The Queen v. Ng Kwok Ying

CACC000109/1986

IN THE COURT OF APPEAL OF HONG KONG

CRIMINAL APPEAL NO. 109 OF 1986

____________

BETWEEN

_________

Coram: Hon. Li, V.-P., Hon. Yang, J. A. & Hon. Penlington, J.

Date of hearing: 15th May 1986

Date of delivery of judgment: 15th May 1986

___________

JUDGMENT

___________

Penlington, J.

Background

1. The applicant was convicted in the Kowloon District Court on charges of possession of a firearm and of ammunition without a licence. She was jointly charged with her husband ("D1") but he was acquitted of both charges. The trial judge sentenced the applicant to 3½ years imprisonment on each charge, to be served concurrently.

Findings

2. The trial judge found that the applicant hired a safe deposit box with the Hang Seng Bank in 1976. Two keys were issued to her, either one of which could open the box. D1 was authorised to use the box but there was no clear evidence as to whether he ever had one of the keys.

3. The bank's record card was produced showing the dates when the box was opened. On each occasion a form was also signed by the box holder but only the last three of the forms were also produced. On one of these, the applicant and D1 had signed indicating both went to the box. That is on the 11th October 1984. The applicant alone signed form for the 7th August 1985 and the 5th September 1985, which was the day the arms were discovered. On that day officers of the Narcotics Bureau met the appellant in the bank after she had applied to enter the secure area. They detained her and after a warrant was obtained the box was opened in her presence. In it was a .22 calibre revolver of the "Deringer" type and 303 rounds of ammunition, 101 being blank. The gun was in a spectacle case and the ammunition in a cardboard box. When asked about them before they were opened, the applicant said, "I don't know but if you open it and look inside you will know"

4. Both D1 and the applicant made statements to the Police which were not challenged. D1 said the gun and ammunition were his alone and the appellant knew nothing about them. The applicant said she saw the spectacle case and box on 7th August, but did not open them. She did not know the contents. D1 and the applicant also gave evidence. D1 denied any knowledge of the pistol or ammunition. He first of all said he did have a key to the box, then he denied it. He said his wife had the 2 keys. He admitted he had received threatening phone calls and had been attacked. Strangely his statement was never put to him or even mentioned in the course of his evidence.

5. The applicant also changed her story and said that on the 7th August she had put the spectacle case and the box of ammunition in the safe on behalf of a friend called "Ah Long" who had now gone overseas. He had asked her to look after a valuable watch on a previous occasion. She did not know what was in the case or the box but thought they were valuables and was not suspicious about them although they were very heavy.

6. It was the case for the appellant that D1 could have put the items into the deposit box in October 1984 when he went with the applicant or on any previous occasion. He had made a statement which was not challenged, admitting the arms were his and on that evidence he should not have been acquitted. If he had been convicted there must have been a doubt about the knowledge of the appellant, not-withstanding the presumption of knowledge in the Firearms Ordinance.

7. The judge's reasons for his verdict were also challenged on the grounds that he has not made specific findings of fact in relation to important matters such as whether D1 had access to the box on other occasions than the one when he signed the form and why D1's confession was rejected other than the judge was satisfied it was made only to protect his wife.

8. Mr. Duckett, for the Crown says that the acquittal of D1 was of no relevance to the guilt of the applicant. Clearly she had physical control of the gun and ammunition. The only question was did she know they were in the deposit box. There was ample evidence including such matters as the weight of the box of ammunition in particular which, taking into account the statutory presumption, justified the finding that she did know.

Conviction

9. It was uncontested that the applicant had at least one key to the deposit box and she was required to rebut the statutory presumption of possession of the contents. The applicant complains that the judge below was blinded by that presumption but we are satisfied that was not so. He found that on all the evidence the presumption had not been rebutted and we do not think that finding can be challenged. It may well be that D1 was very fortunate to be acquitted but that is not a fact which makes the finding against the appellant unsafe. The application for leave to appeal against conviction is refused.

Sentence

10. There is also an application for leave to appeal against sentence. Mr. Duckett has referred us to several cases where this Court has clearly indicated that possession of unlicensed arms and ammunition will normally result in a substantial term of imprisonment. However the majority of cases are those where the arms were clearly intended to be used in robberies, and here we are quite satisfied that the applicant had no intention whatever to use the arms herself. It seems probable they were for her husband who had been threatened by Triad gangsters. In R. v. Law Shin⁽¹⁾ where the respondent was carrying a gun in the street intending to return it to a friend who had given it to him and it discharged by accident, this Court said a sentence of four years would have been appropriate. There, however, the gun was a U. S. Army 9 m. m. pistol and it was carried in the street. Here, the gun is a very small, essentially defensive weapon and it was kept in a bank safe deposit box so there was no danger of it being stolen. The applicant has a young family and there is the strong suspicion that while legally in possession she had no real control over the arms.

11. Taking those factors into account we consider this is a wholly exceptional case. We treat this application as the hearing, grant leave to appeal against sentence and reduce the sentence on each charge to one of 18 months imprisonment. Sentences to be concurrent.

(1) A. R. NO. 5/84

Representation:

Mr. Charles Ching, Q. C. & Mr. M. K. Wong (Hastings & Co.) for applicant.

Mr. A. P. Duckett, Q. C. & Mr. A. Chan, Counsel for Respondent/Crown Prosecutor