The Queen v. Wong Wai-yip

CACC000156/1986

IN THE COURT OF APPEAL

BETWEEN

Coram: Hon. Huggins, Ag. C.J., Kempster, J.A. & Macdougall, J.

Date of Hearing: 7th August 1986

Date of Judgment: 7th August 1986

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JUDGMENT

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Kempster, J.A.:

1. On 11th March of this year in Kowloon District Court Wong Wai-yip was convicted by Judge Leonard of the possession both of a firearm and of ammunition without licence. He was sentenced to a total of 5 years imprisonment. Initially he sought leave to appeal both against convictions and sentences but on 5th August he gave notice of abandonment of the application in relation to the convictions and we dismiss it accordingly. He maintains his application for leave to appeal against sentences.

2. The facts found by Judge Leonard were briefly that, as the applicant himself had admitted, he received from a friend on 22nd; September 1985 a plastic bag containing an object which, according to the evidence which he gave at trial, he never identified. He has told us today, however, that once he got the plastic bag home he felt it and-appreciated that it contained a pistol of one sort or another. In due course, as a result of a telephone call which was contrived by the police, he presented himself outside his home in the early hours of the morning and was arrested. Inside the hallway was found, wrapped in a sheet of newspaper, a .38 calibre Smith and Wesson revolver loaded with 6 rounds of ammunition.

3. We do not have to emphasise, because it must be widely known, that the possession of a firearm is an extremely grave offence. Indeed, in a recent application for review this court took into account the present maximum sentence for the offence, being 14 years imprisonment, and expressed the view that the proper sentence on a plea of guilty would be 6 years imprisonment. Before passing from that judgment we remark that it has been brought to our attention by Mr. McCoy, who appears today for the Crown, that relatively few judgments given after applications for review and which are of a singular importance to the profession and to the judiciary at large find their way into the Hong Kong Law Reports.

4. The substantial burden of the applicant's complaint to us is that the judge found that he had accepted custody and possession of the loaded weapon not in order to assist or possibly facilitate concealment for a friend but for reward. It was part of the applicant's evidence that at the same time as he received the bag containing the weapon he had been handed $10,000 by his friend. He also explained that this sum constituted the repayment of a loan. The judge, however, on the basis of general disbelief of the applicant's evidence, held that this was paid in consideration of his acting as bailee. We do not consider that the evidence properly allowed the judge so to conclude.

5. Be that as may it will be apparent that the sentences of 5 years imprisonment overall are substantially below the level which this court has indicated as appropriate following a plea of guilty. The applicant was convicted after trial. We also observe from the record that he was a man of bad character. In the circumstances it is open for us to consider whether or not the sentences should be increased but, balancing the factors which we have outlined, we propose only to dismiss the application for leave to appeal against sentence also.

Representation:

Appellant in person

Mr. McCoy for Respondent