R. v. SIM CHI KO

IN THE COURT OF APPEAL OF THE HKSAR

1996, No. 504
(Criminal)

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J U D G M E N T

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Liu, J.A. (delivering the judgment of the Court):

1. The applicant faced one count of possession of arms and ammunition without a licence in the High Court. He pleaded not guilty to the charge. He was convicted on a verdict returned by the jury and sentenced by Deputy Judge Jackson. He sought leave to appeal against his conviction. That application was turned down and his application today is one for leave to appeal out of time against sentence. In considering his application for leave to appeal out of time, we entertain his application de bene esse, that is to say, provisionally in the meantime. For that purpose, we propose to go into the merit or the lack of it of the substantive application for leave to appeal against sentence, probing into it to see if there is any possibility of the applicant succeeding. On that understanding, we have proceeded to hear the applicant. He has cited authorities for our benefit. We have had also the assistance of Mr Di Fazio in response. Applicant has been afforded an opportunity to and does reply to counsel submission. However, he simply cites an additional case for our perusal.

2. After he was convicted, the applicant was sentenced to 7 years by the Deputy Judge, and it is against that 7 years' sentence that he seeks leave to appeal out of time.

3. The facts are quite uninvolved. It is alleged against the applicant that on 10 February 1996 in his home at Room 2A,. 3rd Floor, Po Kee Building at No. 2, Dock Street, Hung Hom, he had in his possession arms and ammunition, to wit, one Chinese type 54 7.62 mm calibre automatic pistol and four rounds of 7.62 mm calibre live ammunition. The charge against him was that he so possessed arms, a loaded pistol, as particularised without a licence or authority. In his defence, the applicant complained of police entrapment through a friend of his, who had been in fact a police informer. He said before the Deputy Judge that he was invited by his friend to take in a bag which contained the pistol and the ammunition.

4. To all intents and purposes, the applicant now accepts the verdict of the jury. In his grounds of application for leave to appeal against sentence, he, first of all, complains that the sentence of 7 years is much too high. Secondly, he draws the court's attention to the absence of any intention on his parts to put the automatic pistol to use. He further reminds this court that he played an unwilling and passive role for accommodating a friend who turned out to be a police informer. To add insult to injury, his friend allegedly turned him in for a reward of $15,000. He also complains that the judge did not give sufficient discount for his allegation of having been framed. He maintains before us that the starting point adopted by the trial judge is too high, resulting in a higher final term that he has to serve. Today he draws our attention to his family condition, having three children and a wife who are left uncared for during his incarceration. This represents, in toto, his grievances as set out in his Grounds of Application.

5. In sentencing the applicant, the Deputy Judge acknowledged that he is a young man of 29 and that he had been a skilled jewelry-maker. The Deputy Judge also recounted his allegation of being let down by his friend, probably in conjunction with the police. The Deputy Judge set out the guiding authorities before he selected the starting point in the sentencing process. He recognized the case as "most unusual" in that the applicant's apprehension was made on the information supplied by a registered police informer. The Deputy Judge bore in mind his same statement made to the police from start to finish. The judge was mindful of the consistency in his claim of being framed by his friend, the police informer. The applicant told the police right from the time of his arrest that his friend came to his cubicle in the early hours of the morning on 10 February, dumped the bag on the floor and left, saying that he would return later to collect it. The Deputy Judge was alive to the given particulars of his offence. He was aware of the logical probability that the jury might not have discounted the possibility of the applicant being indeed set up by an informer in the way as he described it. The Deputy Judge made no mention of the aspects that the applicant was providing a safer or another storage place for his friend and that instead of there being simply one custodian of the pistol and ammunition, they would readily be accessible to more than one pair of hands. That facet of unlawful possession, the Deputy Judge had in fact totally disregarded.

6. A discount was given by the Deputy Judge, reducing the starting point of 10 years' imprisonment to 7, not so much for any real possibility of an entrapment, but for the surmised non-exclusion of the possibility of an entrapment in the verdict returned by the jury on the count the applicant faced. There lies, in our view, a significant distinction. Each case must necessarily be judged on its own facts and circumstances. The applicant focuses his complaint on entrapment. He has referred us to court decisions on the topic, but the case of the applicant stands on its own facts. It would seem that the Deputy Judge paid proper regard to the possible element of entrapment in the way, we think, it should be analysed. The judge had not overlooked any of the pertinent features, including the matters raised in the applicant's Notice of Application. The culpability of the applicant lies in his willing acceptance, so it was found by the jury, of the pistol and ammunition either in an acquisition or the alleged entrapment. On good authorities, the starting point adopted by the Deputy Judge cannot be faulted. The discount of 3 years given by the Deputy Judge for the jury's non-exclusion of a possibility of the applicant having been entrapped erred, if at all, on the side of being generous. The judge had taken into consideration all the relevant circumstances. We are unable to question the discount he had, in the exercise of his discretion, selected. We do not find in the starting point adopted, the discount given and the sentence imposed any error of law. Consequently, the ultimate term ordered to be served by the applicant can, in no way, be said to be manifestly excessive or wrong in principle. Also, the discount is clearly not manifestly inadequate nor is it wrong in principle. The Deputy Judge was only too aware that this is not an ordinary case of possession. In fact, the Deputy Judge described it as "most unusual" and gave the applicant the maximum benefit of doubt on the verdict returned by the jury. There is no substance, in our view, in the applicant's complaints. His application for leave to appeal out of time against sentence is therefore dismissed.