HKSAR v. Ng Wah Kan

CACC 126/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 2013

(ON APPEAL FROM HCCC 12 OF 2013)

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BETWEEN

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J U D G M E N T

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Hon Lunn JA (giving the judgment of the court):

1.The applicant seeks leave to appeal 2 days out of time against the sentences of imprisonment imposed upon him by Deputy High Court Judge Stuart-Moore on 19 March 2013, following his conviction on his pleas of guilty in the Magistracy of three charges. The applicant was sentenced to a total of 6 years and 8 months’ imprisonment.

THE CHARGES

2.Charges 1, 2 and 3 alleged offences of possession of arms and ammunition and possession of ammunition respectively, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238.

THE FACTS

Charge 1

3.In the afternoon of 10 May 2012, the applicant was intercepted by a police officer in Long Tin Road, Tin Shui Wai after he had been seen acting suspiciously in what was described as underbrush. Upon seeing the police officer, the applicant threw away a plastic bag, which was found to contain a home-made pistol loaded with a home-made cartridge.  The cartridge was found to contain 7 nails amongst other items.  In his waist bag it was found a home-made barrel of a pistol.  The home-made pistol was found to be inoperative, because of corrosion by rust.  However, after it had been cleaned it was found to be capable of firing appropriate calibre ammunition, namely .410 calibre shortshells; .44 Smith & Wesson special calibre; and a .44 Magnum calibre.  The home-made barrel was found to be capable of being attached to the receiver of the pistol.  It too was capable of firing the same ammunition.

Charges 2 and 3

4.On 12 May 2012 a search of two premises in the possession of the applicant, a hut at Hang Tau Tsuen, Yuen Long and a flat at Room 2907, Yiu Man House, Tin Yiu Estate, revealed the presence of cartridges for cartridge-operated fixing tools.  No less than 500 such cartridges were found in the former premises and 10 in the latter premises.

5.In a video recorded interview conducted of the applicant under caution on 12 May 2012 the applicant contended that he had come by the pistol through a fellow worker on a construction site nearby to the hut.  From information given to him, he had recovered it from where it lay buried in a lawn near the hut.  He intended to throw it away, when he was intercepted by police officers.  He said that he had found the cartridges the subject of Charge 2 on a construction site and those the subject of Charge 3 on a rubbish dump.  He said that he did not have a cartridge-operated fixing tool, which is used in decoration work.  However, he intended to give the cartridges to children.

REASONS FOR SENTENCE

6.The judge stated that he rejected the applicant’s explanation for possession of the pistol (Charge 1), given in the video recorded interview and adopted in mitigation, as “utterly implausible”.  He accepted that, as a result of corrosion caused by rust, the pistol was not operative at the time that the applicant was arrested.  However, he noted that it was rendered operative by the process of cleaning and had been found capable of firing ammunition, as had the pistol barrel that the applicant had with him.

7.The judge noted that the applicant had appeared before the court on five previous occasions and that the “principal convictions involve violence”.  In particular he observed that for two cases of wounding with intent, contrary to section 17 of the Offences against the Person Ordinance, the applicant had been sentenced to 12 years’ imprisonment and that in 2000 he was sentenced to 6 years’ imprisonment for attempted rape.  He said that the fact that the applicant had “used violence on his victims before” was :

“ …why possession of this pistol takes on a very sinister aspect. It is a factor of some importance that this was being carried by the defendant in a public place.”

8.The judge said that there was copious authority [1] that the starting point for possession of a loaded firearm was 12 years’ imprisonment, “in the absence of mitigation which may reveal that the purpose of possessing the firearm is not to embark upon a criminal enterprise with it.”

Starting point

9.In the event, notwithstanding the circumstances in which the applicant had been found in possession of the pistol and ammunition, the judge stated that, given that it was in a condition where it could not be fired at that time, he took a starting point of 10 years’ imprisonment.

Mitigation

10.The judge said that he regarded the “only real matters” in mitigation to be the applicant’s pleas of guilty from the outset and the condition of the pistol.

Sentence

11.As noted earlier, the judge sentenced the applicant to 6 years and 8 months’ imprisonment in respect of Charge 1, ordering that the sentences of 12 months’ and 2 months’ imprisonment imposed in respect of Charges 2 and 3 respectively be served concurrently to that imposed in respect of Charge 1.

GROUNDS OF APPEAL AGAINST SENTENCE

12.In his grounds of appeal against sentence, Mr McGowan submitted that the judge placed excessive weight on the fact of the applicant’s previous convictions and erred in doing so.  He invited the court to note that the applicant’s last conviction was 12 years prior to the conduct the subject of the instant charges.  Further, he reminded the court that none of the previous offences involved the possession of a firearm or ammunition.  Next, he contended that the judge had failed to take into account the absence of any evidence of any intention to use the firearm for an unlawful purpose.  Then, he said that the judge failed to have regard to the fact that the bullet which was capable of being discharged was found in the non-functioning firearm.

A CONSIDERATION OF THE SUBMISSIONS

13.The applicant, who was 66 years of age at the time of the commission of the offences, has a criminal record that stretches back in time to 1964, when he was sentenced to 2 years’ imprisonment for what was described as “shopbreaking”.  In 1984, for two offences (one for wounding, contrary to section 17 and one for wounding, contrary to section 19) and an offence of resisting a police officer, the applicant was sentenced to a total of 15 months’ imprisonment.  In 1987, he was sentenced to 12 years’ imprisonment for each of two counts of wounding with intent to do grievous bodily harm, contrary to section 17 of the Offences against the Person Ordinance, which sentences were ordered to be served concurrently.  

14.Ms Chiu, who appears for the respondent, has provided the court today in the oral hearing with the judgment of this court in the applicant’s applications in respect of both conviction and sentence [2] arising out of those convictions.  The applicant had used others to attack two targeted victims he chose to identify on two different occasions.  Of the sentences of 12 years’ imprisonment, this court said :

“ ...the sentences were appropriate and fitting for these offences committed by a man of 45 who has shown no remorse, has a criminal record and who, furthermore, instructed those who did the relevant wounding to make a good job of it. The effective term of imprisonment is, as Mr Stirling rightly contends, at the top of the bracket for this type of offence involving serious violence but, in our view, it is not to be faulted. Both victims were very fortunate that they were put at risk of death or permanent incapacity. The attacks were premeditated and vicious and they were carried out with lethal weapons. The public interest clearly requires that offenders who decide to make use of persons bad character with criminal records for violence to inflict really serious injury on those they call their enemies should be visited with condign punishment sufficient not only to achieve a substantial measure of retribution but also to protect the public by deterring others from committing this type of offence.”

15.This court went on to endorse the statement of the trial judge, Deputy High Court Judge Daniell, as to the applicant :

“ What you have done is thoroughly wicked and depraved. I regard you as a dangerous man and in my view the only safe course is to impose a sentence which will keep you out of the way for a long time.”

16.In 2000, the applicant was sentenced to 6 years’ imprisonment for attempted rape, contrary to section 118 of the Crimes Ordinance, Cap. 200. 

17.In the course of mitigation, in which the applicant’s assertion made in the video recorded interview that he was in possession of the pistol for the purpose of throwing it away was repeated, the judge informed counsel that not only did he find the explanation “extremely implausible” but also that he did not accept it.  Also, the judge reminded counsel that it was accepted in the Summary of Facts that the applicant was behaving suspiciously.  No application was made for a ‘Newton’ hearing.

18.In our judgment, the judge was entitled to reject the applicant’s wholly fanciful explanation.  It follows that, for purposes of sentencing, the judge was left with the fact that the applicant was in possession of a firearm and ammunition and that he was behaving suspiciously.  In the course of the hearing, we have sight of the photographs of the place where the applicant was arrested.  Although it was described in the Summary of Facts as underbrush it is clear that it was no more than knee-high grass and that it was at a place next to a pavement or walkway.  In all the circumstances, the judge was entitled to proceed on the basis that the applicant possessed the firearm and ammunition for a criminal purpose, albeit for a criminal purpose that was not known precisely.

19.As the judge acknowledged, at the time that the applicant was arrested the pistol was non-functioning.  Summary of Facts said of that issue, “the plunger was restrained from movement due to corrosion by rust and the pistol was non-functional.  After removal of the rust, the free movement of the plunger was restore(d).”  Clearly, the pistol was rendered functional without the need to replace any parts and only by simple cleaning.  It appears that it was with regard to the fact that it was non-functioning that the judge stipulated a starting point of 10 years’ imprisonment notwithstanding the fact that he had referred to the long-standing authorities that a sentence of 12 years’ imprisonment was appropriate, in the absence of mitigation which established that the “purpose of possession of the firearm was not to embark on a criminal enterprise with it.”

20.At our request we have viewed the pistol in court today.  It is clear that it is a primitive rudimentary weapon, albeit one that is capable of discharging a .45 mm cartridge.  It is of a distinctive “do-it-yourself” nature.  The respondent confirmed that the pistol was only capable of discharging one cartridge before it had to be reloaded.  Of the various authorities to which Mr McGowan referred to the court, the judgment of this court in HKSAR v Chan Tze Kin [3] has some relevance.  There, this court refused an application for leave to appeal, inter-alia, a sentence of 6 years’ imprisonment imposed in respect of possession of an ACP 0.45 calibre pistol and 6 rounds of ammunition after a plea of guilty.  The court noted, “The pistol was genuine although defective.  The defect is minor and required the replacement of a spring.  The ammunition was live and appropriate for the pistol.”

21.In our judgment, with great respect to the judge, insufficient regard was had to the rudimentary, home-made nature of the pistol.  Obviously, it was a weapon of a completely different nature from the ACP 0.45 calibre pistol with which this court was concerned in Chan Tze Kin.  In all the circumstances, in our judgment the appropriate starting point for sentence was 8 years’ imprisonment.  Affording the applicant the one-third discount from that starting point, the appropriate sentence is 5 years and 4 months’ imprisonment.

Conclusion

22.We allow the application for leave to appeal out of time against sentence and, treating the hearing of the application as the hearing of the appeal, we allow the appeal.  We quash the sentence of 6 years and 8 months’ imprisonment and in its place impose a sentence of 5 years and 4 months’ imprisonment.

Ms Samantha Chiu, SPP, of Department of Justice, for the respondent

Mr James H. M. McGowan instructed by Johnnie Yam, Jacky Lee & Co, assigned by Director of Legal Aid, for the applicant

[1] The Queen v Ho Chun [1990] 1HKCLR 86; The Queen v Au Yeung Wai Kwong (CACC 238/ 1994; unreported, 17 August 1994) and The Queen v Milhench [1996] 1 HKC 628.

[2] The Queen v Ng Wah Kan (CACC 475/1987; unreported, 23 February 1988).

[3] HKSAR v Chan Tze Kin (CACC 169/1997; unreported, 25 November 1997).