R. v. SZETO CHI KEUNG

IN THE COURT OF APPEAL

1995, No.719
(Criminal)

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J U D G M E N T

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Power, V.-P.(giving the judgment of the Court):

1. The applicant faced one charge of possession of arms and ammunition without a licence contrary to section 13 of the Firearms and Ammunition Ordinance. It was particularized that he, on 9th December 1994, in Hang Tau Village, Sheung Shui, New Territories, had in his possession a quantity of arms and ammunition, namely five anti-riot pistols of Chinese origin and twenty five-shot cartridges suitable to be used with the aforementioned pistols, without a licence. He pleaded guilty to that charge and was sentenced to imprisonment for five years. He now seeks leave to appeal against that sentence.

2. The facts of the matter were simple. The police found these five pistols at different places in his home and, in the case of two of them, with the ammunition.

3. The trial judge when sentencing said:

"I have taken into account a number of factors in this case, many of which have been helpfully advanced by your counsel. I have also considered the various previous cases he has referred to.

My first task is to decide what an appropriate sentence would have been had you been convicted after trial. I consider the case of Ho Chun (R. v. Ho Chun (1992) H.K.C.L.R. 86) to be a guideline case. In that case the defendant was keeping a pistol and ammunition for a friend and the arms were found at his residence.

At the time of that trial the guideline sentence, for such an offence, was six years' imprisonment after a plea of guilty, and he was sentenced to 10 years after a trial. As a result of that case the starting point after a plea of guilty was increased to eight years' imprisonment. As Mr. Chandler points out, at that time, there had been a number of worrying cases involving firearms in Hong Kong, and that happily the situation is now, not as bad. That can only be an argument for maintaining the new guideline, not an argument to reduce it.

An eight-year sentence on a plea of guilty, would normally suggest a 12-year sentence after trial, but in my judgment that would be too high in the circumstances of this case and I take 10 years as the appropriate starting point in your case. In doing so I bear in mind the following matters:

Firstly in your favour the arms were not loaded and were not - I beg your pardon, and were found at your residence..................

Secondly there is no evidence that the guns have been used for criminal purposes in Hong Kong, or that you would have done so, and the Crown do not suggest otherwise.

Thirdly the guns themselves, although highly dangerous, are not conventional pistols, they are anti-riot pistols ...................."

The judge then went on to say that he bore other matters in mind which were not in the defendant's favour - firstly that the court was dealing with five pistols; secondly that although he had only fired one of the guns once to test it the possibility existed of "such lethal weapons being used" by someone other than the defendant. The judge was satisfied that this was not a fanciful risk in the present case as the weapons were not kept in any secure way. When assessing the discount to be given he took into account the plea, the age of the applicant, which is 33, his positive good character and the fact that he has a supportive wife. He also took into account that when he was arrested he had given information which led to the arrest of another man and that he had been ready and willing to give evidence against him at personal risk to his family. He noted that he had not done so because the man had absconded.

4. For all of those reasons that he was prepared to reduce his starting point of ten years to a sentence of five years.

5. The thrust of the argument of Mr. Chandler, who appeared below and appears before us today, is that this is not an ordinary case which falls within the guidelines of which the judge referred. He submits further and as a secondary consideration that the trial judge failed to give sufficient weight to the background and co-operation of the applicant.

6. When arguing that it was not "a guideline case", Mr. Chandler submitted that this was a case which called for assessment of the starting point without reference to the guideline sentence in Ho Chun's case. He argued that there were a number of factors that made this so. Firstly he submitted that these were not pistols in the ordinary sense but were anti-riot pistols firing ball bearing and were, therefore, not the normal type of pistol so often dealt in charges such as this. He faced the fact that there were five pistols, but he submitted that this had come about because the applicant had felt that the offers made to him by the man in China were so attractive that he simply could not resist the temptation to purchase the pistols. He relied upon the argument by the Crown, and this seems to us to be a matter of very real significance, that it was accepted that the guns were not intended by the applicant to be used in any criminal enterprise. That this was accepted is clear from the following passage in Mr. Chandler's submission to the sentencing judge:

".... the Crown accept that it was not the intention of Mr. Szeto, insofar as these guns were concerned, to use them in any criminal enterprise. That submission is accepted by the Crown, and, of course, if it is not we will hear from the Crown in respect of that and if necessary evidence could and would be called."

Before us the Crown have in no way resiled from that acceptance.

7. Mr. Chandler pointed out also that -

(i) none of the guns were loaded when found,

(ii) that the applicant himself had not brought the guns into Hong Kong,

(iii) they had never been used on any regular basis.

We do not consider these matters mitigate in any substantial way.

8. Mr. Chandler also relied on the real degree of co-operation with the police to which the judge made reference. He submits, leaving aside for a moment the starting point, that the degree of co-operation and the good character of the applicant merited a discount of 55%. We are not persuaded that that is so. We are satisfied that the trial judge cannot be faulted when he assessed a figure for discount of 50%. The real issue, therefore, is whether the figure of ten years was the proper starting point.

9. Mr. Chandler asked this court to make its own assessment upon that issue.

10. Mr. Reading submits that in the circumstances the application of the guideline and the discount allowed was proper. He points particularly to the number of firearms involved and to the need for a deterrent sentence.

11. In our view it is a matter of very considerable weight that the Crown accepted that the applicant had no intention to use these weapons in any criminal enterprise. We have no doubt that the applicant, through naivety and, to a degree, stupidity, created a situation of extreme risk for the community. We are satisfied that it can properly be described as extreme risk because, as the judge said, no one could be sure that these weapons might not fall into the wrong hands and be used for illegal purposes.

12. The starting point must be assessed having regard to the criminality involved. This is not, we say immediately, the sort of case that was being dealt with in The Queen v. Ho Chun. It was clear that the court was there sentencing upon the basis of an admitted intention that the weapons were to be used for robbery. At p.87 of that report Silke, V.-P. said:

It was the applicant's defence that these guns were not his but belonged to a man called 'Ah Shing' who was called in the course of the trial as a prosecution witness. The applicant was apparently holding them for safe keeping. There is a reference by Ah Shing that the purpose of having the guns in Hong Kong was to rob."

There was, in the present case, no such intention.

13. Having given careful consideration to this matter, we are satisfied that, in the unusual circumstances of this case, the judge was wrong to fix a starting point of ten years. We are satisfied that it should have been seven years and should then have been discounted by 50%.

14. That being so the application is allowed. The hearing of the application is treated as an hearing of the appeal. The sentence of five years is reduced to one of 31/2 years.