CACC000609/1996
Criminal Appeal No. 609 of 1996
Headnote
Criminal law - Sentencing - Unlicensed possession of air rifles and air pistols c/s 13(1) Firearms and Ammunition Ordinance (Cap 238) - Powerful mitigating circumstances - Sentence of 18 months reduced to 10 months - Court declined to give guidance on starting point in the absence of evidence of prevalence, licensing policy, mischief aimed at and other relevant matters.
IN THE COURT OF APPEAL
1996, No. 609
(Criminal)
BETWEEN
THE QUEEN
AND
LEUNG SHIU-LUN
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Coram: Hon Nazareth V-P, Bokhary and Liu JJA in Court
Date of Hearing: 4 March 1997
Date of Delivery of Judgment: 12 March 1997
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JUDGMENT
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Nazareth V-P (giving the judgment of the Court):
1. On 13th September 1996 the applicant, Leung Shiu-lun, was convicted by Deputy Judge Richard Day in the District Court on his own plea of guilty for possession of firearms without a licence, contrary to s.13(1) of the Firearms and Ammunition Ordinance (Cap. 238). On 4th October 1996, after a probation report which contained much helpful information in his favour was obtained, he was sentenced to 18 months imprisonment. He now seeks leave to appeal against that sentence.
2. The facts are quite straightforward and can be taken from the agreed amended Summary of Facts. On 16th November 1995, armed with a search warrant, the police went to the applicant's brother's flat in Block C, Yuen Sun Garden, Yuen Long, New Territories to search for unlicensed firearms and ammunition. They found three are rifles, three air pistols, one bag of white plastic pellets and three boxes of metal pellets. These actually belonged to the applicant who formerly lived with his brother, but who had some months before moved out to live with his girlfriend, leaving those items behind.
3. The air rifles and pistols were examined by a police firearms expert who found the following:
(1)
One Crosman Model 2100. 177 calibre pneumatic pump-up air rifle to have a maximum measured muzzle energy of 12.84 joules;
(2)
One Crosman Model 782. 177 calibre CO2 air rifle to have a maximum measured muzzle energy of 6.03 joules;
(3)
One Daisy Model 1700. 177 calibre CO2 air pistol to have a maximum measured muzzle energy of 4.10 joules; and
(4)
One Daisy Model 93. 177 calibre CO2 air pistol to have a maximum measured muzzle energy of 2.30 joules.
4. The significance of the muzzle energy lies in the definition of "arms" in s.2(1) of the Firearms and Ammunition Ordinance which includes by para. (b):
"an air rifle, air gun or air pistol from which any shot, bullet or missile can be discharged with a muzzle energy greater than 2 joules."
5. Section 13 of the Ordinance provides that possession of any arms without a licence is an offence liable on conviction on indictment to a fine of $100,000 and imprisonment for 14 years.
6. Returning to the facts, the applicant's brother was charged with possession without a licence but about 10 days before his trial, his legal representatives informed the prosecution that the applicant was the real owner. Shortly thereafter, the applicant surrendered to the police and under caution frankly admitted the offence, stating that he had bought or otherwise acquired the air guns between October 1993 and March 1995, paying between $700 and $1,700 for each.
7. For the applicant, Mr Andrew Macrae, who did not appear at the trial, takes the single ground raised in the perfected grounds of appeal, that the starting point of 2 1/2 years imprisonment with the resulting sentence of 18 months after the plea of guilty was manifestly excessive and/or wrong in principle for the following reasons:
(1)
that there was no suggestion of any criminal enterprise associated with the firearms or the applicant's possession thereof;
(2)
the applicant had no criminal motive for his possession of the firearms;
(3)
the applicant surrendered to the police in order to accept responsibility for the offence in place of his brother;
(4)
the applicant fully cooperated thereafter by leading the police to the shops where he had obtained the firearms, making five cautioned statements admitting the offence, and pleading guilty; and
(5)
the applicant had a clear record and a good probation report.
8. All those five reasons are factually correct, are not disputed and were before the Deputy Judge. Indeed, one might add in amplification of the last, that the applicant is about 29 years of age, a conscientious, reliable and hardworking employee, of sober habits and no vices; and to use Mr Macrae's own words a decent sort of person, with an unblemished record, who would not trouble the courts again.
9. The difficulty the Deputy Judge faced was in identifying a starting point. Neither the Deputy Judge nor counsel before him (or before us for that matter) have been able to find any tariff guidelines or even a decided case of assistance. The Deputy Judge dealt with the matter in the following passages of his reasons for sentence:
"The authorities suggest a sentence of six to eight years' imprisonment for this offence, Attorney General and Li Kit-wai, Application for Review, No. 4 of 1988, and R v Ho Chun (1992) 1 HKCLR 86 , but they tend to be dealing with weapons of a very different character to those in this case. Mr Leung's weapons were air rifles and air pistols, not 25mm revolvers, and rather different considerations must apply. Neither counsel have been able to refer me to a High Court or Court of Appeal case dealing with air rifles. I note that in a District Court case (741/94) His Honour Judge Whaley thought a fine was appropriate when dealing with an air rifle of muzzle energy of 7.047 joules, and more recently (DCC561/95) His Honour Judge Longley sentenced a defendant to 20 months' imprisonment for possession of an air rifle of muzzle energy of 8.40 joules. In the latter case the defendant was being investigated for an allegation of theft when the gun was found in the boot of his car. He pleaded guilty and had previous although no similar, convictions.
The requirement for a licence only comes in when the muzzle energy of the gun exceeds 2 joules. One of these guns was barely over that limit, at 2.3 joules but the others were rather more powerful at 4.1, 6.03 and 12.84 joules. These are serious matters. Whilst the defendant claims to have had them for harmless pursuits, the courts have a duty to ensure that weapons such as these do not fall into the wrong hands. Three of these guns could have inflicted serious harm and all four could readily be used in more serious crime. Counsel reminds me that the guns will only discharge one round at a time and are thus unlikely to be used, say, to rob a bank. While that may be true it ignores the fact that most robberies are committed by criminals brandishing weapons rather than using them. I do not suggest that this defendant intended to use the guns for robbery, but they could certainly be so used if they fell into the wrong hands.
Despite what he may say about being naive as to the requirements of the law, Mr Leung must have known very well that in possessing these weapons he was committing a serious offence, whether or not he bought them openly and whether or not he chose to use them to shoot at targets or to play war games with his friends. I say this because he faced similar charges in 1991. He was one of three defendants then and the charges against him were dropped when a co-accused pleaded guilty. By that time, of course he had been arrested, presumably interviewed by the police, appeared before a Magistrate and finally in the District Court. He is entitled to be treated as a man with a clear record, but what he cannot now say is that he did not know the seriousness of what he was doing. He must have done so and he nevertheless chose to take the risk that he would not be caught, and not, I notice, with one weapon, but four.
There do not appear to any guideline cases dealing with this standard of weapon. For my part I would respectfully agree with His Honour Judge Longley and would have thought a starting point of two and a half years' imprisonment would reflect the dangers I have referred to whilst preserving a real distinction between air rifles and guns of a heavier calibre. He has pleaded guilty and has a clear record. To reflect this I will reduce the sentence to 18 months' imprisonment."
10. The Deputy Judge was plainly right in drawing a distinction between sentences of 6 to 8 years imprisonment for possession of unlicensed firearms as opposed to air rifles which he placed much lower down in the range of sentences he considered applicable. Not only have such sentences to cater for a whole range of circumstances, but arms themselves as included in the definition in s.2(1) embrace not only firearms and ammunition in the ordinary sense of those terms, but a whole range of other items included within the definition, ranging from firearms to stun guns, instruments discharging gas or chemicals, weapons for the discharge of noxious liquids, gas, etc (including an aerosol containing noxious liquid etc not in general trade or domestic use), harpoons and so forth. It seems to us implicit in this wide range of items with their varying harmful effects that consonant similarly varying sentences are called for. Clearly, therefore, the Deputy Judge was right in rejecting the usual level of sentences for unlicensed possession of firearms.
11. The circumstances of the District Court cases (741/94 and 561/95) were not brought to our attention, but they illustrate the range of sentences that might be appropriate to particular circumstances.
12. We have found considerable difficulty in addressing the starting point given the absence of any evidence of the prevalence of offences of unlicensed possession of air guns, the licensing regime (in particular whether licences are readily issued, whether licensees are screened and e.g. conditions of safe storage imposed, whether dealers in air guns are licensed), the evil aimed at (whether danger to life and limb particularly of children playing with such items, the use thereof as imitation firearms, or whatever), and so forth.
13. It should be mentioned here that Mr Macrae stated that air guns were freely available in toy shops where they could be seen on display. Mr Albert Wong for the Crown did not accept that, stating that he knew of a case where an importer or dealer had been prosecuted. And that was where this aspect of the matter was unhelpfully left.
14. The inclusion of air guns by reference to muzzle energy in excess of 2 joules, tends to suggest that the mischief aimed at is the danger to life and limb. However, with reference to that, the Deputy Judge seems to have taken into consideration the risk of the air guns in question falling into the hands of criminals and being used for robberies, as the passages quoted from his reasons show.
15. In the foregoing unclear and somewhat confused situation, what is uncertain must be resolved in favour of the applicant; particularly as it all seems to have been well within the ability of the prosecution to ascertain. In these circumstances, and particularly given the many and powerful mitigating factors, without seeking to establish any general starting point for such offences (which will have to await an occasion when the court is afforded all the relevant information), we think that the starting point adopted by the Deputy Judge was too high. We think a starting point of 15 months would have been more appropriate. We accordingly grant leave to appeal and treating the application as the appeal, we allow it, set aside the sentence of 18 months and allowing a discount of a third for the plea of guilty, substitute a sentence of 10 months.
(G.P. Nazareth)
(K. Bokhary)
(B. Liu)
Vice President
Justice of Appeal
Justice of Appeal
Representation:
Mr Andrew Macrae (M/s Tsang, Chan & Woo) for the Applicant
Mr Albert Wong (Crown Prosecutor) for Crown/Respondent