R. v. NG CHI KIN

IN THE COURT OF APPEAL

1996, No. 343
(Criminal)

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J U D G M E N T

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Power, Ag. C.J. (giving the judgment of the Court):

1. The applicant faced one count of possession of ammunition without a licence. He was charged that between 22nd March 1990 and 3rd April 1990, at Flat 7, 4th Street, Section M, Fairview Park, Yuen Long, he had in his possession ammunition, namely eleven rounds of 7.62mm calibre ammunition, without a licence. He pleaded not guilty to that charge and was found guilty after trial before Judge Whaley and sentenced to imprisonment for five years. He originally appealed against both conviction and sentence but has abandoned his appeal against conviction and now pursues only his appeal against sentence.

2. The facts of the matter were simple. The ammunition were found in his home when the police executed a search. The trial judge made the following observations when sentencing:

".... I accept that these rounds of ammunition belonged to Chau Wai-hung and the defendant allowed Chau to leave them in his home. I do not accept, however, that the defendant only knew the following day that the contents of this package were bullets, as he suggested in his cautioned statement. It is, in my view, an irresistible inference that the defendant knew what they were at the time that Chau produced them and asked if he could leave them.

The salient background facts should be recalled, that both Chau Wai-hung and Ah Siu, who were both involved in this serious, large armed robbery on 6 April, had spent several nights with the defendant at his house towards the end of February and, again, further nights, odd nights, in the weeks thereafter. Indeed, they both visited the defendant at the end of March. The defendant and Chau Wai-hung were such close friends they were like brothers to each other."

The judge then went on to say:

"It seems clear from this that the defendant was not blind or naive to the character of this man Chau Wai-hung.

It is to my mind the only reasonable inference from all the evidence that the defendant knew, from the start, that Chau Wai-hung intended to use these bullets, in a firearm, for an unlawful purpose. It is difficult to imagine, on all the evidence what that unlawful purpose could have been, other than armed robbery. Be that as it may, certainly, as from 6 April, the defendant must have known what Chau's intentions in relation to these bullets were, because that was the day he learned that Chau and Ah Siu had both been wounded during this very serious armed robbery of security guards in Kowloon, in the course of which $2.2 million was stolen, and yet the defendant took no steps even then to bring these bullets to the attention of the authorities, or dispose of them.

It is clear on all the evidence that the defendant was playing an extremely dangerous and irresponsible game at this time in associating with these characters, with Chau Wai-hung and Ah Siu, and in taking custody of these bullets and later in holding on to them after the events of 6 April."

The judge went on, having considered all of the mitigating circumstances, to say:

"I have taken into account all the matters that have been placed before me, including all these matters concerning his personal circumstances. However, for the reasons I have indicated, I consider this to be an extremely serious offence and, in my view, I would be failing in my duty if I did not impose a proper sentence in all the circumstances of this case.

In all the circumstances, the sentence I impose is 5 years' imprisonment."

3. The applicant was storing 11 rounds of ammunition. There was no suggestion that they were being stored because of an oversight or because he wanted to keep a souvenir or out of curiosity. The rounds had been entrusted to him by a person of bad character and he continued to store them after he knew that that person had been involved in a very serious robbery offence in which a firearm was used. The applicant is not entitled to any credit for good character as he has in the past been involved in offences which have included violence and dishonesty. The facts reveal that he was clearly an associate of criminal elements.

4. Sentences in similar matters have been placed before us by Mr. Marash, who appears for the applicant, but we find these of no great assistance. Each case must depend upon its own facts and upon the feel of the case as gained by the trial court from those facts. We have no doubt that the judge had the proper feel of this case. The sentences in the cases cited to us were helpful only insofar as they indicated the seriousness with which the courts regard offences of this nature. We have given anxious consideration to all that has been said and have, of course, placed it in the context of the facts. Having done so, we are satisfied that the application must be refused. We find that the sentences were in no way either wrong in principle or too severe.