Read the full judgment text of CAAR 10/2011 on BabelCite. This Court of Appeal judgment was delivered on 28 May 2012 before Stock VP, Yeung VP, Saw J.
Criminal law – sentencing – review of sentence – unlicensed possession of firearm contrary to section 13 of the Firearms and Ammunition Ordinance (Cap 238) – application by Secretary for Justice under section 81A of the Criminal Procedure Ordinance (Cap 221) – respondent, a 43-year-old managing director at Deutsche Bank with impeccable character, was detected at Hong Kong International Airport security checkpoint in possession of a functional 9mm self-loading pistol in his backpack – pistol had been given to him as a gift by his friend, Matt Schoeb, in Arizona around 1988-1989 as a token of gratitude for paying rent – respondent had kept it for about 20 years, including 9 years in Hong Kong, treating it as a sentimental memento – suffered from dependent personality disorder with compulsive need to hoard items and difficulty discarding possessions – claimed he forgot the pistol was in his backpack due to a hectic work and travel schedule around the time of his mother-in-law's death – whether sentencing judge erred in imposing non-custodial sentence of 240 hours community service and HK$50,000 fine – general deterrence as paramount consideration for unlicensed firearm possession – strict gun control laws contributing to Hong Kong's safety – Attorney General's Reference No 4 of 1989 test for unduly lenient sentences endorsed and applied – Secretary for Justice v Wong Chi Wai also followed – whether sentence was unduly lenient and outside the range reasonably open to the judge – court concluded the non-custodial sentence was indeed outside the reasonable range – judge erred in finding that possession posed no risk or danger to society, overlooking the risk of the weapon being left in a public place – judge gave too little weight to deterrence and to the fact that respondent knowingly brought the weapon into Hong Kong – too much weight given to personality disorder and mitigating factors – R v Yaldiz and R v Engert considered on the role of personality disorder in sentencing – appropriate custodial sentence after plea would have been in the region of 18 months imprisonment – Chan Chi Fun factors considered including type of firearm, carrying, loading, use, intent, storage, and prior record – whether to exercise discretion not to interfere despite the sentence being outside the range – post-sentence factors including seven months of further anxiety, over 200 hours of community service already performed, loss of employment, and diligent attendance at therapy – Everett v The Queen considered on exercise of discretion – application dismissed as it would be unconscionably harsh to substitute a term of imprisonment given the relative brevity of the appropriate custodial term.
Legal issues: Whether non-custodial sentence was unduly lenient for unlicensed firearm possession · Whether to exercise discretion not to interfere with unduly lenient sentence due to post-sentence factors
Outcome: Application for review of sentence dismissed; non-custodial sentence of 240 hours community service and HK$50,000 fine upheld despite being found outside the range reasonably open to the sentencing judge.
Cited by 7 cases