The Queen v. Wong Kwai Pui

CACC000522/1989

BETWEEN

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Coram: Hon. Yang, C.J., Silke, V.-P., & Macdougall, J.A.

Date of Hearing: 5 June 1990

Date of Judgment: 5 June 1990

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JUDGMENT

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Silke, V.-P.:

1. WONG Kwai-pui appeared for trial before His Honour Leonard, sitting as a Deputy Judge of the High Court, on an indictment containing three counts: the first alleged possession of arms and ammunition without a licence contrary to s.13 of the Firearms and Ammunitions Ordinance Cap.238; the second, handling stolen goods contrary to s.24 of the Theft Ordinance; and the third, possession of a forged document contrary to s.76(3) of the Crimes Ordinance. To these three counts he pleaded guilty and was sentenced respectively to six years, three and a half years and eighteen months imprisonment. Those sentences were directed to run consecutively giving a totality of eleven years.

2. All the offences were uncovered at a premises 482 Castle Peak Road, Hutchison Estate, Kwai Chung. The gun was a Charter Arms Model "Undercover" .38 calibre revolver loaded with five rounds of ammunition. The stolen goods received was a quantity of jewellery valued at $3m and the forged document was a Singapore passport in the name of HO Chow-seng.

3. There had been an armed robbery at the Sammy's Jewellery Company on the 30th of May 1989. When the premises at Castle peak Road was raided on the 5th of June of 1989 the jewellery which was stolen in that robbery was found in the applicant's room, the gun in his jacket hanging in that room and the passport had a false Hong Kong Immigration stamp upon it.

4. The applicant accepted that he had bought jewellery on the 4th of June for $2.1m. He had been approached in China on the 1st of June, obviously with a view to the handling of these goods, and he came to Hong Kong illegally oh the 3rd. He had hoped to bring the jewellery back to China and there make $lm profit. He said he had brought the gun with him for protection against his associates with whom he was dealing in relation to the handling of the stolen property because he did not trust them. He had two previous convictions in Hong Kong, each for the use of a forged travel document and both of them had led to prison sentences.

5. His background was that in 1979 he moved into the smuggling racket, successfully it would seem, because he had the capital to invest in the purchase of these goods. At one point he tried to re-establish himself overseas and he attempted to gain access to Hong Kong and other countries with false passports. He had been deported to China on the conclusion of the sentences he had served in Hong Kong.

6. It was not suggested that he was directly involved in the robbery or that the gun which he had was used in it.

7. In passing the sentences he did the trial judge, having had various authorities relating to sentence presented to him, this in particular on the aspect of the possession of the gun, said that he noted that for a plea of guilty for simple possession of a pistol the Court of Appeal appeared to have made no distinction between a loaded pistol and an unloaded pistol when suggesting the guideline of 6 years. He said that but for that tact he would have imposed a sentence of seven years on the gun possession count. He took into account the totality of the sentence he was imposing, the facts of the cases outlined to the court, the applicant's record and, in particular, he gave credit for the plea of guilty.

8. Mr. Nguyen who appears for the applicant in this court has advanced two grounds of appeal: first that the trial judge erred in imposing consecutive sentences for he says that there is both a time proximity and a factual connection between the offences. With respect we do not accept that. These were three distinct and separate offences and to make the sentences run consecutively was the proper order here. The gun had been brought from China, ostensibly for the protection of the applicant. The goods were handled in Hong Kong although he was aware of the fact that they were waiting for him when he left China for Hong Kong. The passport was to assist his entry and exit.

9. The second point that Mr. Nguyen makes is that in all the circumstances of the case the total of 11 years was manifestly excessive.

10. The Attorney General v. LI Kit-wai ([1988] 2 H.K.L.R. 286) is the latest in the line of cases relating to the proper sentence upon a plea of guilty for possession of a gun. The court there followed the approach laid down in The Attorney General v. LAI Shu-piu and another (Application for Review No.12 of 1985 - unreported) in holding that the proper sentence on a plea of guilty for simple possession of a gun would be six years. We note that in LI Kit-wai and apparently in the other unreported cases the guns were loaded.

11. In LAI Shu-piu Sir Alan Huggins, in giving the judgment of the Court, having made reference to the six year sentence on plea for "simple possession" went on that it follows that where there is an intent to use the gun for an unlawful purpose something in excess of six years is appropriate. We do not, of course, here have circumstances such as that but it may well be that the courts from now on might wish to consider that, if a person is found in possession of a gun and the gun is loaded, that is an aggravating factor and one which might well lead to the enhancement of usual sentence. That is not something which we will consider to the disadvantage of the applicant here.

12. In passing the sentence he did the trial judge, as we have indicated, stated that he had in mind totality. Given all the circumstances here we do not consider that he "stood back" far enough in his evaluation. It is proper for a trial judge to consider the individual sentences - there is no suggestion that individually these sentences are in any way wrong - then to consider circumstances such as the necessity to inhibit other persons from committing the same type of offence, the seriousness of the individual offences and matters of that Kind. Having done that, he should stand back and look at the sentences overall and come to a proper sentence neither too heavy nor too light. Here we take the view that the trial judge did not go quite far enough in his stance. We think a sentence of nine years' imprisonment would have been appropriate.

13. We therefore grant leave, treat the hearing as the hearing of the appeal and reduce the sentence of eleven years to one of nine. To effect this, and for this purpose only, we reduce the sentence on the first count to one of four years, leaving the other counts to remain as they stand, arriving at the total of nine years.

Representation:

Peter Nguyen, Esq. (D.L.A.) for Applicant

D.G. Saw, Esq. for Crown/Respondent