HKSAR v. LEE CHUN KIT

HCMA1007/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1007 OF 2003

(ON APPEAL FROM KCCC12235 OF 2003)

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J U D G M E N T

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1. This is an appeal against sentence only.

2. The appellant, a 28 year old man, was convicted on his own plea of two offences of possession of a prohibited weapon, contrary to section 4 of the Weapons Ordinance, Cap. 217 ("the Ordinance"). In respect of each offence he was sentenced to two months' imprisonment. The sentences were ordered to run concurrently. That resulted in a totality of sentence of two months' imprisonment.

3. The facts of the offences were that the appellant was seen by police in the early hours in Tsim Sha Tsui sitting in a stationary motor vehicle. He was seen to be holding a baton in his hand and to place it in a storage compartment near the driver's seat. The police then went up to the appellant and searched both him and the vehicle.

4. They found the baton, which was a gravity operated steel extendable device, and a holster for it. They found also a flick knife. The baton was about 20 inches long when fully extended. The flick knife had a 21/2-inch blade. Both weapons were found in the same storage compartment between the front seats of the motor vehicle. The two weapons were separately charged under the Ordinance.

5. Mr Davies who appears for the appellant has two grounds of appeal. Firstly, he says that the sentences of imprisonment imposed are manifestly excessive. Secondly, he says that as a result of comments made by the magistrate during the sentencing process to the effect that he would not be imposing a sentence of imprisonment, the eventual imposition of such a sentence in respect of each charged offence gave rise to a justifiable sense of grievance on the part of the appellant, and that those sentences are, therefore, unjust.

6. As to the first complaint of the appellant that the sentences of imprisonment are manifestly excessive, 6Mr Davies relies on what it seems is the only previous judgment relating to an offence under the Ordinance. That case is HKSAR v. Wu Kim Wan, HCMA1141/2001. It also involved the possession by the offender of an extendable steel baton. On appeal, Jackson J took into account certain mitigation advanced by the appellant and concluded that the appropriate penalty was a fine. Accordingly, he set aside the sentence of two months' imprisonment imposed by the magistrate and substituted a fine of $2,500.

7. In that case it was accepted that the offender possessed the baton for self defence on his trips to China. He had been apparently robbed on the Mainland some years earlier. He had habitually brought the baton with him back to Hong Kong because he did not know its possession was unlawful. He had, it was accepted, purchased the baton in a shop in Hong Kong where it had been openly displayed for sale. The appellant had no previous convictions.

8. The present case, argues Mr Davies, falls broadly within the same factual circumstances : The present appellant was an amateur collector of weapons, he was of good character. He had purchased both the baton and the knife in Shenzhen and had brought them back to Hong Kong. He did not know their possession was prohibited by law, and once having learned this apparently disposed of the balance of his collection by, so I was told, throwing them out in the garbage.

9. I must say that I have considerable skepticism that a self described collector of weapons, even if an amateur, was ignorant of the possibly illegal nature of that activity. Further, I have greater skepticism that the appellant's possession of the baton and flick knife in the Tsim Sha Tsui nightclub district in the early hours of the morning, came about simply because he had forgotten he had left them in his car, having purchased them in Shenzhen previously.

10. At the time he was arrested he was clutching a bag of cannabis in his right hand (that matter is not the subject matter of any part of this appeal) and had been seen immediately before that putting the baton into the compartment next to the driver's seat where the flick knife was subsequently found by the police.

11. In my view the appellant's explanation for all of this to the effect that he was just concerning himself with storing away or repacking items he had forgotten about seems somewhat incongruous in all the circumstances.

12. I do not accept the present matter should have been regarded in the same light as the circumstances of the offender in Wu's case. The present appellant was in possession of not just the steel baton (which was what the appellant in Wu's case also possessed) but in addition a small bladed but professionally made flick knife. As the magistrate said both weapons were capable of inflicting serious injury. Moreover they were possessed by the appellant at the time he was first observed by police in a public place, namely the nightclub district of Tsim Sha Tsui in the early hours of the morning. He was at the same time in possession of cannabis.

13. On these facts, which in my view distinguish the present appellant's case from that of Wu Kim Wan, a short sentence of imprisonment could not be said to be manifestly excessive. It may be true in the present case that there was nothing to suggest the appellant intended ever to use these weapons. But in my view an "intent to use" forms no part of the offence.

14. The purpose of the legislation is to prevent such weapons entering the public domain in Hong Kong. The circumstances in which their possession potentially occurs no doubt are various. But the greater the risk those circumstances generate of the weapons falling into the wrong hands or being found in a public place than the more seriously will a court regard the offence of their possession. And the greater the likelihood a custodial sentence will be imposed.

15. This is consistent with the policy underlying section 53 of the Public Order Ordinance which makes it mandatory that a sentence of imprisonment be imposed should the offender be convicted of possession of an offensive weapon in a public place.

16. I will not speculate as to why the present appellant was not charged with a breach of the provisions of section 33, though I suspect that the appellant's possession of the weapons whilst in his private motor vehicle was instrumental in that decision, and I accept, as Mr Davies has urged before me, that he was not and should not be approached in terms of sentence on the basis that he could have been so charged. Nevertheless, it remains true to say that the offence of possession of weapons pursuant to section 4 of the Ordinance remains serious, and the greater the potential, in the circumstances of the case, as I have said, of that possession allowing the weapons to get into the public arena the more seriously will the courts regard the particular offence.

17. In the present case, in my view, a two-month sentence of imprisonment could not be said to be manifestly excessive.

18. I turn to the second ground of appeal.

19. Mr Davis is on stronger ground concerning his complaint of the magistrate initially telling the appellant he would not go to prison and then subsequently imposing a sentence of imprisonment. This position came about in this way.

20. On the first appearance before the magistrate on 1 September 2003, the following was said, as appears from the transcript provided for the purpose of this appeal :

"MR POON :	Yes, I am just afraid that the defendant might be incarcerated for ...
COURT :	Well, I'm not going to ...
MR POON :	...that, Sir.
COURT :	...incarcerate him.
MR POON :	Yes, Sir. Yes, much obliged.
COURT :	But I am considering a suspended sentence.
MR POON :	Yes. Sir, ...
COURT :	In respect of a flick knife, Mr Poon.
MR POON :	Sir, the problem is he is -- a section 4 is an excepted offence, Sir, in relation to ...
COURT :	Is it?
MR POON :	Yes. Unfortunately, Sir.
COURT :	Oh.
MR POON :	Sir, in which case, I ... (indistinct) the court to consider the alternative of ...
COURT :	Well, I won't impose a suspended sentence, then.
MR POON :	Yes, obliged, Sir. Much obliged.
COURT :	Consider Community Service. I have to say -- I'm not going to send him to prison, ...
MR POON :	Yes, Sir.
COURT :	... but he's -- and I'm not going to sentence him as though it was a section 33 case ...
MR POON :	Yes, Sir.
COURT :	... because he's not charged with section 33.
MR POON :	Yes, Sir.
COURT :	The prosecution could have charged a section 33, in which case, it would have been a compulsory custodial sentence.
MR POON :	Yes, Sir.
COURT :	Now, I would have thought that most people arrested in possession of a flick knife would be facing a section 33 charge. If the prosecution have taken a different attitude because of the background of the defendant, then, with great respect to the prosecution, they're wrong. You don't choose a charge on the basis of a defendant's background.
MR POON :	Yes, Sir.
COURT :	You choose a charge on the basis of the circumstances of the offence.
MR POON :	Yes, Sir.
COURT :	But, as it happens, they've chosen a particular charge and I am not going -- it doesn't carry a compulsory sentence of imprisonment.
MR POON :	Yes, Sir.
COURT :	And I am not going to, therefore, impose a sentence of imprisonment.
MR POON :	Yes, Sir.
COURT :	I would suspend one. This authority is -- yes, I would suspend one but I am not going to suspend. I am not going to impose a suspended sentence if it's an excepted offence. I can't.
MR POON :	Yes, Sir.
COURT :	But it's a case where I need to be looking at a serious approach and it seems to me that I ought to consider some Community Service."

21. It can be seen that the magistrate's initial reaction was to impose a suspended sentence of imprisonment. That, however, was impossible as the offence was an excepted offence pursuant to Schedule 3 of the Criminal Procedure Ordinance, Cap. 221.

22. The matter was then adjourned for a Community Service Report. The appellant was found to be unsuitable for community service as he had been a habitual user of cannabis. When the matter returned before the court two weeks later, the magistrate was in the quandary of having told the appellant repeatedly he would not imprison him, but having the forms of sentence other than imprisonment he considered suitable to reflect the seriousness of the offence unavailable to him.

23. That being so, he then imposed a sentence of two months' imprisonment. He said this at the time of sentence :

"... And, in the circumstances, it seems to be inevitable that I must impose a sentence of imprisonment. That sentence must recognise the nature of the offences, together with the matters that have been placed before me, in some detail, by Mr Poon on your behalf. I have been referred to the fact that you have, on various occasions, acted in a generous manner towards others. I recognise that fact. But it's not something that, in my judgment, can allow me to take any other course than that which I have already indicated.

It can allow me to keep the starting point for sentence down as well as, of course, your clear record. And whilst I have -- and, of course, you're entitled to a discount ... (indistinct) to reflect your plea of guilty. It seems to me that, taking all these matters into account, the starting point should be reduced from what might otherwise have been six months' to three months' imprisonment. And it's reduced from that position to two months' imprisonment to reflect your plea on Charges 2 and 3, concurrently."

24. In passing, it can perhaps be said that a starting point of sentence should be based on the nature and circumstances of the offence itself. Matters of mitigation personal to the defendant such as good character and any plea of guilty then operate to reduce that starting point to the level of the sentence imposed.

25. It seems to me that following the imposition of this sentence the appellant must have had a bona fide sense of injustice. He had been told by the magistrate a number of times before the matter was adjourned for the provision of a report as to his suitability for community service that he would not be imprisoned. Yet, when his case resumed before the magistrate, a sentence of imprisonment was in fact pronounced. It has been recognized for many years that if a court offers something in the nature of a promise, whether express or implied, that a particular course in sentencing will be adopted then a sense of injustice will be created if it is not : R. v. Gillam, (1980) 2 Cr. App. R. 267 and R. v. Moss (1983) 5 Cr. App. R. 209.

26. In HKSAR v. Chan Cheuk Ho, CACC145/2000, Keith JA (giving the judgment of the court) said :

"The truth of the matter is that it all depends on what the defendant has been led to expect, ...

'... if, as in Gillam, there is something in the nature of a promise, express or implied, that if a particular disposal is recommended it will be adopted, then a sentence of injustice will be created if it is not'."

27. These cases all dealt with situations where various reports as to a defendant's suitability for sentences falling short of imprisonment were sought and the defendant, although the report was favourable, was subsequently imprisoned, or at least dealt with more harshly than recommended in the report.

28. I think it true to say that the underlying evil criticized in the above cases is the creation in an offender's mind of a belief that he would not receive a sentence of imprisonment when subsequently he was then imprisoned. The sense of injustice which no doubt arises in the offender's mind comes from a sense that he has been (albeit unintentionally) misled by the court.

29. And, in my judgment, telling a defendant expressly that he would not be imprisoned, only to subsequently imprison him, is at least as serious a breach of this underlying principle as is sentencing a defendant to prison in the face of a report favourable to his receiving a non-custodial sentence.

30. On this ground the appellant's appeal against sentence must succeed. The sentence of imprisonment cannot stand. The remaining alternative sentence is that of a fine. I understand the appellant is well able to pay any fine imposed.

31. Accordingly, I order the sentence of imprisonment imposed for each charged offence be set aside and in substitution the appellant be fined $5,000 in respect of each such offence. That is a total fine of $10,000.