The Queen v. Cheung Hon Kwong and Others

CACC000503A/1989

BETWEEN

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Coram: Hon. Sir Derek Cons, Ag., C.J., Clough, J.A. and Barnes, J.

Date of hearing: 20 November 1990

Date of judgment: 20 November 1990

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JUDGMENT

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Clough, J.A.:

1. On the 14th August 1990 this court dismissed the application of the 3rd applicant for leave to appeal against her conviction after trial by Hopkinson J. and a jury of the possession, jointly with the first applicant, of a .38 revolver and five rounds of .38 ammunition without a licence contrary to section 13(1) of the Firearms and Ammunition Ordinance (Cap. 238).  The background of this matter is set out in the reserved judgment we delivered on that date when we directed that the 3rd applicant's application for leave to appeal against sentence be determined on a subsequent date which has been fixed for to-day.

2. The 3rd applicant was a minder of the revolver and ammunition in question. They belonged to her friend the 1st applicant who had left them in her flat which he often visited. Upon his arrest by the police on the 31st January 1989 the 1st applicant had told the police that the firearms were in her flat and had shown them where they were. The revolver was in the 3rd applicant's bedroom in her small travelling grip bag which also contained various personal belongings of hers. The ammunition was in a spectacles case of the 1st applicant in a wall unit in the sitting room of her flat.

3. The relationship between the 1st and third applicants had been close. She was employed as a masseuse by night and had met him a few months earlier as a customer in the sauna establishment where she worked. She is now . 38. She is married, and has a son of 12 years of age, but was not on good terms with her husband at the material time. We have been told by her leading counsel today that her husband is taking divorce proceedings against her and that it seems likely that she will lose custody of her son. The 1st applicant is married and during his relationship with the 3rd applicant he also had a mistress. The 3rd applicant appears to have been, in the view of the judge, infatuated with him and to have lent him money for the purposes of a joint trading venture in which he had persuaded her to join with him.

4. Her defence, which the jury rejected, had been that the 1st applicant had put the firearms in her flat without her knowledge and she had never been aware of their presence. There was no evidence that she herself had any intention of using or dealing in firearms. After her conviction she insisted through her counsel in mitigation that she was innocent and therefore expressed no remorse.

5. The judge, it seems to us rightly, regarded the 1st applicant as a charlatan with a very bad record who had talked himself into the affection of the 3rd applicant and induced her to entertain him and have him to stay overnight in her flat and to lend him about $35,000 for his business whilst providing her with a fancy business card and telling her he would send her to Switzerland to buy cargo vessels.

6. The judge was of the view that she was clearly besotted with the 1st applicant and would do anything he wanted. He regarded the case as a very sad one. He was prepared to sentence her on the footing that the 1st applicant had prevailed upon her to keep the gun for him. He was also prepared to go so far as to sentence her on the footing that, notwithstanding the jury's verdict, she may not have been aware of the presence of the ammunition, because it was found in the wall unit where the 1st applicant had kept his possessions. We observe that we do not wish to be taken to be accepting that the judge was entitled to disregard the verdict of the jury in this respect.

7. The judge therefore sentenced her only in respect of the revolver without the ammunition and he said he was giving her what consideration he could for having completely lost her head to a dangerous man. Having reminded himself that in A.G. v. Li Kit Wa [1988]2 HKLR 286 another division of this court had held (applying A.G. v. Lai Shu-piu AR No.12/85) that the proper sentence on a plea of guilty for simple possession of a firearm would be six years imprisonment, the judge sentenced the 3rd applicant to 5 years imprisonment.

8. On behalf of the 3rd applicant it is contended that this sentence is manifestly excessive in all the circumstances. Mr. Cheng Huan has stressed on her behalf that the judge sentenced the 3rd applicant on the basis that she did not know of the presence of the ammunition in her flat and that she was doing the bidding of the 1st applicant. He contends that although there is a 6 year guideline for a plea of guilty on a simple possession of firearms charge this case is exceptional and justifies special leniency. He relies heavily in this respect on R. v. Ng Kwok-ying (Cr. App. No. 109 of 1986) where the applicant was a married woman with a young family and there was a strong suspicion that whilst she had been legally in possession she had had no real control over the arms which had been kept in her safe deposit box in her bank which she shared with her husband. We emphasise here that the division of this court that decided that case expressly declared that it was a wholly exceptional case.

9. Mr. Cheng Huan also cited A. G. v. Chan Chi Mei-wah [1990]1 HKLR 190 where the firearm in question had been loaded and sentence was increased on an Attorney General's reference to only 5 years imprisonment in extenuating circumstances. He also stressed, as indeed the judge had done, that this was a very sad case. He contended that the 3rd applicant had not really had control of the firearm in question.

10. It is well recognised that whilst this court regards the gravity of the offence of unlicensed possession of a firearm to be such as to require a "guideline" sentence of 6 years imprisonment even on a plea of guilty for simple possession, this does not mean that a strait-jacket is to be imposed on the sentencing court, which will be entitled to depart from the guideline and show leniency where there are special mitigating circumstances. This has been said many times: see for example A.G. v. Jim Chong-shing [1990]1 HKLR 131 at p.138G citing the dictum of Sir Denys Roberts C.J. to this effect in R. v. Yau Koon-yau AR No. 12 of 1984.

11. In the present case where the judge was of the view that the applicant had been prevailed upon by a man with whom she was infatuated to keep his firearms, the judge was we think, right to show her a degree of leniency. However she had not pleaded guilty, so the starting point for her sentence had to be more than 6 years. The 2nd applicant received a sentence of  7 years imprisonment for simple possession of a revolver and 27 rounds of ammunition for' which he was jointly convicted with the 1st applicant, the firearms having been found in the 2nd applicant's flat. The 1st applicant was sentenced to 6 years imprisonment in respect of each of the counts of possession in which he was joined with the 2nd and 3rd applicants respectively, but he was sentenced on a totality basis.

12. Having regard to the fact that the 3rd applicant received a sentence of 2 years less than the 2nd applicant, which indicates a substantial degree of leniency on account of her special circumstances we consider that the judge struck the right balance between the relevant mitigating factors in her favour on the one hand and the need to deter persons from accepting possession of unlawful firearms on the other hand.

13. Although the circumstances of this case are of course different from those pertaining in A.G. v. Chan Chi Mei-wan cited by Mr. Cheng Huan, we apply the approach of another division of this court in that case as expressed by my Lord Sir Derek Cons V.P. at p.193G where he said in considering the sentence appropriate for a married woman with young children who had kept firearms for her younger brother:

"We appreciate that there is in Hong Kong no trade in guns comparable to that in dangerous drugs. But nevertheless a similar danger must exist. If it is ignored the unlawful holder of a gun who wishes to lessen the risk to himself or needs for some other reason to have it housed elsewhere will inevitably look to someone who is likely to arouse sympathy if apprehended. Therefore in the balance which the court has to make between the mitigating factors and the need to deter persons from accepting possession of unlawful guns, particularly when loaded, the mitigating factors can carry little weight. In our judgment, even exercising the greatest degree of clemency that the public interest would permit, the least term of imprisonment appropriate to the present circumstances is five years."

14. Accordingly we dismiss this application.

Representation:

Mr. A.P. Duckett & Miss I. Cheung (Crown Prosecutor) for Respondent/Crown

Cheng Huan, Q.C. & Selwyn Yu (C.K. Mok & Co.) for 3rd Applicant