The Queen v. Lee Wing Fu

IN THE COURT OF APPEAL

1987, No. 182
(Criminal)

BETWEEN

THE QUEEN

and

LEE WING FU

________________

Coram: Cons. V.-P., Fuad & Hunter, JJ.A.

Date of Hearing: 4th June 1987

Date of Judgment: 4th June 1987

_______________________

J U D G M E N T

_______________________

Fuad, J.A. (delivering the judgment of the Court)

1. The Applicant, Lee Wing Fu, who is aged about 36, was charged with two offences under s.14(1) of the Firearms and Ammunition Ordinance. Cap.238. The first charge was for dealing with firearms without a licence and the second for dealing with ammunition without a licence. He pleaded guilty to both charges at the committal stage and was remanded for sentence to the High Court.

2. On 20 March 1987, Hopkinson J. imposed concurrent sentences of 7½ years' imprisonment for each offence.

3. The Firearms Ordinance, by s.14, makes it an offence, by way of trade or business, to deal in any arms or ammunition without a dealer's licence. At first sight, it might seem that the facts disclosed by this case are not covered by the ordinary meaning of the word "deal", but the definition of the words "deal in" in subsection (1) of s.2 of the Ordinance makes it clear that those words include the manufacture of arms and ammunition.

4. We would mentior here that when the Ordinance was amended by Ordinance No. 59 of 1984, a number of sections which provided for the punishment for the punishment for particular offences were amended by increasing the sentences a Court can impose. For example, the maximum punishment for possession of firearms or ammunition without a licence went up from 10 to 14 years; the maximum sentence for possession of arms or ammunition with intent to endanger life went up from 14 years to life imprisonment; and the maximum punishment for converting an imitation firearm into a firearm went up from 5 to 14 years. However, the sentence for the offences with which the Applicant was charged remained at the maximum of 10 years. This was, of course, entirely a matte of legislature but in the light of the pattern of sentences laid down in the amended Ordinance, when one has regard to the fact that dealing in arms and ammunition includes their manufacture, it may be that the legislature did not appreciate the seriousness of that aspect of “dealing in” arms and ammunition.

5. The facts were that the police received information which resulted in the arrest of the Application on 19 November last year. He gave a number of statements to the police and the Crown very fairly conceded all along that he was extremely co-operative with the police. There can be little doubt that he might power have been charged had he not given the information he gave, for lack of evidence.

6. He told the police that he had been approached by a man called “Ah Fai” and asked to manufacture guns and ammunition for him. The profit he would have made would have been about $15,000. With the help of others who made various parts for the weapons, he manufactured three guns and a total of 100 rounds of ammunition. He told the police that he had gone on a number of occasions with the others involved in this matter to a country park for the guns to be tested. On one occasion in May, while Ah Fai was cleaning one of the guns, he shot the Applicant accidentally in the chest. The bullet was removed by surgery some months later, after his arrest. It appears that the Applicant was interested in firearms from his youth.

7. He must be regarded as having been a first offender although he did appear before a Court on a theft charge in 1966 (when he was a teenager) when a conviction was not recorded against him despite the fact that the theft was proved.

8. Mr. Ramanathan has urged upon us that the sentences imposed by the learned judge did not reflect the mitigating circumstances, despite the fact that he appeared to have taken them into account. In the judge's reasons he mentioned the fact that the Applicant had pleaded guilty at the first opportunity and that he had co-operated with the police. The learned judge said that he found it "difficult to imagine a more serious way of committing this particular offence" and indicated that he would have imposed the maximum sentence of 10 years but that in view of the circumstances, he would make a 25% discount.

9. It seems clear to us from the words used by the judge that he was taking all the mitigating circumstances into account and not simply the plea of guilty. Perhaps the judge was putting the matter too high when he said that he could not imagine a more serious way of committing this offence, because in respect of the manufacture of arms and ammunition, one can envisage manufacturing on a grander scale than the Applicant's operation. Nevertheless, we consider that his admitted conduct fell within the top band of seriousness for offences under s.14., and we are not persuaded that the "discount" was too small.

10. Although the sentence was severe, we are unable to say that it was manifestly excessive. Therefore, the application for leave to appeal against sentence is refused.

Mr. K. Ramanathan (D.L.A.) for the Applicant.

Mr. G. McCoy and Miss Jane Corr for the Crown.