Attorney General v. Lai Shu-piu and Another

CAAR000012/1985

BETWEEN

Coram: Sir Alan Huggins, V.-P., Cons & Silke, JJ.A.

Date of Hearing: 28th August 1985

Date of Judgment: 28th August 1985

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JUDGMENT

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Sir Alan Huggins, V.-P.:

1. This is an application by the Attorney General, made. by leave granted on 16th July 1985, for review of the sentences imposed on these two Respondents for an offence of possession of arms and ammunition without a licence. That offence was charged in the first count of an indictment which also contained a charge of conspiracy to rob. The charges were severed and both Respondents pleaded Guilty to the first count. The 1st Respondent was sentenced to three years' imprisonment and the 2nd Respondent to two years' imprisonment. The distinction was apparently made because the 1st Respondent admitted that he had purchased the gun in China and brought it to Hong Kong. Both Respondents had come to Hong Kong on 15th December 1984. On 24th December the police found a .38 Smith and Wesson revolver in a suitcase under a double bunk in a cubicle occupied by the Respondents. The gun was loaded with five rounds of special ammunition. Another five rounds were found in the suitcase. On their arrest both Respondents stated that it was their intention to obtain money by robbery.

2. In his Reasons for the sentences passed the judge said

"They had not in fact committed any criminal offence against the property of other persons"

and added

"In imposing a sentence I therefore must have regard only to the factors relevant to the charge under the Firearms and Ammunition Ordinance "

It was of course true that no specific offence of robbery had yet been planned by the Respondents but they had the intention to rob and that was clearly a factor which was relevant to the charge under the Firearms and Ammunition Ordinance.

3. Counsel for the Attorney General has drawn our attention to a case which is entitled Reg. v LAW Shin Application for Review 1984 No.5. In that case the court approved a passage in the judgment in Reg.  WONG Ping kwan Crim. App. 1983 No. 1028, where the court said that for a simple case of unlawful possession of arms, where the arms in question were a gun, a total of five to six years after trial would be in no way inappropriate and that four years would be correct after a plea of Guilty. It is implicit that in a case where it was intended that the arms should be used for an unlawful purpose then a higher sentence would be appropriate. Since that case the Legislature has thought proper to increase the maximum sentence for this offence from ten years' to fourteen years' imprisonment. It is clear therefore that the guideline which was laid down in the case of WONG Ping-kwan must be altered, and 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.

4. We have hesitated as to whether the judge was right in differentiating between the two Respondents but have decided that we should not interfere with the distinction which he has made. We think that proper sentences in the present case would have been seven years' and six years' imprisonment respectively but that, as this is a review, we should order that sentences of six years' and five years' imprisonment be substituted. The sentences passed were in our view manifestly inadequate.

28th August 1985

Representation:

G. Jackson for Crown.

Respondents in person.