R. v. YEUNG HIU SHING

IN THE COURT OF APPEAL

1996, No. 339

(Criminal)

____________________

____________________

____________________

J U D G M E N T

____________________

Mayo JA giving the judgment of the Court:

1. The applicant pleaded guilty to being in possession of arms and ammunition without a licence and was sentenced to 8 years' imprisonment by Gall J. He now seeks leave to appeal against that sentence.

2. When this case first came before us it was adjourned so as to enable the applicant to receive legal representation.

3. The facts were simple. On the morning of 4 December 1995 the applicant was observed in Queen's Road East by two police officers to be acting suspiciously. They approached him and they then noticed that he had inside his jacket a pistol like object. The officers immediately seized it. The applicant admitted that it was a real pistol and that he had been intending to deliver it to someone. An examination undertaken by an expert in the Force Ballistics Identification Bureau revealed that the object was in fact a Chinese double barrelled converted pistol in .22" calibre loaded with two rounds of appropriate ammunition. It subsequently transpired that the applicant was an illegal immigrant.

4. In the plea of mitigation which was advanced by his counsel before Gall J reference was made to the poor financial circumstances of the applicant and the fact that he was offered a financial incentive which would assist in alleviating his financial difficulties if he agreed to lend his firearm to someone in Hong Kong and deliver it to him. He had succumbed to the temptation which had been proffered to him.

5. It appears from the reasons given by Gall J for passing the sentence he did that he placed reliance upon the principles referred to by a differently constituted Court of Appeal in R. v. Ho Chun (unreported) being Cri.App. No. 330/91 when a sentence of 8 years' imprisonment was imposed for this offence after a plea of guilty had been entered.

6. At the hearing of this application we were concerned about the level of sentences imposed in cases involving firearms. We requested counsel to assist us and adjourned the proceedings for that purpose.

7. Mr Donald has prepared a submission. We are indebted to him for the research he has undertaken on this subject. In a written skeleton argument he refers to 17 cases which have come before the court involving the possession and use of firearms and he has divided the cases into four categories.

1. Possession of firearms where the involvement of the accused is relatively minor.

2. Simple possession.

3. Possession in the course of a robbery and

4. Using or firing a firearm in the course of a robbery.

8. We agree with Mr Donald's analysis of the situation and that the present offence comes within the 2nd category he referred to.

9. The sentence which was imposed was in conformity with cases in this category. Although the sentence imposed in R. v. Milhench was only 41/2 years it was a most exceptional case and the judge adopted 12 years as his starting point and this starting point was not the subject of criticism by the Court of Appeal.

10. One of the difficulties which has been encountered is that the sentence imposed in Ho Chun of 8 years was passed before it became customary to grant discount of one third on guilty pleas. This might create the impression that the correct starting point should be somewhere in the region of 10 years. It is now however clear from the judgment in Milhench that this Court has accepted that 12 years is the correct starting point.

11. We are also indebted to Mr Saw for the prosecution for the research he has undertaken and for his comprehensive analysis of sentences which have been imposed in firearms cases. He has divided cases into three categories by reference to the different circumstances which are encountered.

12. His 1st category is for possession of arms and ammunition. This category embraces a wide range of different situations. However the cases referred to by Mr Saw are also entirely consistent with the proposition that even in simple cases of possession 12 years' imprisonment is an appropriate sentence after trial thus confirming that 8 years was a proper sentence after giving the usual discount for a guilty plea.

13. So far as the present case is concerned we are satisfied that 8 years was a proper sentence and this application is dismissed.