R. v. TANG WING SHING

IN THE COURT OF APPEAL

1995, No.34
(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 together CHAN Yuk-ming faced one charge of possessions of arms and ammunition without a licence. It was particularized in this court that he and Chan, between 1st October 1989 and 15th December 1989, in an apartment in Tokwawan, Kowloon, had in their possession a 45 calibre automatic pistol, two rounds of .45 calibre ammunition and three rounds of 7.62 mm calibre ammunition, without a licence. The police raided the premises and found that they were partitioned into four rooms numbered from 1201 to 1204. Police inquiries revealed that the applicant occupied Room 1203 and Chan occupied Room 1201. In Room 1203 a box containing the pistol and ammunition was found concealed in the ceiling. In the box was also found a photocopy of the applicant's identity card, his Hong Kong Re-entry Permit, his Certificate of Identity and other documents. The police found that the applicant had left for China on 11th December 1989, 3 days before the raid. He did not return until 24th April 1994 and was then arrested after his return via the Lo Wu border. He admitted that this had been given to him by Chan at about the end of October 1989 for temporary keeping. He said he agreed to keep them because he was afraid of Chan and that about two days later Chan found him and told him in Guangzhou the police had found the gun and not to return to Hong Kong. He said that he returned eventually to Hong Kong because he had lung disease and could not get a job in China.

2. Deputy Judge Bokhary when sentencing stated quite properly that the danger which a loaded gun of the sort involved poses was obvious. She was satisfied, according to the level of sentences that prevailed at the time of the offence, that the proper sentence to impose upon the applicant was six years.

3. In mitigation he says that he was, in a sense, the victim as he was threatened by the person who left the gun with him. He also says that he surrendered himself upon his return from China.

4. The trial judge was well aware of these facts. She followed the guideline, which was a perfectly clear one, applicable to offences of this kind committed in 1989. It indicated that the appropriate sentence was six years after plea. She was not prepared to give any further weight to the suggested mitigating factors and we cannot fault her for taking that attitude towards them. There is nothing to suggest that this sentence was in any way inappropriate or wrong in principle and the application for leave to appeal must therefore be refused.