R. v. SO MAN

IN THE COURT OF APPEAL

1993, No. 366
(Criminal)

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J U D G M E N T

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Mayo, J.A. (giving the judgment of the Court):

1. The applicant by a letter dated 28 July this year seeks leave to treat his abandonment of his application for leave to appeal against sentence as a nullity.

2. The applicant pleaded guilty to being in possession of arms and ammunition without a licence on 25 June 1993 and on 9 July 1993 he was sentenced by Deputy Judge Pang to six years' imprisonment.

3. The agreed facts were that the applicant and another man who were passengers in a taxi were stopped at a road block at the entrance to Pak Tam Chung Country Park on 13 December 1992. One of the police officers manning the road block asked the applicant to produce his identity card. When he was unable to do so he was told to get out of the taxi. A black bag which was in his possession was searched. A black automatic pistol and four rounds of ammunition were found in the bag.

4. Investigations undertaken by a ballistics expert disclosed that the mechanism of the gun was partially defective thus rendering the pistol to be very dangerous.

5. The applicant had entered Hong Kong illegally immediately prior to his arrest.

6. The explanation he gives for seeking to resurrect his application for leave to appeal against his sentence is that initially he did not have any faith in the Hong Kong legal system after he had been sentenced to prison for six years.

7. He had though subsequently studied law and now had confidence in the system and wished to apply to appeal against the sentence which had been imposed.

8. The problem which arises in this case is that when counsel for the applicant addressed the court in mitigation at his original trial he stated that the applicant was not aware of the fact that a gun had been in the bag. Clearly such knowledge was an essential ingredient of the offence. The trial judge did not obtain clarification as to whether this claim was being maintained.

9. It is therefore clear that if the applicant did not have this knowledge he was not guilty of this offence.

10. At our invitation the applicant sought leave to appeal against his conviction out of time. We agreed to this.

11. Having regard to the fact that the applicant has already served three years of his sentence and that the Crown do not seek an order for retrial we consider that the only satisfactory way which this matter could be resolved is to order that his conviction is quashed and to order his release.