestly excessive or wrong in principle – Powerful mitigating circumstances including no criminal enterprise or motive, voluntary surrender to take responsibility in place of brother, full cooperation with police by leading them to shops, five cautioned statements, guilty plea, clear record, favourable probation report, age 29, conscientious and reliable employee of sober habits – Distinction between unlicensed possession of firearms (typically 6 to 8 years) and unlicensed possession of air rifles – Wide range of items included within s.2(1) definition of 'arms' calls for correspondingly varying sentences – Absence of evidence of prevalence, licensing regime, mischief aimed at and other relevant matters precluded court from laying down general starting point – Uncertainties resolved in favour of applicant – Court granted leave, allowed appeal, reduced starting point to 15 months and substituted sentence of 10 months after one-third discount for guilty plea.
Legal issues: Whether starting point of 2.5 years imprisonment for unlicensed possession of air rifles was manifestly excessive
Outcome: Leave to appeal granted; appeal allowed; sentence reduced from 18 months to 10 months imprisonment.
Cited by 6 cases
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CACC000609/1996
Headnote Criminal law - Sentencing - Unlicensed possession of air rifles and air pistols c/s 13(1) Firearms and Ammunition Ordinance (Cap 238) - Powerful mitigating circumstances - Sentence of 18 months reduced to 10 months - Court declined to give guidance on starting point in the absence of evidence of prevalence, licensing policy, mischief aimed at and other relevant matters.
----------------- Coram: Hon Nazareth V-P, Bokhary and Liu JJA in Court Date of Hearing: 4 March 1997 Date of Delivery of Judgment: 12 March 1997 ----------------- JUDGMENT ----------------- Nazareth V-P (giving the judgment of the Court): 1. On 13th September 1996 the applicant, Leung Shiu-lun, was convicted by Deputy Judge Richard Day in the District Court on his own plea of guilty for possession of firearms without a licence, contrary to s.13(1) of the Firearms and Ammunition Ordinance (Cap. 238). On 4th October 1996, after a probation report which contained much helpful information in his favour was obtained, he was sentenced to 18 months imprisonment. He now seeks leave to appeal against that sentence. 2. The facts are quite straightforward and can be taken from the agreed amended Summary of Facts. On 16th November 1995, armed with a search warrant, the police went to the applicant's brother's flat in Block C, Yuen Sun Garden, Yuen Long, New Territories to search for unlicensed firearms and ammunition. They found three are rifles, three air pistols, one bag of white plastic pellets and three boxes of metal pellets. These actually belonged to the applicant who formerly lived with his brother, but who had some months before moved out to live with his girlfriend, leaving those items behind. 3. The air rifles and pistols were examined by a police firearms expert who found the following:
4. The significance of the muzzle energy lies in the definition of "arms" in s.2(1) of the Firearms and Ammunition Ordinance which includes by para. (b):
5. Section 13 of the Ordinance provides that possession of any arms without a licence is an offence liable on conviction on indictment to a fine of $100,000 and imprisonment for 14 years. 6. Returning to the facts, the applicant's brother was charged with possession without a licence but about 10 days before his trial, his legal representatives informed the prosecution that the applicant was the real owner. Shortly thereafter, the applicant surrendered to the police and under caution frankly admitted the offence, stating that he had bought or otherwise acquired the air guns between October 1993 and March 1995, paying between $700 and $1,700 for each. 7. For the applicant, Mr Andrew Macrae, who did not appear at the trial, takes the single ground raised in the perfected grounds of appeal, that the starting point of 2 1/2 years imprisonment with the resulting sentence of 18 months after the plea of guilty was manifestly excessive and/or wrong in principle for the following reasons:
8. All those five reasons are factually correct, are not disputed and were before the Deputy Judge. Indeed, one might add in amplification of the last, that the applicant is about 29 years of age, a conscientious, reliable and hardworking employee, of sober habits and no vices; and to use Mr Macrae's own words a decent sort of person, with an unblemished record, who would not trouble the courts again. 9. The difficulty the Deputy Judge faced was in identifying a starting point. Neither the Deputy Judge nor counsel before him (or before us for that matter) have been able to find any tariff guidelines or even a decided case of assistance. The Deputy Judge dealt with the matter in the following passages of his reasons for sentence:
10. The Deputy Judge was plainly right in drawing a distinction between sentences of 6 to 8 years imprisonment for possession of unlicensed firearms as opposed to air rifles which he placed much lower down in the range of sentences he considered applicable. Not only have such sentences to cater for a whole range of circumstances, but arms themselves as included in the definition in s.2(1) embrace not only firearms and ammunition in the ordinary sense of those terms, but a whole range of other items included within the definition, ranging from firearms to stun guns, instruments discharging gas or chemicals, weapons for the discharge of noxious liquids, gas, etc (including an aerosol containing noxious liquid etc not in general trade or domestic use), harpoons and so forth. It seems to us implicit in this wide range of items with their varying harmful effects that consonant similarly varying sentences are called for. Clearly, therefore, the Deputy Judge was right in rejecting the usual level of sentences for unlicensed possession of firearms. 11. The circumstances of the District Court cases (741/94 and 561/95) were not brought to our attention, but they illustrate the range of sentences that might be appropriate to particular circumstances. 12. We have found considerable difficulty in addressing the starting point given the absence of any evidence of the prevalence of offences of unlicensed possession of air guns, the licensing regime (in particular whether licences are readily issued, whether licensees are screened and e.g. conditions of safe storage imposed, whether dealers in air guns are licensed), the evil aimed at (whether danger to life and limb particularly of children playing with such items, the use thereof as imitation firearms, or whatever), and so forth. 13. It should be mentioned here that Mr Macrae stated that air guns were freely available in toy shops where they could be seen on display. Mr Albert Wong for the Crown did not accept that, stating that he knew of a case where an importer or dealer had been prosecuted. And that was where this aspect of the matter was unhelpfully left. 14. The inclusion of air guns by reference to muzzle energy in excess of 2 joules, tends to suggest that the mischief aimed at is the danger to life and limb. However, with reference to that, the Deputy Judge seems to have taken into consideration the risk of the air guns in question falling into the hands of criminals and being used for robberies, as the passages quoted from his reasons show. 15. In the foregoing unclear and somewhat confused situation, what is uncertain must be resolved in favour of the applicant; particularly as it all seems to have been well within the ability of the prosecution to ascertain. In these circumstances, and particularly given the many and powerful mitigating factors, without seeking to establish any general starting point for such offences (which will have to await an occasion when the court is afforded all the relevant information), we think that the starting point adopted by the Deputy Judge was too high. We think a starting point of 15 months would have been more appropriate. We accordingly grant leave to appeal and treating the application as the appeal, we allow it, set aside the sentence of 18 months and allowing a discount of a third for the plea of guilty, substitute a sentence of 10 months.
Representation: Mr Andrew Macrae (M/s Tsang, Chan & Woo) for the Applicant Mr Albert Wong (Crown Prosecutor) for Crown/Respondent |
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