Lau Yuen Alias Lau Chung-hong v. The Queen
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CACC000870/1976
----------------- Coram: Briggs, C.J. , Pickering, J.A. & McMullin, Ag. J.A. Date of Judgment: 27th October, 1976. ----------------- JUDGMENT ----------------- McMullin, Ag. J.A. : 1. The appellant appealed against a sentence of two and a half years imposed upon him following upon his conviction in the District Court upon a single count of possession of arms without a licence contrary to sections 4(1) and 30 of the Arms and Ammunition Ordinance. We reduced that sentence to one of nine months and now give our reasons for doing so. 2. The appellant is 43 years of age. He has a wife and three children and works in a tourist agency. He has a clear record. The facts put forward in mitigation appear to be accepted by the Crown and were to the following effect: The appellant has a friend called LI Sung-lung whose family lives in Taiwan. The appellant used to visit him there and on one occasion Li procured for him an entry permit to that territory. Some four months before the arrest of the appellant, Li asked him to look after a trunk containing personal possession during a period when Li would be away in Taiwan. The appellant agreed to do so. In July of this year he was informed that Li had been arrested by Special Branch, apparently in connection with some political activity involving Taiwan and Hong Kong. He then became apprehensive and opened the trunk and found, amongst other possessions therein, the .32 calibre Beretta pistol which is the subject of the present charge. It is accepted that up to that point he was wholly innocent of any guilty complicity in the offence of possession of arms without a licence. However, upon this discovery instead of turning in the pistol to the police, or even disposing of it finally by dropping it in the harbour or in some other way, he took the very misguided course of trying to retain it in concealment. He persuaded his wife's brother (who was in fact the second accused charged with him in the present case) to take away the pistol and to hide it. The second accused, who was then apparently still at school, tried to prevail upon a teacher to look after the gun and upon his refusal to do so managed to secrete it, without the teacher's knowledge, in a toilet in the latter's premises. 3. LI Sung-lung was arrested in Hong Kong in July and it would appear that it was as a result of the interrogation of Li that the appellant was subsequently arrested. It is common ground that thereafter he co-operated fully with the police. He told them what he had done with the gun and the second accused was thereupon arrested and he in his turn led the police to the flat where he pointed out the place where the gun was concealed and it was then recovered by the police. 4. Mr. Niamatullah for the appellant points out that in passing sentence the learned District Judge placed considerable emphasis on what he called the "Taiwan connection". The learned judge referred to the case of HAU Sang v. The Queen (1) a case in which a man convicted of unlawful possession of explosives received a sentence of ten years' imprisonment. Mr. Niamatullah pointed out that the heavy sentence imposed in that case was directly related to the uneasy political situation then prevailing between various factions in the Colony, and to the fact that the appellate court accepted the Crown's contention that the explosives were probably in possession of the accused for the purpose of violent political activities. We think it is plain that in the present case it was accepted that the appellant himself had no direct political involvement and that in doing what he did he was not motivated by any intention of using the gun for any improper purpose himself. We think the proper view is that he was moved by panic at his discovery and by fear, prompted equally by the prospect of becoming involved in police investigations and by having to confront his friend Li empty-handed should he get rid of the weapon, in doing what he did. 5. In taking the course which we have taken we do not wish to be understood as implying that the possession of arms without a licence can ever be anything but a serious offence. For that reason, and notwithstanding the background already described, we are satisfied that a custodial sentence was appropriate, but we think that the circumstances did not warrant so heavy a punishment. The appellant's real default in this matter lies in the fact that confronted with an awkward and unexpected situation he failed to take his proper course as a honest citizen and hand the gun over to the authorities. In dealing with the matter in the way in which he did the inference is at least open that it was his intention to restore the weapon to the possession of Li should the latter return and ask for it. The matter of Li's "Taiwan connection" was not explored before the learned District Judge but whatever may be the truth of that there was nothing in the facts placed before the learned District Judge to justify the inference that the appellant himself had any such connection. Representation: A.M. Nimatullah (Rowdget W. Young & Co.) for Appellant. M. Lucas, D.D.P.P. , for Respondent. (1) (1963) H.K.L.R. 880. |