HKSAR v. HU QUANWU

CACC 209 /2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 209 OF 2010

(ON APPEAL FROM HCCC 94 OF 2010)

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REASONS FOR JUDGMENT

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Hon Yeung JA (giving the Reasons for Judgment of the Court):

Introduction

1.  On 31 May 2011, we granted leave to the applicant (Hu Quanwu) to appeal against sentence. Treating his application as the appeal proper, we allowed his appeal and reduced his sentence from 8 years and 8 months to 8 years’ imprisonment. We indicated we would hand down our reasons in due course and this we now do.

The Facts

2.  On 14 November 2009, the applicant arrived in Hong Kong as a visitor via the Lo Wu Border and checked into Room 1009 of CASA Hotel in Yaumatei where a room was reserved in his name from 14^th to 18^th November 2009.

3.  Shortly after 5.30 p.m. on 18 November 2009, the police arrested the applicant on the ground floor of the Hotel and took him back to Room 1009 for a search. The police found the applicant’s traveling bag in the wardrobe, inside of which was a small black bag containing a silver-coloured pistol and a magazine loaded with three rounds of ammunition. The pistol was placed inside two plastic bags and then wrapped in a piece of Chinese newspaper dated 15 November 2009.

4.  Under caution, the applicant said that he was told to come to Hong Kong and “to bring something” by a countryman – Ah Zhou, and that he was promised a reward of $8,000. The applicant claimed that he only learnt that it was a pistol later.

5.  In subsequent police interviews, the applicant said that he was invited by Ah Zhou to go to Cambodia to work as a construction worker and that Ah Zhou had given him money to pay for a hotel room where they would meet before departing for Cambodia.

6.  The applicant claimed to have been contacted by a Mr Li on 17 November 2009 in Hong Kong and that at a subsequent meeting in a park in Temple Street, Li gave him a small black bag containing an article and told him to go straight back to the hotel. The applicant said he put the small black bag inside his travelling bag and only found out that it contained a pistol when he opened the bag at about 3.30 p.m. on 18 November 2009.

7.  The applicant suggested that when he was arrested by the police, he was on his way to telephone a fellow native to seek his advice as to how to handle the matter.

8.  According to the Forensic Firearms expert, the pistol was a homemade self loading pistol with no trace of firing. The magazine was capable of storing ammunition for discharge in the pistol and the three rounds of ammunition in the magazine were suitable for discharge in the homemade pistol. There was no dispute that the pistol and the three rounds of ammunition fell within the meaning of “firearm” and “ammunition” in the Firearms and Ammunition Ordinance.

The Charge and the Sentence

9.  On 2 June 2010, the applicant appeared before Beeson J in the High Court and pleaded guilty to the charge of possession of arms and ammunition without a licence.

10.  The judge adopted a starting point of 13 years’ imprisonment and reduced it by one-third to 8 years and 8 months on account of the guilty plea.

11.  The judge rejected the applicant’s explanation that he did not initially know there were a gun and ammunition in the black bag. The judge took the view that the firearm was probably brought to Hong Kong to be used in crimes to be committed by persons for whom it was being carried. The judge also pointed out that the firearm could be used more than once although it had not been fired.

12.  The judge, having taken into consideration that “this was a gun imported for what could only be a criminal purpose, a purpose that was thwarted, or delayed, by the police intercepting the (applicant)”, considered a deterrent sentence was called for as Hong Kong “has a ‘zero tolerance’ attitude to firearms”.

Grounds of Appeal

13.  In his grounds of appeal, which appeared to have been professionally prepared, the applicant put forwards a number of matters in support of his application.

14.  Relying on R v Ho Chun [1992] 1 HKCLR 86 and HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, the applicant suggested that the starting point should not exceed 12 years although he also pointed out that in AG v Lai Shu-piu (unreported CAAR 12/1985), Sir Alan Huggins did say that “the proper sentence on a plea of guilty for simple possession of a gun should be six years”.

15.  The applicant emphasized that he did not carry the arm and ammunition on his person and that they were properly stored and had not been used. He accepted that the purpose for the arm and ammunition could only be criminal, but claimed that he did not intend to use it and that what he told the police was true.

16.  The applicant complained that his sentence was heavier than sentences in other similar cases. He said that there was no evidence to support the judge’s finding that the gun was brought into Hong Kong. The applicant reiterated that he did not bring the gun and the ammunition to Hong Kong and he had no idea of their source as they were given to him in Hong Kong.

17.  The applicant emphasized that he had no previous criminal conviction and suggested that the sentence imposed on him was manifestly excessive.

18.  The applicant further told us in court of his family difficulties and asked for a reduction of sentence so that he could return to his home town earlier to take care of his aged mother and his young daughters.

Discussion

19.  Possession of arm and ammunition is viewed as an extremely serious offence in Hong Kong. In Attorney General v Li Kit-wai [1988] 2 HKLR 286, the Court of Appeal followed the approach laid down in AG v Lai Shu-piu (unreported CAAR 12 of 1985) and held that the proper sentence on a plea of guilty for simple possession of a gun would be six years.

20.  It is worthwhile to point out that in Li Kit-wai (supra), the defendant’s explanation, as accepted by the court, was that he had been asked by a friend to look after the guns while the friend returned to China and he expected the friend to come back in due course and retrieve the guns from him. The defendant had a clear record and there was no indication that the defendant knew or expected the guns would be used for crimes.

21.  In Lai Shu-piu (supra), Sir Alan Huggins, in giving the judgment of the Court of Appeal, having made reference to the six year sentence on a plea for “simple possession” went on to say that where there is intent to use the gun for an unlawful purpose something in excess of six years is appropriate.

22.  In R v Wong Kwai Pui (unreported CACC 522/1989), the Court of Appeal took the view that if a person is found in possession of a gun and the gun is loaded, that is an aggravating factor which might well lead to the enhancement of the usual sentence. Macdougall JA in The Queen v Ng Chun Keung (unreported CACC 262/1992) stated in no uncertain terms the following at page 6 of the judgment:

“…we take the opportunity to state that what this court said in Ho Chun(supra) as to the unlikelihood of it interfering with sentences of at least eight years’ imprisonment relates to the possession of a firearm without ammunition. Possession of a loaded firearm would attract a heavier sentence. Likewise would the possession of both an unloaded firearm and ammunition call for a more severe sentence than that for an unloaded firearm alone.”

23.  The applicant’s explanation that he did not initially know that it was a gun is palpably incredible. The applicant arrived in Hong Kong on 14 November 2009 and checked into a hotel. Four days later, a pistol and a magazine loaded with three rounds of ammunition were found in his traveling bag in a wardrobe of his hotel room. The bare assertion by the applicant that he did not know the nature of the gun at the initial stage was not believable and the judge was perfectly entitled to reject such explanation outright.

24.  The applicant accepted that the gun and ammunition must have been intended to be used in crimes. What the applicant did posed a potentially grave danger to the society as emphasized in HKSAR v Chan Chi-fun [2006] 1 HKLRD 128.

25.  There is an infinite variety of circumstances in which an offence of possession of arms and ammunition is committed. In our view, the circumstances in which the applicant possessed the pistol and the ammunition made it a very bad case of the type.

26.  There were the further aggravating factors identified by Macdougall JA in Ng Chun Keung (supra).

27.  The judge, in her reasons for sentence, clearly took into consideration that the firearm and ammunition were imported into Hong Kong. We agreed that if a gun “was brought into Hong Kong” for a criminal purpose, it would be an aggravating factor. However, the evidence was unclear on this issue, as conceded by Ms Rosa Lo for the respondent.  The applicant said he was told to come to Hong Kong and “to bring something”, but the gun was given to him by a Mr Li in a park in Temple Street. We were persuaded that the judge was wrong to have taken into account, as an aggravating factor, that the gun was brought into Hong Kong.

28.  The judge accepted that this was not the worst case of the type as the pistol was homemade and had not been fired or used in a crime in Hong Kong. The applicant did not have any criminal conviction in Hong Kong.

29.  The maximum sentence for the offence of possession of arms and ammunition without a licence is 14 years’ imprisonment. The starting point of 13 years adopted by the judge is close to the maximum.

30.  We also noted that Ng Chun Keung (supra) was a much more serious case on the facts. The defendant in that case and another were intercepted in the street and when they were unable to respond to questions by the police satisfactorily, the defendant ran off. When he was caught, he struggled with the officer, and then produced a pistol and fired a shot. The defendant pleaded guilty to a charge of possession of a revolver and three magazines containing 23 rounds of ammunition and a charge of using a firearm with intent to resist lawful arrest. On the basis that the defendant had pleaded guilty to both charges, the Court of Appeal sentenced him to 8 years’ imprisonment on the 1^st charge of possession of arm and ammunition, and 10 years’ imprisonment on the 2^nd charge of using a firearm with intent to resist lawful arrest with 3 years on the 1^st charge to run consecutively to the 2^nd charge, making a total sentence of 13 years’ imprisonment.

31.  The judge was right to take a serious view of the matter, but if we were to uphold the 13-year starting point that she had adopted, there would be very little room to maneuver in more serious cases of possession of arm and ammunition, such as those involving a large number of powerful arms and ammunitions, or when those arms and ammunitions had been fired or used in crimes, or when the defendant had a very bad criminal record, including previous offences of a similar nature.

32.  We noted what Stuart-Moore VP said in HKSAR v Chan Hoi Ngam [2000] 1HKC 618 at 625I: “…, and we would not have criticized 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.”

33.  We were persuaded that the starting point of 13 years’ imprisonment was manifestly excessive and that a 12-year starting point was adequate. The applicant pleaded guilty to the charge and was entitled to the usual one-third discount. The proper sentence should therefore be 8 years’ imprisonment.

34.  We therefore granted leave to the applicant to appeal against sentence, and reduced his sentence from 8 years and 8 months to 8 years’ imprisonment.