R. v. NG CHUN KEUNG

IN THE COURT OF APPEAL

1992, No. 262
(Criminal)

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JUDGMENT

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Macdougall, J.A.:

1. The applicant pleaded guilty before Leonard J. to one count of possession of a firearm, namely a 7.62 x 25 mm calibre self loading revolver, and three magazines containing 23 rounds of ammunition contrary to Section 13 of the Firearm and Ammunition Ordinance, Cap. 238, and one count of using a firearm with intent to resist lawful arrest contrary to Section 17(1) of the Ordinance. The judge sentenced him to nine years' imprisonment on the first count and to ten years on the second. He ordered that the latter sentence commence after the expiration of four years of the nine years sentence. The overall sentence was therefore one of 14 years' imprisonment. The applicant now seeks leave to appeal against both sentences.

2. The agreed facts were that at 4.15 p.m. on 2 April 1991, two police constables on foot patrol in Mody Road, Tsimshatsui, noticed three men whose clothing and furtive behaviour led one of the officers to suspect that they were illegal immigrants. When challenged and asked to produce their identity cards, one of the men said that they were overseas Chinese from the United States of America. On being asked where they were staying, the men replied that they were staying in the Peninsula Hotel. However, when asked for the numbers of their travel documents, they were unable to reply. While one of the officers was speaking to the men, his colleague used a beat radio to summon assistance. One of the men, the applicant, then ran off. He was pursued by one of the officers who soon caught up with him. A struggle ensued during which both men fell to the ground. When the other officer ran to his colleague's assistance, the applicant produced a pistol and, while both officers struggled with him, fired a shot. He was eventually overpowered and handcuffed with the assistance of other officers who arrived at the scene.

3. Two magazines loaded with ammunition were then found lying on the ground. A search of a briefcase that the applicant had been carrying revealed the presence of a third magazine loaded with ammunition. All of the ammunition was capable of being fired from the pistol. The applicant later admitted under caution that he knew that what he had done was wrong, that he had bought the pistol and ammunition in China and that the pistol had gone off accidentally after he had drawn it from the briefcase in an attempt to escape.

4. In passing sentence the judge stated that he was guided by the decision of this court in R. v. Ho Chun [1992] 1 HKLR 86, a case of possession of a firearm and ammunition without a licence. Silke, V.-P. delivering the judgment of the court on 15 November 1991 said at p.87:

"Here there is the aggravating feature of the fact that the gun had been fired.

This Court has stated that, after a plea of guilty, a proper sentence would be at least six years imprisonment for this type of offence. In the light of the spate of robberies which are now taking place in Hong Kong and in which the use of guns is involved trial judges could well consider an upward revision of that 'at least six years' guidelines. We would indicate that this Court would be unlikely to interfere with sentences of at least eight years' imprisonment. This of course relates to sentence after a plea."

5. Leonard J. went on to say that the increased level of sentence referred to in Ho Chun referred only to cases involving an unloaded firearm. He added that since the applicant had also been in possession of three magazines and 23 rounds of ammunition, the proper sentence on the first count was one of 9 years' imprisonment. As to the second count, he stated that the discharge of the firearm in a public place by a person resisting arrest was a grave offence for which the maximum sentence was one of life imprisonment. In fact, the maximum sentence for such an offence is 14 years' imprisonment. He also referred to the fact that the applicant has a bad criminal record. Indeed, it includes one conviction for robbery, eleven for burglary, three for theft, one for possession of an offensive weapon, two for possession of an instrument fit for an unlawful purpose, two for resisting arrest, and various other convictions relating to the unlawful taking of conveyances without authority and loitering.

6. We observe that this is the second occasion within a week in which it has come to our attention that a judge has sentenced an offender in accordance with the guidelines laid down in HO Chun in respect of an offence that was committed before judgment was delivered in that case. On both of these occasions neither counsel drew the judge's attention to the fact that he was proceeding in error. The guidelines actually applicable at the time of the commission of these offences were those laid down in A.G. v. Lai Shu-piu Application for Review No. 2 of 1985 (unreported) and expanded in A.G. v. WONG Kwai-pui Criminal Appeal 522 of 1989 (unreported).

7. In Lai Shu-piu this court said that the proper sentence on a plea of guilty for simple possession of a gun would be six years, and that where there is an intent to use the gun for an unlawful purpose something in excess of six years is appropriate. Plainly, the applicant had the firearm in his possession for an unlawful purpose. The fact that he was carrying a loaded pistol with three magazines and 23 rounds of ammunition in a public street leaves no doubt as to that. In Wong Kwai-pui Silke, V.-P. in delivering the judgment of the court said:

"It may well be that the courts from now on might wish to consider that, if a person is found in possession of a gun and the gun is loaded, that is an aggravating factor and one which might well lead to the enhancement of usual sentence."

8. However, bearing in mind that the judge wrongly applied the guidelines suggested in Ho Chun, we think that we should reduce the sentence on the first count to one of eight years' imprisonment.

9. As to the sentence of ten years on the second count, we are of the opinion that it was neither manifestly excessive nor wrong in principle. The mere possession of a firearm is one thing; the use of it in resisting lawful arrest is an entirely different matter. We do not accept the submission that was advanced to us today by Mr. Haynes on behalf of the applicant that the first count was absorbed by the more serious second count. These offences were separate and distinct and clearly called for consecutive sentences, with due regard being given to the totality principle. Notwithstanding the judge's erroneous observation concerning the maximum sentence provided by law for the offence referred to in the second count, we are not disposed to interfere with the sentence which he imposed. It was an entirely proper sentence.

10. In the light of a submission that Mr. Haynes made to us, we take the opportunity to state that what this court said in Ho Chun as to the unlikelihood of it interfering with sentences of at least eight years' imprisonment relates to the possession of a firearm without ammunition. Possession of a loaded firearm would attract a heavier sentence. Likewise would the possession of both an unloaded firearm and ammunition call for a more severe sentence than that for possession of an unloaded firearm alone.

11. For the reason we have given we grant the application and, treating it as the hearing of the appeal, allow the appeal, set aside the sentence of nine years on the first count and substitute for it one of eight years' imprisonment. In order to reflect the effect of that in the overall sentence, we substitute for the order made by the judge an order that the sentence of ten years' imprisonment on the second count do commence after the expiration of three years of the sentence on the first count. The overall sentence is therefore one of 13 years' imprisonment.