HKSAR v. Wong Kwok Kin

CACC 23/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 23 OF 2011

(ON APPEAL FROM HCCC NO. 359 OF 2010)

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BETWEEN

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Before: Hon Hartmann JA and Line J in Court

Date of Hearing: 9 August 2011

Date of Judgment: 9 August 2011

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Hon Hartmann JA (giving the judgment of the Court):

1.On 10 December 2010, having earlier pleaded guilty in the Magistrates Court to the offence of possession of arms and ammunition without a licence, contrary to s. 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238, the applicant was sentenced in the Court of First Instance by Mr Justice Macrae to a term of 7 years and 9 months’ imprisonment. The applicant now seeks leave to appeal that sentence out of time on the basis that it is wrong in principle and/or manifestly excessive.

2.On 5 June 2010, the applicant was arrested while sitting in a restaurant.  At the time he had in his possession a paper bag which itself contained a shoebox.  Inside the shoebox, wrapped in another bag, was a 9 mm pistol containing four rounds of live 9 mm ammunition.  In addition, three loose rounds of live 7.62 ammunition were found.

3.The pistol was confirmed to be a model manufactured in Brazil known as a ‘Taurus’.  It was in working order and was successfully test fired.  The ammunition found in it was suitable for discharge from that pistol.  The three rounds of 7.62 ammunition was also found to be suitable for discharge but in a firearm capable of firing ammunition of that calibre: the agreed statement of facts gave as an example of such a weapon a Chinese manufactured ‘Type 54’ self-loading pistol.

4.Under caution, the applicant said that he had been approached in a public house by a man who called himself ‘Ah Ming’ and, for a consideration of $5,000, had agreed to hold the pistol and ammunition for him for a few days.  Ah Ming had telephoned him that day, instructing him to go to the restaurant so that the pistol and ammunition could be returned.  It was at the restaurant that the applicant was arrested.  The applicant said that, prior to taking the pistol and ammunition to the restaurant, he had re-packed it in order to make it less conspicuous.  The applicant said that he knew nothing more of Ah Ming and did not know how to contact him.

5.Understandably, the sentencing judge was “skeptical” of this version of events.  The judge, however, was prepared to accept that, while the applicant may have safeguarded the pistol and ammunition on behalf of another for a limited period of time, he himself had no intention of using it.

6.In assessing an appropriate sentence, the judge took as his starting point a sentence of 12 years’ imprisonment, basing it on the direction given by this Court in HKSAR v Chan Hoi Ngam [2001] 1 HKC 618, at 625, that a starting point of 12 years can be regarded as the proper starting point for possession of a firearm and ammunition.  Despite what the judge considered to be the potentially aggravating feature of the presence of the 7.62 mm ammunition, he saw no reason to depart from that starting point.

7.In addition to the one-third discount merited by the applicant’s plea of guilty, the judge took two matters into account which, in his view, merited a further discount of three months.  First, that the applicant had pleaded guilty at the first available opportunity before a magistrate and, second, that the applicant’s history of the commission of only petty offences tended to support his assertion that he had acted as no more than a temporary custodian of the pistol and ammunition, having no intention of using them.  It was on this basis that a sentence of 7 years and 9 months’ imprisonment was imposed.

8.On behalf of the applicant, Mr Oliver Davies has submitted that the judge was in error in adopting the starting point of 12 years laid down in Chan Hoi Ngam, the facts of that case being altogether more serious.

9.We disagree.  The Court in Chan Hoi Ngam, recognized that Hong Kong’s firearms sentencing policy is designed to act as a strong deterrent to those with no right to have weapons and ammunition in their possession.  Even if it is arguable that, in setting 12 years as an appropriate starting point, the Court was not doing so in respect of all cases of possession of a firearm or ammunition, it was certainly doing so in respect of persons who have in their possession a working firearm together with live ammunition, the applicant now before us being in that exact same position.  Giving the judgment of the Court, Stuart-Moore VP said (at 625E):

“          We can say immediately that we reject Mr McNamara’s submission that the courts have adopted a starting point for offences of this kind which is too high.  Depending on the circumstances, the sentencing judge has a considerable discretion to reduce the period of imprisonment to be served, even where a 12-year starting point after trial is taken.  An illustration of this is to be seen in R v Milhench (1996) 1 HKC 86, where, as it so happens, Mr McNamara appeared with leading counsel for the defence and I was the sentencing judge.  In that case, the Court of Appeal did not disagree with a starting point of 12 years being taken for the simple possession of a firearm and ammunition.  The mitigation in that case was very unusual, and the Court of Appeal described the 4½ year sentence that I imposed as having provided a “more than generous discount”.  The point which clearly and obviously emerges is that, although a starting point of 12 years can be regarded as the proper starting point for the possession of a firearm and ammunition, there were special features in Milhench which enabled the sentence to be reduced well below the normal tariff.

We can see in the present case no basis for interfering with the sentence that was imposed.  This was exactly the kind of case which merited a high starting point, and we would not have criticised the judge if he had adopted 12 years as the appropriate starting point.  Such a starting point will normally be appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available for use.”  

10.In Chan Hoi Ngam, the applicant had been found inside his business premises carrying a self-loading pistol in a holster, the pistol being loaded with live 9 mm rounds.  In a briefcase, the police found further live rounds, a silencer and a canister of CS gas.  The applicant said that he had the pistol and live ammunition in his possession for self-defence.  The applicant had admitted buying the weapon and the accompanying items in the Mainland, saying that they had been for his own protection.  It emerged in evidence that the applicant was a gun enthusiast.  In sentencing the applicant, the judge at first instance had been prepared to accept that, because of his history, he had felt the need to protect himself.  In the circumstances, however, it was held to be scant mitigation for, on any objective consideration, there had in fact been no need to arm himself as he did.

11.In the case now before us, while the applicant may not have intended to use the weapon himself, he must inevitably have appreciated the very real risk that it was intended to be used for some criminal purpose.  Why else would he be rewarded to keep it for a limited period of time and then, when instructed, to deliver it up?  In our view, that is where the true measure of the applicant’s culpability is to be identified.  He was prepared, for reward, to safeguard a lethal weapon knowing that, when it was handed back, it was highly likely to be used in some criminal purpose.  He may not himself have intended to use it but he was prepared to safeguard it in the knowledge that in all likelihood a third party would wish to do so.

12.In concluding that a 12 year starting point was appropriate, the Court in Chan Hoi Ngam made reference to a number of earlier cases including that of R v Ho Chun [1992] 1 HKCLR 86, a case in which the applicant on appeal had pleaded guilty to possession of a pistol and live rounds, asserting that he was holding them for a friend.  In giving the judgment of the Court of Appeal, Silke VP said:

“In the light of the spate of robberies which are now taking place in Hong Kong and in which the use of guns is involved trial judges could well consider an upward revision of that “at least six years” guideline.  We would indicate that this Court would be unlikely to interfere with sentences of at least eight years’ imprisonment.  This of course relates to sentence after a plea.”

13.Of direct relevance to the present case, in Ho Chun the Vice President went on to observe that persons who are minded to hold weapons in safekeeping for others must be made aware that they are themselves committing offences of “considerable gravity”.

14.In an attempt to persuade us that in the present case the sentencing judge adopted too high a starting point, Mr Davies has referred to a number of other authorities.  Each of those cases were decided very much on their own facts and in our view do not support the contention that the starting point adopted by the judge in the present case of 12 years was in anyway wrong in principle or manifestly excessive.

15.For the reasons given, while leave is granted to apply out of time, the application for leave to appeal is dismissed.

Ms Peggy Leung, SPP (Ag) of the Department of Justice, for the Respondent

Mr Oliver Davies, instructed by Messrs Wong & Co., for the Applicant