THE QUEEN v. LAW SHIN

IN THE COURT OF APPEAL

 

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JUDGMENT

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Li, J. A.:

1. The respondent was convicted, on his own plea, of possession of firearms without a licence and sentenced to 9 months' imprisonment.

2. On the 9th January, 1984 the respondent received a gunshot would on the front of his left thigh. This was a result of an emergency call to the police to the respondent's home in the evening on 9th January this year.

3. The respondent was taken to hospital. A surgical operation was performed. It revealed that a bullet entered the front of his upper thigh and was lodged in his left knee. The bullet recovered was a 0.38 special ammunition of the United States army issue.

4. The respondent told the police a false story saying that he just heard a bang and he was injured. Upon investigation, it was found that the firearm must have been discharged inside his trousers about 5 inches below his waist directing to the left of his thigh downwards. The injury could only be self-inflicted by accident.

5. After questioning in hospital the respondent revealed the truth. A friend of his asked him to keep the pistol. He agreed to do so and took the pistol home. His wife found out. There was a quarrel. The wife demanded that the pistol should be returned instantly to his friend. The respondent tucked the pistol into the waistband to take it back to his friend. The pistol was discharged by accident. Hence the injury.

6. The respondent is 36 years old and married. His parents in China rely on his support. He used to be a construction site worker earning about $5,000 per month. As a result of the injury, he can now perform light duties only. His income has been reduced to $3,000 per month. It took him sometime to recover. There is pain and stiffness of his left thigh and knee.

7. Medical evidence has been called. According to the doctor, the respondent has recovered well though it is difficult to tell at that stage whether some suffering would be permanent. There is a chance of good recovery albeit with some slight permanent disability in the thigh and knee.

8. The respondent has a past record not connected with the present offence. Between 1969 and 1973, he had two convictions for having carnal knowledge of a girl between 13 and 16 years and also for an offence of demanding money with menaces.

9. The trial judge in his reasons for sentence took into consideration all the medical evidence and the fact that the past record was not of the same nature. He also took into consideration the possibility of slight disability. Finally, he commented that cases of this kind were serious offences and normally would attract a sentence of 2 years and above. He thus imposed a sentence of 9 months' imprisonment.

10. Learned counsel for the applicant directed our attention to the case of The Queen v. WONG Ping-kwan, Crim. App. No. 1028 of 1983, and the case of The Queen v. CHAU Hing-chung, Crim. App. No. 1153 of 1983. It is sufficient to say that in the case of WONG Ping-kwan, this court said:

"	It was not suggested that there was evidence here that the applicant intended to actually use the guns (that was a gun robbery case). Had there been I would have thought that the matter would have been brought in a different court where the sentence could have been very much greater.
	On the bare facts of the case there is nothing whatsoever wrong in the sentence imposed. A total of five to six years after trial would be in no way inappropriate, four years after a plea is correct."

 

With this observation we agree. 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.

11. For this reason, the application for review is allowed. The sentence of 3 years is substituted for the sentence of 9 months.