HKSAR v. HUNG CHUN KIT

CACC 579/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 579 OF 1998

(ON APPEAL FROM DCCC 684/1998)

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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 was convicted of being in possession of arms without a licence, contrary to s.13 of the Firearms and Ammunition Ordinance, Cap. 238 after a trial in the District Court before District Judge Davies. He was sentenced to 2 years imprisonment. He now seeks leave to appeal against the sentence which was imposed out of time.

2. His application was only a short period out of time. The reason he gave for not lodging the application timeously was that his family had been assisting him in the matter but had been unable to contact him as he had been transferred to another penal institution. This is not a satisfactory explanation to justify the delay. However we propose considering the application on its merits.

3. The facts of the case were very simple. While the police were investigating another case they found a stun gun. After making various inquiries the officers attended at the applicant's address and asked him if he had lent the stun gun to a man called Cheng. He admitted that he had. He confirmed this in a post-recorded statement.

4. The fact that he had lent the stun gun to Cheng clearly indicated that he had himself been in possession of it. The Judge was satisfied that by virtue of s.2(4) of the Ordinance the article should not be excluded from the definition of a firearm simply because it was defective or out of repair.

5. No grounds have been advanced in the written application made by the applicant in respect of the sentence which was imposed.

6. However, before us, he said that at the time of his arrest he had had a good job. He had bought the stun gun in China and when he brought it back to the Hong Kong Special Administrative Region, he had not realised that the possession of a stun gun was illegal. He said that his reason for having the stun gun was to protect his wife who had been pregnant at the time. There were a group of drug addicts near his residence who would at times harass women. Hence the justification for the stun gun. He also said that at the relevant time the weapon was not in working order. This was apparent from the evidence which is available at the trial.

7. The applicant went on to say that his wife has now had a son. As a result of his custody in prison, he is unable to look after her. She has taken dangerous drugs to relieve her stress and has now been charged with an offence in that connection. He felt that if she was to receive a custodial sentence there would be no one to look after their son. In that connection he can rest assured that in the unhappy event of his wife being detained arrangements would be made by the Director of Social Welfare to look after the child.

8. The applicant also referred us to another case of a similar nature where the defendant was sentenced to 1 year's imprisonment. It has to be appreciated that every case is different and little assistance can be derived from a comparison of cases.

9. While we have sympathy for the situation the applicant's family now finds itself in, none of the reasons advanced by the applicant would justify us in reducing the sentence which was imposed.

10. The sentence which was imposed was an entirely appropriate sentence and this application for leave is dismissed.