The Queen v. Devendra Singh Bagga and Aonther

CACC000373/1986

BETWEEN

Coram: Hon. Huggins, V.-P., Kempster, J.A. and Macdougall, J.

Date of hearing: 15th August, 1986

Date of delivery of judgment: 15th August, 1986

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JUDGMENT

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Macdougall, J.:

1. The two applicants are Sikhs. The first applicant is an Indian national and the second is a naturalized citizen of the United States of America. They pleaded guilty in Kowloon District Court to two charges of possession of firearms without a licence and to two charges of possession of ammunition without a licence.

2. Both men had arrived at Kai Tak Airport on the 27th May 1986 on board a Japan Airlines Flight from Los Angeles via Tokyo and held tickets for onward travel to Bombay with Air France on the following day. As it was necessary to remain in Hong Kong overnight prior to the departure to Bombay, both applicants left the airport after completing Immigration Arrival Cards indicating that they intended to stay at a hotel in Kowloon. They made no attempt to claim their baggage consisting of two suitcases and a box. Instead, the airline authorities followed the normal procedure relating to baggage labelled for onward journey and stored it at the airport in the Interline Baggage Bond Office which is under the control of the Customs and Excise Department.

3. As events turned out the applicants failed to board their flight to Bombay on the following day. We are told that they took a taxi to the airport but arrived late for their flight. They made an enquiry at Japan Airlines as to the disposal of their baggage and were informed that it had been loaded on board the plane to Bombay. In fact this was not so. After a week had passed, officers at the Baggage Bond Office, in accordance with routine procedure, opened the applicants' baggage and examined the contents.

4. They found a .25 calibre pistol in one suitcase and a .32 calibre revolver together with a holster and cleaning rods, 50 rounds of .25 calibre ammunition and 50 rounds of .32 calibre ammunition in the second.

5. The police were notified and, after a search, found the applicants on the following day at a guest house in Tsim Sha Tsui. They recovered their baggage identification tags which matched the counterparts attached to the baggage in which the hand guns and ammunition had been found. Both weapons were brand new and in good working order.

6. In sentencing each applicant to 12 months imprisonment on each of the two firearm charges and to 6 months imprisonment on each of the ammunition charges, with an order that the sentences be served concurrently, the Deputy District Judge observed that the offences of possession of firearms and possession of ammunition without a licence are regarded in a very serious light in Hong Kong and that a sentence of five years' imprisonment would not be unusual. He expressed the view that after a plea of guilty a sentence of four years would be appropriate.

7. He accepted, however, that this was an exceptional case in that there had been no danger to anyone in Hong Kong, that the applicants had had no access to the arms and ammunition when stored in the hold of the aircraft on route to Hong Kong, nor had they, made any attempt to get them through customs. Moreover, he accepted that the applicants were persons of unblemished character, had purchased the weapons in accordance with United States law and that their intention had been to take them to friend who is a registered gun dealer in India. There was no suggestion that what they had proposed to do was in violation of Indian law.

8. Both applicants now apply for leave to appeal against the sentences on the ground that they are manifestly excessive and wrong in principle. Mr. Polson who represented both men in court below and appears before us on their behalf today accepts, as he must, the guidelines laid down by this court in the Attorney General and LAI Shu-piu and CHIU Fung-man Application for Review No. 12 of 1985. He contends, however, that in stating those guidelines the court did not envisage circumstances such as those in the present case. What the court said is summarised in the following passage:

"We think that the proper sentence on a plea of guilty for simple possession of a gun would be six years'. It follows that where there is an intent to use the gun for an unlawful purpose something in excess of six years' is appropriate."

9. We accept Mr. Polson's submission. This is a wholly exceptional case. There was no intention on the part of either applicant to bring the weapons or ammunition through customs into urban Hong Kong nor did they intend to use Hong Kong as a conduit to violate the law of India. Whilst we emphasise that the possession of arms or ammunition without a licence is an offence of a very grave nature, and we reiterate what was said in Lai Shu-piu, we agree that the court did not intend that those sentencing guidelines should apply to circumstances such as those in the present case.

10. We take into account that, although they are now free on bail, both of the applicants have already been in custody for a period of one month. We feel that they have suffered sufficiently. We therefore grant leave to appeal against sentence, and treating the hearing of the applications as the hearing of the appeals, we set aside the sentences and order that each applicant be given an absolute discharge.

Representation:

Mr. K. B. Egan, Crown Counsel for Croon Prosecutor.

Mr. Ian Polson, instructed by Messrs. Tang & Knight, for both appellants.