HKSAR v. ZHEN FUTING

CACC 509/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 509 OF 2003

(ON APPEAL FROM DCCC 828 OF 2003)

---------------------

----------------------

----------------------

J U D G M E N T

----------------------

Hon Stock JA (giving the judgment of the Court):

Introduction

1. This is an application for leave to appeal against sentence.

2. The applicant was charged in the District Court with five offences, two of possession of arms without a licence; two of possession of offensive weapons; and one of resisting police officers in the due execution of their duties.

3. The applicant pleaded not guilty but was convicted by HH Judge Chua on 26 November 20003. The facts upon which she found him guilty are conveniently reviewed in her Reasons for Verdict:

"3. Two police officers (PW1 and PW2) of Team 1, Regional Crime Unit at Kowloon West Headquarters kept observation on the front gate of 359 Ki Lung Street in Sham Shui Po. At 10.55 am, the defendant emerged. He looked around him nervously, then walked up the street. The officers followed from a distance. He made a circuit and then returned to the building. The officers had observed something protruding from his trousers band but hidden from sight under his upper garment. They radioed for instructions and were told to intercept him.

4. They quickly followed him into the building and intercepted him at the lst floor landing of the staircase. The defendant put up a struggle as he tried to escape. They pinned him to the ground and found a short metal pipe tucked into his trousers. One part of it was cloth-wrapped. PW1 arrested him for possession of an offensive weapon. As the defendant continued to struggle, the officers again forced him to the ground, pinned his arms back and handcuffed him.

5. A search produced from his rear trousers pocket a stun gun in the guise of a mobile phone. They seized this, arrested him and cautioned him. When PW1 asked what he was doing in the building, the defendant said he lived on the 6th floor. The officers waited till their team joined them before they went to the flat on the 6th floor. There they found three males and a female, the defendant's wife. All were clansmen from China visiting Hong Kong on two-way permits.

6. A search of the premises conducted in the defendant's presence produced another similar stun gun in a paper bag sitting on the refrigerator. 5 other similar metal pipes were hidden under the mattress. 2 of these had one end clamped together and cut to a point." (Appeal bundle pp 11-12).

The charges

4. The charges accordingly were:

(1) possession of arms without a licence, namely the stun gun, which was found upon his person on arrest, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap. 238;

(2) possession of an offensive weapon with intent to use the same for an unlawful purpose, contrary to section 17 of the Summary Offences Ordinance, Cap. 228; namely, the iron rod in his possession upon arrest;

(3) resisting the two police officers in the due execution of their duty, contrary to section 36(b) of the Offences against the Person Ordinance, Cap. 212;

(4) possession of arms without a licence, namely a stun gun, that is, the stun gun found in the premises on the 6th floor (again, section 13 of the Firearms and Ammunition Ordinance); and

(5) possession of offensive weapons, namely, the five iron rods found in the premises with intent to use them for an unlawful purpose.

The sentences

5. In respect of the possession of the stun guns (Charges 1 and 4), the judge sentenced the applicant to a term of five and a half years' imprisonment in respect of each, to run concurrently. She imposed a sentence of two years' imprisonment upon each of Charges 2 and 5 (possession of the iron rods) again to run concurrently with each other, and also concurrently with the five and a half year terms on Charges 1 and 4. Finally, she imposed a term of one-month imprisonment for resisting the police officers and ordered that to run consecutively to the rest; so that the total term of imprisonment was five years and seven months' imprisonment.

The interview

6. The applicant was interviewed after his arrest, on 27 June 2003. In that interview he said that he had first come to Hong Kong from the Mainland on 16 June 2003 with his wife in order to obtain employment, and that whilst here he purchased drugs, since he is a drug addict. He and two others, also involved in some way with drugs, discussed how to make money and the original idea was to trade in drugs. That idea fell away and instead was replaced by an idea to rob. The applicant returned to the Mainland after 16 June, where that idea was formed and he came back to Hong Kong on 21 June with one of the three conspirators who was carrying with him the two stun guns. The applicant was then asked to go to a betting centre in Yee Kuk Street which was to be the subject of surveillance with a view to robbery. One of the other men had brought the iron pipes to the premises which had been rented by the applicant on 24 June. He did not know, he said, who caused the pipes to be sharpened. At the time of his arrest he had gone downstairs with a view to ascertaining what the situation was and took the stun gun downstairs "for the purpose of defending" himself, he said.

7. It is clear, therefore, that the applicant came to Hong Kong with others, and armed with these various weapons, with a view to committing a robbery or robberies.

The judge's remarks

8. In sentencing the applicant, the judge said:

"I take a very serious view of mainlanders who meet up with people in Hong Kong and discuss a plan to smuggle into Hong Kong stun guns and metal pipes which are converted into weapons."

She said also that:

"As China relaxes for Mainland visitors to come to Hong Kong, one must be vigilant that it does not bring criminals like you who come in on two-way permits with intent to commit offences in Hong Kong.

There is no remorse on your part. You made wild allegations that required 10 officers to come into court to give evidence."

The grounds

9. There are several grounds of appeal which have been advanced by Mr Haynes with his usual vigour and conscientiousness:

(1) That the judge failed properly to assess the "extremely limited harmful potential" of these small battery powered stun guns which would, it is contended, cause no actual bodily harm, albeit that the effect was unpleasant.

(2) That the judge made inappropriate references to Mainland visitors and to hypothetical criminal activities that were, it is said, neither charged nor proved;

(3) That the fact that ten officers were required to attend court, a matter to which the judge referred in sentencing, was not relevant;

(4) That the judge failed to state a starting point, and failed to refer to any matters relevant to the charges made and proved against the applicant; and failed to recognise any factor in the applicant's favour;

(5) He contends that a distinction should have been drawn between the weapon found in the actual possession of the applicant upon his arrest and those found under a bed in his flat; and

(6) Mr Haynes contends that the sentences imposed in relation to the stun gun were by comparison with sentences passed in other cases of this kind manifestly excessive.

Analysis

10. It was not in our judgment inappropriate for the judge to make the reference she did to Mainland visitors, in the context in which they were made. The judge took the view that it was particularly serious for people to come to Hong Kong in order to commit crimes. With that we agree. As for the hypothetical criminal activities to which reference was made, the judge was fully entitled, indeed duty bound, to view the offences in their proper context, which was quite obviously a context in which robbery was intended to be committed.

11. In relation to the distinction which Mr Haynes says ought to have been made between the pipe in the applicant's actual possession and others at the flat and that for the possession of the offensive weapons the maximum sentence permitted by law should not have been imposed, we think there is little merit in this point since each one of the pipes was to be used in a robbery and it is that that makes the possession of these pipes and the way in which they were prepared with cloth handles and two tapered for use, particularly serious.

12. We note that the judge indeed failed to state the starting point. She should certainly have done so because it is unclear to us to what extent, the features which she stressed and to which we have made particular reference, were used in aggravation of the normal starting point.

13. In the event, it falls for us to consider whether the sentences imposed were manifestly excessive. It is suggested that no regard, or insufficient regard, was paid to sentencing guidelines which Mr Haynes, for the applicant, has extracted from two cases, in particular HKSAR v WONG Wing Wong CACC 214 of 2002 and HKSAR v LI Hung Kwan [2003] 1 HKLRD 204.

14. There are no guidelines set down by these cases. The case of LI Hung Kwan did no more than make reference to a series of decisions in which the appellants had been convicted or pleaded guilty to possession of a stun gun. So all we can discern from that case is the type of sentence which has, according to a variety of facts, been imposed in the past.

15. The closest is R v LAI Chi Fai, (Cr App No. 480 of 1995, unreported) where the applicant was in possession of a stun gun capable of discharging 4,800 volts and at the time of the arrest, he was with another man who was in possession of another imitation firearm. The applicant committed that particular offence whilst on bail in relation to another crime. A starting point of four years' imprisonment was taken.

16. In the round, the offences with which we are here dealing are more serious than those illustrated by the examples to which we have been taken. Here we find a gang planning a robbery with a series of weapons. Not only was there more than one stun gun, but there were no fewer than six other offensive weapons which we have been shown, each an iron rod deliberately prepared with cloth handles for use in assault, and two of which it should be noted had their ends sharpened. The gang had come from across the border in order to commit an offence or offences of this seriousness. The stun guns were in good working order each capable of producing more than 15,000 volts and of generating high voltage pulses continuously in three seconds duration. It was an admitted fact that they were capable of causing pain, muscular contractions, temporary incapacitation or disablement on human victims.

17. We see that the judge at first purportedly sentenced the applicant to five and a half years' imprisonment for each offence but, realising that the maximum for possession of offensive weapons did not permit her to do so, she changed those sentences to terms of two years' imprisonment leaving the five and a half years term intact in relation to the stun gun offences. We think that, in isolation, the five and a half year sentences imposed in relation to Charges 1 and 4, namely the stun gun offences, were manifestly excessive, but that the totality reached for all the offences is correct.

Conclusion

18. Judges must always sentence accurately for each particular offence and having done so, only then address the question of totality. Accordingly, we shall grant the applicant leave to appeal, treating this application as the appeal. We shall allow the appeal in relation to Charges 1 and 4 substituting for the terms of five and a half years' imprisonment in relation to each a term of four years and nine months' imprisonment. We have indicated that, in our opinion, the totality of five years and seven months' imprisonment was not manifestly excessive or wrong in principle. Accordingly, the order that we will make is that in relation to Charges 1 and 4 the sentence will be four years and nine months' imprisonment, the sentences to run concurrently with each other; the sentences of two years' imprisonment in relation to Charges 2 and 5 will remain unaltered and run concurrently with each other, but that nine months of those sentences will run consecutively to the terms imposed on Charges 1 and 4, making it a total of five years and six months' imprisonment. The term of one-month imprisonment in relation to Charge 3 will remain unaltered and run consecutively to the rest, leaving the total the same as that imposed by the District Court Judge, namely five years and seven months' imprisonment.