AU YEUNG WAI-KWONG v. R.

IN THE COURT OF APPEAL

1994, No. 238
(Criminal)

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J U D G M E N T

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Kaplan J.

1. On 5th May 1994, on his plea of guilty to possession of a firearm and ammunition without a licence, this Appellant was sentenced to 8 years' imprisonment by Stuart-Moore J. He appeals against his sentence.

2. At about 9.15 p.m. on 12th June 1993, he was noticed by police officers in the lift lobby of a building in Nathan Road. The police officers formed the view that the Appellant was carrying a shoulder bag in an unusual manner. They stopped him and asked to look inside the bag.

3. Upon inspection of the contents, some objects were found to be wrapped in newspaper. What was revealed was a 7.62 mm Russian military TT32 pistol with magazine and 7 rounds of 7.62 x 25 mm ammunition suitable for use in that pistol. At the scene, the Appellant immediately said that he bought the pistol for self-protection from a loan shark.

4. A test of the pistol by a ballistics expert revealed that its condition was poor and it would frequently jam after firing only 1 round. However, it was capable of discharging shots.

5. The Appellant is 32 years of age, having been born in China and has been in Hong Kong since 1987. In that year, he was convicted on 5 occasions of offences relating to massage establishments and vice establishments. On the last occasion, he was sent to prison for 6 months. His only other conviction was in 1989 for possession of dangerous drugs for which he was fined $1,000.00.

6. The explanation that he placed before the judge was one that he gave to the police at the earliest opportunity. He has never contested this matter. He said the reason why he got involved with loan sharks was because he felt he had to borrow from them to send money to his family in China in order to live up to their expectation that he was wealthy as he was living in Hong Kong. It is said that he was genuinely frightened and regularly several men came to the nightclub where he worked and threatened him and his family.

7. One day in the latter part of 1992, a friend of his in Shenzhen told him that he had a gun which was for sale and he bought it for $5,000.00.

8. The judge made it clear that he took a starting point of 12 years and gave a discount of one-third for the plea even though the Appellant was caught red-handed in possession of the weapon.

9. In sentencing the Appellant, the judge said that he could see no reason to depart from the guidelines set down by the Court of Appeal by Silke V-P in the R. v. Ho Chun [1992] 1 H.K.C.L.R. 86. In that case, the applicant was sentenced to 10 years' imprisonment for possession of arms and ammunition without a licence. He had been convicted after a trial. In that case, the gun had actually been fired and was loaded. Silke V-P said at p-88:

"This court has stated that, after a plea of guilty, a proper sentence would be at least 6 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 6 years" guideline. We would indicate that this court would be unlikely to interfere with sentences of at least 8 years' imprisonment.

This of course relates to a sentence after a plea. These offences are of considerable gravity and it is necessary to make those who are inclined to hold guns in safe-keeping, or for any other purpose, aware that they will face a considerable period of imprisonment. The sentence here is in the top end of the range as it now exists. It is not a sentence with which we would have interfered."

10. Before this court today, Mr. Whitehouse has repeated the same points in mitigation. He emphasises that the gun was unloaded at the time although he concedes that there was ammunition with the gun. He relies on its poor condition and that the gun was required for self-defence. He also points to the maximum sentence for this offence being 14 years and that 12 years is very near the top of the range which would indicate that it was difficult to think of any other case which was quite as serious as this.

11. We agree entirely with the views expressed in Ho Chun. We reiterate that firearms offences are extremely serious and the message must be understood that those convicted of firearms offences will receive very substantial prison sentences. Obviously, if the firearm is used in the course of criminal activity, that makes the matter even more serious. However, the possession of a firearm with ammunition is but a step away from its use. In this case, the judge faithfully applied this Court's decision in Ho Chun. This Court considers that the sentence of 8 years' imprisonment for this offence after a plea of guilty is not one with which we think it proper to interfere. It is a high sentence but it is clearly not manifestly excessive.

12. Accordingly, this application for leave to appeal against sentence is refused.