R. v. HO SZE CHING

1996, No. 588

(Criminal)

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H E A D N O T E

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Sentencing - arms and ammunition - practical and realistic approach to question of whether a case is of the worst type.

IN THE COURT OF APPEAL

1996, No. 588

(Criminal)

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J U D G M E N T

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Bokhary JA:

1. This is an application for leave to appeal against sentence.

2. The applicant is a man aged 20. He faced one count. It was of possession of arms and ammunition without a licence, contrary to s. 13 of the Firearms and Ammunition Ordinance, Cap. 238.

3. It was on May 3 last year in a hotel room in Yaumatei that the applicant was found by the police in possession of the arms and ammunition in question.

4. Those arms and ammunition, quoting from the particulars of offence, consisted of:

"one .22" calibre converted starting pistol, fourteen rounds of converted .22" calibre ammunition, an electrically fired pistol of Chinese origin and two five shot cylinders, each with three loaded chambers."

5. On October 1 last year, the applicant appeared before Deputy Judge Wesley Wong in the High Court and pleaded guilty.

6. At the applicant's then counsel's request, sentencing was put back to the following day.

7. Taking a starting point of 14 years' imprisonment, the judge gave the applicant a discount of five years and therefore sentenced him to nine years' imprisonment.

8. In passing sentence on the applicant, this is what the judge said to him:

"You are in possession of two pistols and a fair amount of ammunitions. Surely you don't keep these just to impress your girlfriend. You are well aware that these arms and ammunitions would be used to commit crimes. It is fortunate that police had you arrested before these firearms were being used."

Possession of firearms and ammunition is an extremely serious offence. People who commit this sort of offence do not expect leniency from courts.

Your counsel has suggested that I should postpone sentence until police see you. I do not agree. I will sentence you on the facts of the case. And if you can actually assist the police, you will have other venues to have your sentence cut.

For possession of one single firearm, the usual starting point is twelve years. But in this case there are other aggravating factors, in that there is more than one pistol and quite a sizeable amount of ammunition. So I adopt the starting point of fourteen years. In view of your plea, I give you the maximum discount and sentence you to nine years' imprisonment."

9. The grounds of appeal against sentence which have been lodged are contained in six numbered paragraphs.

10. Examining them, it can be seen that the first four paragraphs all go to the same ground of appeal. Those four paragraphs read:

"1. In passing sentence the Learned Judge adopted a starting point of 14 years imprisonment and, did not at the same time state that he was aware that the maximum term for a single offence of this nature (see Section 13(2) of the Firearms and Ammunition Ordinance) and the limit of the jurisdiction; was '14 years.

2. There is no record of the Crown or the Defence explicitly drawing the attention of the Court to the maximum term.

3. It is submitted that if this limitation upon the jurisdiction of the Court had been drawn explicitly to the attention of the Court then the Court could not have adopted 14 years as a starting point.

4. It is submitted that the starting point should have been less than 14 years because, on any view of the facts, this was not the worst case of its kind."

11. The second ground is contained in paragraph 5 which reads:

"It is further submitted that apart from the plea of 'guilty' there was mitigation in that the Appellant was 20 years old at the time of sentence (19 at the date of the offence)."

12. Finally, there is contained in paragraph 6 a third ground which is a combination of the two preceding ones. Paragraph 6 reads:

"In these circumstances, by reason of the maximum term imposed by law and by reason of the youth of the Appellant the sentence imposed was wrong in principle and manifestly excessive."

13. For the prosecution, Mr McWalters rightly identified the question for us as whether or not the present case comes within the broad band of the worst type of case. He drew our attention to the decision of this Court in Attorney General v. Dominic Cheung Kai-man, [1987] HKLR 788 at p. 793 where Cons VP, delivering the judgment of the court, said that it is "a xiomatic that maximum sentences are reserved for the worst possible example of the offence concerned", and then went on to quote what Lawton LJ said in R v. Ambler [1976] Crim LR 266 at p. 267, which was this:

"... it is to be borne in mind that when judges are asking themselves whether they should pass the maximum sentence, they should not use their imaginations to conjure up unlikely worst possible kinds of case. What they should consider is the worst type of offence which comes before the court and ask themselves whether the particular case they are dealing with comes within the broad band of that type"

14. Mr McWalters also rightly and helpfully drew our attention to other sections in the Firearms and Ammunition Ordinance. He drew our attention, for example, to section 16 which reads:

"1. A person commits an offence who has in his possession any arms or ammunition with intent by means thereof to endanger life or to enable another person by means thereof to endanger life.

2. A person who commits an offence under sub-section (1) is liable on conviction on indictment to imprisonment for life."

15. One notes the specific intent required there. And Mr McWalters rightly pointed out that no such specific intent is required under section 13, being the section under which this applicant has been convicted. So it can be said that if someone was acting as armourer to a gang of robbers, the section under which he would be charged is section 16. Whilst it is possible to imagine all sorts of sophisticated weaponry with which he might arm such a gang, realistically speaking, if he provided it with say half a dozen pistols or revolvers of service calibre, he would probably find himself within the broad band of the worst type of section 16 case.

16. What about the present case? A way of testing it is this. One of the great dangers about weapons possessed even by someone without specific intent is that they will fall into the hands of someone who will have such intent. So supposing somebody had tried to arm a gang with the sort of weapons possessed by this applicant, would that mean a case of the worst type under section 16? From what we have just said, the answer must be "no". So this is not the worst type of section 13 case either.

17. It is not wise to try to define what is the worst type of case of this kind. Nor is a hearing of this kind to be turned into a symposium on firearms. It could be said that the most dangerous firearms are those which are fully automatic, of high capacity and of powerful calibre with great range and penetration: so that more shots are apt to be fired and stray shots can kill or injure passers-by within a greater circumference. One could go on like that.

18. It is always possible to imagine something worse than the case before the court in any given instance. But that is not the thing to do. The essential things to do are: be practical; relate each case to reality; and remember that worst cases fall within a broad band.

19. There is no playing down the seriousness of the offence committed by this applicant. The arms and ammunition which he possessed, while not of the most dangerous type, are certainly lethal. Also, it is not in his favour that he did not merely possess them at home but had actually taken them to a hotel room, obviously having carried them through the streets.

20. Therefore, although not of the worst type under section 13, the applicant's offence is still a very serious section 13 offence.

21. Giving the best consideration we can to all the arguments urged before us, we have come to the conclusion that what we ought to do is to treat this hearing as that of the appeal itself and allow the appeal to the extent of reducing the applicant's sentence from nine to 6½ years' imprisonment. We do that by taking a starting point of 10 rather than 14 years as being appropriate in the present case, and then giving what we consider the proper discount in all the circumstances. The appeal against sentence is allowed to that extent accordingly. We thank both counsel for their assistance to us.