HKSAR v. Fan Kwok Wai

CACC 264/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2005

(ON APPEAL FROM DCCC NO. 468 OF 2005)

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BETWEEN

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Before : Hon Woo VP in Court

Date of Hearing : 30 August 2005

Date of Judgment : 30 August 2005

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J U D G M E N T

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1.The applicant was convicted on his own plea of six charges before Judge Chua in the District Court.  She sentenced him to an overall sentence of 4 years’ imprisonment.

2.The applicant now seeks leave to appeal against sentence, but in his notice of application, he only complains that the sentence of 32 months’ imprisonment on Charge 5 was too severe.

3.The six charges all originated from the police’s search of the applicant’s home in Mongkok on 24 February 2005, where a quantity of dangerous drugs, mainly ketamine and ecstasy, and Part I Poisons were found, which formed the bases of Charge 1 (trafficking) and Charges 2, 3 and 4 (all for possession of drugs or poisons and an inhaling instrument).  Also found in a code-locked safe inside the applicant’s bedroom were three stun guns, with one charger and one wire for one of the guns on top of the safe.  This was Charge 5.  Charge 6 related to two steel gravity-operated extendable batons seized from the sitting room.

4.The judge imposed a sentence of 20 months on Charge 1, with 14 months of which to run consecutively to the sentences on Charges 5 and 6.  She imposed a sentence of 2 months on each of Charges 2, 3 and 4 and ordered those sentences to run concurrently with that on Charge 1.  For Charge 5, the judge adopted a starting point of 4 years’ imprisonment and reduced it by one-third for the guilty plea to reach 32 months.  She adopted 6 months for Charge 6, and ordered 2 months of that sentence to be served consecutively to the sentence on Charge 5.  The overall sentence came to 48 months or 4 years.

5.When passing sentence on Charge 5, the judge correctly stated that there was no tariff for possession of stun guns.  She referred to three cases of this court, R v Lai Chi Fai [1996] HKLR 570, R v Chan Yiu Cheung [1995] HKLR 407 and R v Wong Chuen Pong, CACC 579 of 1996. 

6.In her Reasons for Sentence, the judge said:

“	13.	Miss Tai [counsel for the applicant at trial] has painted a picture of a man who comes from a decent family, had taken over the father’s massage business. It is a respectable one. I can deal with him as if he has a clear record because his previous conviction in 1993 was for evasion of liability by deception. The defendant has told the police that he had bought the stun guns and the extendable batons for self-protection. Miss Tai has said that there were some burglaries of the massage establishment, and on occasions his wife and child from China come to Hong Kong to live with him.
	14.	It is right and proper that we have stringent laws in Hong Kong because these are weapons which are dangerous, and if they fall into the wrong hands, you can imagine the damage and the havoc it can cause. I have already outlined the principles in the previous cases that self-protection, ignorance of the law – none of this can mitigate sentence. I must also wonder why you would need, for self-protection, five of these items.
	15.	The fact of the matter is, you are addicted to ketamine and you are a member of the Sun Yee On Triad Society. So the risk of these items falling into the wrong hands is a real one.”

7.Ms Chan submits that the judge was correct in taking the circumstances of this case as mentioned in the passages cited, namely, that self-protection cannot mitigate sentence, that the judge expressed scepticism why the applicant needed three stun guns and two extendable batons for self-protection, and that there was a real risk of these weapons falling into wrong hands as the applicant was a member of a triad society and was addicted to drugs.  All these I accept, but apparently, the judge did not have the benefit of the case of HKSAR v Li Hung Kwan [2003] 1 HKLRD 204, where this court reviewed a number of similar cases on sentencing.  It was only in one the seven cases mentioned there that a starting point of 4 years’ imprisonment was upheld.  That case was R v Lai Chi Fai referred to by the judge in the present case.  The reason appeared to be that the appellant in that case was found to possess a stun gun when he was arrested with another person who was in possession of an imitation firearm, and the appellant was at the time on bail in relation to another offence.  The court also referred to R v Wong Chuen Pong, also cited by the judge here, and explained that the sentence of 2 years’ imprisonment for the stun gun possessed by the appellant in that case was justified on the basis that the stun gun was intended to be used for some illegal purpose.

8.While the judge had expressed doubts or scepticism as to why the applicant needed five weapons for self-protection, the judge had not expressly rejected that stated purpose of the applicant, and there was no evidence that he had used those weapons for any illegal purpose, or had any intention to do so.  On the other hand, the applicant being a member of a triad society and was addicted to ketamine supported the judge’s view that there was a real risk of the stun guns and batons falling into wrong hands.  It may, however, be argued that this might not fully justify the starting point of 4 years’ imprisonment, especially when the two batons attracted a further consecutive 2 months’ imprisonment.

9.The offences all took place on the same occasion.  The applicant was given a one-third discount for his guilty plea, without which the overall sentence would have been 6 years.  It may also be open to argument that the overall sentence was too high, having regard to the totality principle. 

10.In the circumstances, I accede to the application and grant leave, so that the matter can be considered fully by this court.

Ms Evena Chan, SADPP of the Department of Justice, for the Respondent

The Applicant, in person