R. v. Lai Chi Fai

CACC000480/1995

IN THE COURT OF APPEAL

1995, No. 480

(Criminal)

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Coram: Hon. Bokhary, Ching JJA & Bewley, J.

Date of hearing: 22 December, 1995

Date of judgment: 22 December, 1995

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J U D G M E N T

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Ching JA (giving the judgment of the Court):

1. The applicant was convicted of a single charge of possession of a firearm without a licence. He was sentenced to a term of imprisonment of 3½ years and now seeks leave to appeal against that sentence.

2. The applicant and a friend were apprehended in the street at about 9.30 p.m. on the night of 10th August, 1994. His friend was found carrying an imitation firearm. He himself was found to be carrying a stun gun capable of discharging 4,800 volts in what is described as the open air at normal temperature and pressure. He said that it had been handed to him 4 hours previously by his friend "for pocketing". No other explanation was given. The Judge below used a starting point of 4½ years. He reduced this to 3½ years for the plea of guilty, commenting that the applicant had been caught red-handed. The friend eventually pleaded guilty to the same charge and was given a sentence of 1 year's imprisonment by another Judge.

3. The sentence was imposed on 30th May, 1995 but the application for leave to appeal against it was not submitted until 7th July, 1995 so that the application is out of time although not by an exorbitant period. The sole reason given for the delay is that the applicant wanted to wait until after his friend had been convicted. That is no reason at all although it may be that his affidavit is simply badly worded. Upon the facts so far the applicant shows no reason why an indulgence should be granted to him but we go on to consider the merits of his appeal.

4. As to the merits, it was urged upon us that in R. v. Cheng Yu Cheung (Unreported, 1990 No. 57) the applicant had received a sentence of 2 years after a starting point of 2½ years upon a plea of guilty. That was reduced to 12 months on appeal when the starting point was described as being not unduly high in the circumstances. Those circumstances were very different from those in this case. In that case a genuine reason for possession had been given namely self-defence and the applicant had not been in physical possession for a very long time, he having left it with a friend. The decision is not to be taken as laying down a starting point in cases of possession of a firearm of this type.

5. It was also urged upon us that the friend, who also pleaded guilty to the same charge, was given a sentence of only 12 months and that the applicant suffers from a justified sense of grievance. We do not know the details of the friend's plea in mitigation nor do we know if his sentence was appropriate. The correct approach in circumstances such as these is to consider what the proper sentence should have been for this applicant for this offence although a sentence imposed on a co-defendant may sometimes be taken into consideration. In the case of this applicant he had been convicted for robbery and was on bail when he committed the present offence. While he was on bail for the present offence he committed other offences of burglary. His apparent remorse has been described, rightfully, as being superficial.

6. Having regard to the circumstances of this applicant in this offence we think that the starting point used by the Judge below was slightly too high and would substitute for the 4½ years used by him a starting point of 4 years. Having regard to his early plea of guilty there should be a discount of 1/3, which leaves a sentence of 2 years and 8 months.

7. We give leave to appeal out of time and treating the application as the appeal itself reduce the sentence from 3½ years to one of 2 years and 8 months.

Representation:

Mr. Michael Poll instructed by D.L.A. for applicant

Mr. Frank Veltro, S.C.C. for Crown