R. v. CHENG KONG NGAN

IN THE COURT OF APPEAL

1995, No. 4
(Criminal)

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J U D G M E N T

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Bokhary, J.A. (giving the judgment of the Court):

1. In July last year, a man by name of Hui was murdered. The present applicant made a witness statement to the police in connection with that murder.

2. In the course of interviewing him, the police asked him under caution about a certain firearm offence. He denied that offence. And it is not suggested that the denial was untrue. More to the point, he volunteered the admission that he was in possession of some other firearm, a 7.62 mm pistol, and eight rounds of ammunition for it.

3. The applicant then led the police to recover that pistol and such ammunition. Charged with possession of the same without a licence, he pleaded guilty at the earliest opportunity i.e. when he appeared before a Magistrate on October 26 last year. The Magistrate committed him to the High Court for sentence.

4. Sentencing took place before Deputy Judge Wesley Wong in the High Court on December 13 last year.

5. In the course of his speech in mitigation, defence counsel said that the applicant had been keeping the pistol and the ammunition for the murdered man, Mr Hui. These are the words used by defence counsel:-

" My Lord, in terms of the circumstances leading to the commission of the offence, sometime about 1983, 1984, he was introduced to the person who's named in the summary of facts HUI Hau-yee. That introduction, my Lord, came through a relative of the defendant, and the common bond was that they came from the same clan and the same village. My Lord, in the succeeding years that person HUI proved to be kind to the defendant in the sense that he helped him financially and he helped his family.

My Lord, sometime about 1988 HUI was going to China on business, and at that stage he asked the defendant to keep the weapon for him. My Lord, because of a misguided sense of loyalty and because he felt that he was indebted to HUI, he agreed to the suggestion. The weapon was originally stored in an industrial building in Tsuen Wan, and then approximately 12 months ago it was taken from there, and it was placed in the location which is named in the charge sheet."

6. None of that was disputed. The location named in the indictment were certain shop premises in Tsuen Wan. After defence counsel had spoken, the applicant's 18-year old daughter addressed the judge asking for leniency for her father.

7. The judge passed a sentence of seven years' imprisonment. This is what he said in so doing:-

" Defendant, stand up. Your counsel has said all that can be said on your behalf. I have taken into consideration all that he had said and what your daughter said on your behalf. Nevertheless, possession of firearm is a serious offence, in particular crimes concerning the use of firearm have been on the rise, and therefore a deterrent sentence has to be imposed.

So I take a starting point of 12 years, and I give you a one-third discount. And on top of that I will take into consideration the fact that the weapon had not been used and that it was not in your immediate custody, so I give you a further year's reduction. So you'll go to prison for 7 years."

8. The applicant is a family man. It cannot be said that he has never been in trouble before. In 1982 he was fined HK$500 for assault occasioning actual bodily harm and ordered to pay HK$500 compensation to his victim. In 1984 he was fined HK$400 for gambling in a gambling establishment. In 1994 he was fined HK$500 for another instance of such gambling. What can be said is that he has never been in this sort of trouble before.

9. Plainly, the strongest element of mitigation by far is the fact that the information about this pistol and these rounds of ammunition was volunteered to the police by the applicant. Mr Bruce for the prosecution tell us: that the police would not have known of the pistol or ammunition if the applicant had not volunteered such information; and that the prosecution accepts that the applicant's guilty plea was a genuinely and deeply remorseful one. Indeed, Mr Bruce went so far as to concede that the judge proceeded almost from the outset on the wrong footing. We feel bound to agree.

10. The judge's concern about the use of firearms is of course well-founded. But this was a very special case. And unfortunately the judge lost sight of that. He wholly overlooked the strongest element of mitigation by far: which was the fact that the information about the pistol and ammunition had been volunteered by the applicant to the police who would not otherwise have known of the same.

11. When everything which should have been taken into account by the judge is taken into account, the right sentence in our opinion is a term of three years' imprisonment rather than one of seven years.

12. Treating the application as the appeal itself, we allow the appeal to reduce the sentence from seven years' imprisonment to three years' imprisonment.