ATTORNEY GENERAL v. LI KIT WAI

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Dace of delivery of judgment: 16 March 1988

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J U D G M E N T

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Cons, V.-P. delivered the judgment of the Court:

1. In February this year the Defendant Li Kit Wai pleaded guilty to two counts of possession of arms and ammunition before Deputy Judge Ryan in the High Court. The facts of the case were that the Defendant, having been approached by police in the street, took them to two addresses. The first was a flat where he lived with his father. There, in a wardrobe, was found a 7.62 mm semiautomatic pistol, fully loaded, and further rounds in an envelope beside it. The second was his brother's flat, where a Colt .45, also fully loaded, was found in a locked drawer.

2. The Defendant's explanation to the police, which he repeated to the judge below, was that he had been asked by a friend of his, an illegal immigrant, to look after the guns while the friend returned to China for a while. He fully expected the friend to come back in due course and retrieve the guns from him.

3. The judge accepted the explanation and took it into account when passing sentence, in addition to what was in effect the Defendant clear record. The judge then made a substantial discount for the plea of guilty, saying that had the Defendant not pleaded guilty the sentences would have been three to four years. The result was concurrent sentences of two and a half years.

4. Pursuant to leave granted by Yang, V.P., as he then was, the Attorney General has asked us to review the sentences. He suggests that they were both wrong in principle and manifestly inadequate.

5. The proper approach to offences of this kind was laid down by this Court in Attorney General v. Lai Shu Piu & Another⁽¹⁾ where, after referring to previous guidelines which, for reasons which need not detain us, could no longer be appropriate the Court said -

"... the proper sentence on a plea of guilty for simple possession of a gun would be six years'.''

Unfortunately that authority was not drawn to the attention of the judge below. It follows, that in passing the sentences that he did, the judge erred in principle, and the sentences were manifestly inadequate.

6. Mr. Whitehead, who appears today for the Defendant, does not contest that. Instead he has drawn to our attention factors for consideration in deciding what sentence should now be substituted.

7. In our view, in the circumstances, proper sentences would have been six years on each count concurrent, but giving the customary discount for proceedings of this nature we think that the sentences now should be five years on each count concurrent.

8. For these reasons we grant the application to review and vary the sentences accordingly.

⁽¹⁾ Application for Review No. 12 of 1985