R. v. Cheng Yu Cheung

CACC000057/1995

IN THE COURT OF APPEAL

1995, No. 57
(Criminal)

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Coram: Hon. Power, Ag C.J., Liu and Mayo, JJ.A.

Date of hearing: 22 September 1995

Date of judgment: 22 September 1995

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J U D G M E N T

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Liu, J.A.:

1. The applicant applies for leave to appeal against his sentence of two years, which was imposed upon him by His Honour Judge Surman. He acts in person today, but we have the advantage of the Amended Perfected Grounds of Appeal against sentence prepared by his counsel who is unfortunately absent.

2. The applicant stood charged before the judge with possessing a stun gun without permission or licence. We have had produced for our inspection this article, the subject-matter of the charge. He pleaded guilty and was sentenced to two years' imprisonment. The judge selected a starting point of two and a half years and reduced it by six months for his guilty plea. This object in the charge has an electric output of 5,200 volt. It was described by an expert called at the trial as the least lethal of the stun guns in that category. The expert further assisted the court as to its effect: it could not cause death to a healthy victim. The judge observed that the stun gun in question might cause death but was unlikely to do so. The applicant offered his explanations to the judge that he acquired the stun gun in July 1993 against possible attacks by loan sharks and that when he departed from Hong Kong in October 1993, he left it with a friend who was in fact his co-accused in the same proceedings. The applicant did not see the stun gun again since that date until his trial in January 1995. These explanations were not challenged by the prosecution. The man with whom the stun gun was left, was also sentenced but earlier on his own plea of guilty to two months' imprisonment for being in possession of it. When it came to the case of the applicant, in addition to the 'potential danger of the stun gun as commented upon by the judge, the judge described it as an aid to violent crime. We have, as I said, an opportunity of seeing the stun gun. It must be right to say that no court would countenance the illegal possession of a contraption of this kind. When it is switched on, it would produce a visible electrical arc and a cracking sound. However, there is no resemblance of a gun or revolver. It is by no means as menacing as a firearm. While it could be an aid to violent crime it is of limited application, at close quarters. But nevertheless it is an article, the possession of which is not permitted by law and should be sternly discouraged. The starting point adopted by the trial judge cannot be said, in all the circumstances of this case, to be unduly high.

3. However, the personal particulars and the mitigation advanced by the applicant did not seem to have been given full weight by the judge. He pleaded guilty and had a clear record. His claim of purchase and possession of the stun gun for self-defence was not sought to be challenged. Moreover, he had parted with possession of it since October 1993. His grievance over the 2-month sentence of his co-defendant and a recent sentence of one year for a similar offence cannot be justified. But taking all into consideration and being as merciful as we could, we would allow a higher discount. We regard a fixed term of a year to be just and appropriate in this case.

4. Therefore his sentence of two years be reduced to a sentence of 12 months and the application of the applicant is allowed and his application for leave to appeal be treated as the hearing of the appeal. We allow the appeal and reduce his sentence by half.

Representation:

Mr A A Bruce, SACP of Crown Prosecutor for Respondent

Mr B Beaumount (absent) assigned by D.L.A. for the Applicant