ATTORNEY GENERAL v. TAM KWOK CHUEN

Headnote: Sentence on plea for possession of arms and ammunition no other mitigating or aggravating circumstances: 6 years

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J U D G M E N T

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Silke, V.-P .:

1. Tam Kwok Chuen pleaded guilty before His Honour Judge Ryan (as he then was), sitting as a Deputy Judge of the High Court, to an offence under section 13 of the Firearms and Ammunition Ordinance - the particulars of which were that on 22nd March 1988 outside 206 Fuk Wing Street in Kowloon, he had in his possession one 32 calibre revolver and 23 rounds of .32 calibre ammunition without a licence.

2. He was sentenced to three years' imprisonment. The Attorney General, by leave granted on 1st September 1988, seeks to move this Court on Review that that sentence was manifestly inadequate or wrong in principle.

3. The background facts were very short. Police officers on that day had intercepted two men in Fuk Wing Street. One of them was the Respondent. He attempted to escape. There was a struggle, a handbag he was carrying dropped in the course of that struggle. When he was subdued the handbag was searched and the arms and ammunition were found in it. The gun was in good working order and the ammunition was live.

4. Having accepted those facts, considered the antecedents of the Respondent who had previous convictions relating to dishonesty the last being attempted burglary on 22nd July 1986 for which he was sentenced to 18 months imprisonment - and considering the mitigation placed before him by Mr. Ma who appeared for the Respondent both here and below, the judge said.

"I am of the view that given the circumstances of this case, a term of imprisonment of four years on a plea of not guilty would have-been justified. Although this accused was caught red-handed, he is nevertheless entitled to a reduction in the term of imprisonment on the basis of this plea of guilty to the judge. propose therefore to reduce the term that I could otherwise have imposed to one of 3 years' imprisonment. He will serve 3 years' imprisonment on the charge."

5. He had been referred to two authorities by Mr. Ma, One was R. v. Ng Kwok Ying, Criminal Appeal No.109 of 1986 (unreported) and another being Law Shin, Application for Review No.5 of 1984 (unreported).

6. It is incumbent upon the Attorney in proceedings of this nature - The Attorney General v. Lau Chiu Tak and Another [1984] H.K.L.R. 23 - to persuade the Court that the manifest inadequacy of the sentence is such that it is more manifestly inadequate than it would be manifestly excessive. As Sir Alan Huggins, Vice-President, said, giving the judgment of the five man Court:

"It follows from what we have just said that the test of manifest inadequacy is no different from the test of manifest excessiveness and that the same test must be applied whether the case happens to be an appeal brought by the appellant or a review at the instance of the Attorney Generals Nevertheless, we emphasize that this court will be much more easily persuaded that a sentence is manifestly excessive than that it is manifestly inadequate - not because the test is different but because there is a presumption in favorem libertatis which the Crown has to overcome."

7. Mr. Cross in his submissions has also drawn to our attention to a number of authorities. First Law Shin, which in turn referred R. v. Wong Ping Kwan, Criminal Appeal No.1028 of 1983. In Law Shin; the appellant had been asked to keep a pistol by a friend of his. 'He brought it home. His wife objected strongly and he was bringing it back to the friend when he accidentally shot himself and he was arrested in the street.

8. The Court adopted that which was said in Wong Ping-Kwan, where a total sentence of five or six years after trial was stated to be in no way inappropriate and that four years after plea was correct. It went on to says:

"The proper sentence on the plea of guilty for an offence of this nature should have been about 4 years. We take into consideration that this is an application for review. We feel that a sentence of 3 years' imprisonment is appropriate,"

9. That case was decided on 20th June 1984. On 27th July 1984 the maximum period of imprisonment permitted under section 13 was increased from 10 to 14 years'.

10. In Lai Shu Piu, Application for Review No.12 of 1985 (unreported), The Court had reason to reconsider the guidelines laid down in Wong Ping Kwan and adopted in Law Shin. The facts there were somewhat different but in delivering the judgment of the Court, Sir Alan Huggins said, having made reference to Law Shin:

"It is implicit that in a case where it was intended that the arms should be used for an unlawful purpose then a higher sentence would be appropriate. Since that case the Legislature has thought proper to increase the maximum sentence for this offence from ten years' to fourteen years.' imprisonment. It is clear therefore that the guideline which was laid down in the case of Wong Ping Kwan must be altered, and ere chink that the proper sentence on a plea of guilty for simple possession of a gun would be six years'. It follows that where there is an intent to use the gun for an unlawful purpose something in excess of six years is appropriate."

11. It is not suggested in this instant case that there was evidence of such intent.

12. In R. v. Ng Kwok Ying, Criminal Appeal No. 109 of 1986 (unreported), the Court was concerned with a similar offence. The circumstances the gun in - the deposit box of the wife case - were wholly exceptional'. The sentence is not indicative of sentencing policy.

   R. v. Cheung Muk Shing, Criminal Appeal No. 29 of 1986 (unreported), was a very much more serious case where the original sentence was one of four years' imprisonment, the trial judge stating that without mitigating circumstances he would have imposed sir years; My Lord Power, J,A., in delivering the judgment of the Court, said at page 7:

"Given the seriousness of this offence, we think that, without mitigating circumstances, it would have called for a sentence of imprisonment of 10 years."

The applicant had been in possession of a veritable armory and some of the guns had been used in the course of robbery. There were strong "mitigating circumstances" in that the applicant had given evidence for the Crown in connected trials. The sentence was not, altered despite a plea by the Crown that it was too heavy. The discount was appropriate given the nature of the applicant That was a case in the upper limits of possession offences.

13. In Attorney General v Li Kit Wai [1988] 2 H.K.L.R. 286, the Court considered Lai Shu Piu and adopted it. In that case, two guns were found - one in the flat where the Respondent lived and the second in his brother's flat. Both were fully loaded, While the facts different somewhat from those here nevertheless the sentencing principle was made clear in the words, of Cons, V. P., delivering the judgment of the Court where he said:

"The proper approach to offences of this 1cind was laid down by this Court in Attorney General v. Lai Shu Piu and Another where, after referring to previous guidelines which, for reasons which need not detain us, could no longed be appropriate the Court said :

'.... the proper sentence on a plea of guilty for simple possession of a gun would be six years.'

Unfortunately that authority was not drawn to the attention of the judge below. It follows, that in passing the sentences that he did, the judge erred in principle, and the sentences were manifestly inadequate."

14. None of these guideline decisions were brought to the attention of the trial judge here.

15. Mr. Ma, in his submission on behalf of the Respondent, has accepted that the sentence is inadequate but has urged upon us that it is not manifestly inadequate. He sought to draw our attention to cases in other jurisdictions relating to firearm offences it is quite clear from at least one of them Jeffries [1988] 9 Cr. App. R. (S). 497, that the level of sentences imposed in the English jurisdiction are in the "light of the authorities", Hong Kong authorities differ considerably from those in England in this respect. It was further suggested that, because sentences there were lower and that the sentences in Ng Kwok Ying and the individual sentences in R. v. Man Chuen Min, Criminal Appeal No.302 of 1986 (unreported) were also lower that those indicated as proper in Li Kit Wai, the Crown has not discharged the burden upon them.

16. With respect, we do not agree. The line of authorities set out above makes it quite clear that, as a general guideline, six years' after plea would be an appropriate sentence. We, respectfully, reiterate that.

17. There are no, other than plea, factors of unusual mitigation in this case. In our judgment, the trial judge erred in principle and the sentence was manifestly inadequate.

18. We think that the proper sentence is one of six years but, in the light of the normal practice on Review, we will allow a discount. We grant the Attorney's application, set aside the sentence of three years and substitute a sentence of five years' imprisonment.