HKSAR v. Wong Chung Ling

CACC 276/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 276 OF 2009

(ON APPEAL FROM HCCC NO. 77 of 2009)

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BETWEEN

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Before: Hon Yeung JA and Macrae J in Court

Date of Hearing and Judgment: 31 May 2011

Date of Handing Down Reasons for Judgment: 9 June 2011

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REASONS FOR JUDGMENT

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Hon Macrae J (giving the Reasons for Judgment of the Court):

1.The applicant, who was unrepresented in his submissions before us, was convicted on his own plea before Deputy Judge Mackintosh (as he then was) of possession of three self-loading pistols and 32 rounds of ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238 (the Ordinance). 12 rounds of ammunition were suitable for discharge by one of the firearms, while the other 20 rounds were suitable for discharge by the two remaining firearms. He was sentenced to 6 years’ imprisonment, from which sentence he now appeals. (Although unrepresented, the applicant’s legal aid certificate had not been formally discharged and Mr Ross appeared at the hearing to assist the applicant and the Court).

2.The firearms and ammunition in question were found wrapped in plastic bags and labour gloves inside a cupboard in the kitchen of the applicant’s home in Shui Pin Wai Estate, Yuen Long.  Although no ammunition was inserted into the magazines of the firearms, they were each found to be in working order.  However, no traces of firing were found in any of the firearms, nor were any of the items connected with any known crimes in Hong Kong.

3.An unusual feature of the case, which was accepted and so described by the learned judge, was that, although the firearms and ammunition had been kept by the applicant for about two years, he had decided to give them up to the police in circumstances which were explained to the court and, accordingly, had told them of their existence and whereabouts. Effectively, he surrendered them to the police, although the surrender was hedged by conditions which the police refused to accept.  The learned judge considered that such surrender went “directly to the commission of the offence”, for which it was more appropriate to adjust the starting point rather than enhance the discount for mitigation.  Accordingly, whilst acknowledging the usual appropriate starting point of 12 years’ imprisonment for a possession offence under section 13 of the Ordinance, he adopted a starting point of 10 years’ and ultimately discounted the sentence for mitigation to 6 years’ imprisonment.

4.The applicant contends that, in the light of that which was accepted by the learned judge, the starting point of 10 years’ imprisonment was manifestly excessive.  However, it must be remembered that the sentencing court was dealing with three pistols, all of which were in working order, together with associated ammunition suitable for firing by them. Although it is true that there was no direct evidence that the firearms and ammunition had been or were to be used in any criminal enterprise here in Hong Kong, it was not contended by the applicant’s counsel in mitigation that he misguidedly possessed them as a gun enthusiast or collector.  The circumstances of his possession were simply neutral and his purpose or intent unknown.

5.The circumstances were, therefore, somewhat different to the facts of HKSAR v Chan Chi Fun (2006) 1 HKLRD 128, on which the applicant relied before us.  There, the Court accepted that some of the firearms in question had originally been bought lawfully by the appellant in the United States for self-defence purposes when operating a restaurant business there and subsequently brought unlawfully into Hong Kong; whilst he had acquired the other firearms as a collector.  The sentencing court had specifically found that the defendant, who was of good character, did not intend to use any of the firearms to commit any offence and that they had either been stored securely in a safe or dismantled accordingly.

6.In the present case, the learned judge noted that, although he had not been before the courts since the mid-1990’s, the applicant did not have a clear record.  In 1985 he had been sentenced in the High Court to 6 years’ imprisonment for trafficking in dangerous drugs, and in 1995 to 8 years’ for a similar offence.  Admittedly rather longer ago, in 1968, the applicant had also been sent to a Training Centre for aggravated robbery; and in 1973, to DATC for a further offence of robbery.  In 1991 he had been imprisoned for 6 months in connection with the use of a forged travel document.

7.In all the circumstances, and giving full credit to the applicant for surrendering the three pistols to the police, we do not think the starting point of 10 years’ imprisonment can be criticised.  Even if it could be said to have been on the high side in all the circumstances, the fact is that the applicant received a further 40% discount from that starting point for mitigation, notwithstanding that he did not have, as we have just pointed out, a clear record.  Given that 12 years’ imprisonment would normally have been appropriate after trial in respect of the possession of a single working firearm with available ammunition, it cannot be said that the sentence passed in this case of 6 years’ imprisonment after plea did not properly reflect the unusual circumstances of the particular offence and mitigation advanced.

8.The appeal is dismissed.

Ms Rosa Lo, PP of the Department of Justice, for the Respondent

Mr Ross Philip Geoffrey, instructed by Messrs Wong & Wong in lieu of Messrs Peter W K Lo & Co, assigned by the Director of Legal Aid, for the Applicant (Assist Court only)