SECRETARY FOR JUSTICE v. YAN SHEN

CAAR 10/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 10 OF 2011

(ON APPEAL FROM DCCC NO. 723 OF 2011)

____________

____________

__________________________________

REASONS FOR JUDGMENT

__________________________________

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

Background

1. On 8 May 2012 we heard an application for review of sentence by the Secretary for Justice pursuant to section 81A of the Criminal Procedure Ordinance Cap 221, leave having been granted by the single judge on 20 October 2011.  We dismissed the application and said we would give our reasons later.  This we now do.

2. The respondent to this application, Yan Shen, pleaded guilty on 27 August 2011 before Judge Yau in the District Court to a charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238.  The charge alleged that on 18 May 2011 at the security checkpoint in a departure hall at Hong Kong International Airport the applicant had in his possession one pistol with magazine without a licence.  There were adjournments for various reports and on 6 October 2011 the judge ordered the respondent to perform 240 hours of community service and a fine of $50,000.

3. The applicant asserted that the sentence imposed was manifestly inadequate and/or wrong in principle.

The facts

4. The agreed summary of facts revealed that at about 11:30 pm on 18 May 2011 the applicant was at the departure hall, due to take a flight to Seoul and his effects were undergoing routine x-ray screening when a pistol–like object was detected in a hand carried rucksack belonging to him.  The security personnel quickly searched the rucksack but could not find the object and when asked for its location, the applicant took out a black case from a partition of the rucksack and the pistol was found in the case.  The pistol had a magazine but it was empty and there was no ammunition elsewhere in the applicant’s possession or indeed at his home or office.  Upon forensic examination the pistol was classified as a self-loading pistol of 9 x 19mm calibre with a matching magazine and was a functional weapon.

5. The respondent was cooperative with the investigators and told them that the pistol had been given to him when he was a student in the United States of America about 20 years ago and that he had brought it with him when he came to Hong Kong in 2002.  He had not used it and he said that he did not know that it was unlawful to possess a firearm in Hong Kong.

6. Knowledge of illegality apart, the account he gave to the officers was consistent with a somewhat more detailed account provided to the court below.  The effect of his account, provided by oral submissions and detailed reports, was as follows.

7. The applicant was born on the Mainland.  His parents are medical doctors.  He was sent to the United States at the age of 17 years to pursue his studies.  He found the adjustment difficult and depressing.  Whilst at the Grand Canyon University in Phoenix, Arizona, one of his friends was Matt Schoeb with whom he and two others rented a house.  Mr Schoeb was at one stage in 1989 unable to pay the rent and the respondent paid Mr Schoeb’s share for him.  Mr Schoeb had purchased a pistol in 1988 from a local gun dealer; he was a licensed holder of a firearm and filed the necessary federal documents.  Mr Schoeb used the pistol recreationally for target shooting in the Arizona desert and on one occasion the respondent went with him for target practice, though it was not a hobby that he took up, for it did not appeal.  A letter from Mr Schoeb, who still resides in the United States, supporting this account was presented to the court below and accepted as truthful by the prosecution and the sentencing court.  As a gesture in thanks for the payment of a month’s rent.  Mr Schoeb gave the applicant the pistol.

8. In 1991 the respondent secured a Bachelor of Science degree and in 1999 a Master of Science degree at the City University of New York.  Between 1991 and 2002 he worked for various banking institutions, including Lehman Brothers and Credit Suisse.  The gun moved with him and his personal belongings from place to place.

9. In 2002 he was transferred by Credit Suisse to Hong Kong.  He maintained his position there for four years and then moved to Deutsche Bank, Hong Kong, eventually becoming a managing director there.  When he moved to Hong Kong in 2002 he shipped his belongings to Hong Kong and the gun was in the shipment.

10. He is a person of previous impeccable character, aged 43 years at the date of the offence; married with three young children.  His wife and children live in Shanghai because that is where his wife wanted to move when her mother became seriously ill, a factor to which we will return.  The court below was presented with a plethora of testimonials from work colleagues, employers, friends, and others uniformly speaking of his high integrity, caring nature and generally excellent reputation for industry and honesty.  He is a hard worker and a devoted family man and the offence came to all as a shock, an offence described by them as totally out of character.  He is chairman of the fund-raising committee for the school which his children attend.  He is spoken of by some as being a forgetful person.  From the many reports we have read, including the report of a psychologist, he seems to belong to that category of person who is highly efficient at and devoted to work but neglectful and somewhat chaotic when it comes to his own personal affairs.

11. The applicant told the investigators that when he came to Hong Kong in 2002 he shipped all his belongings, which included the pistol, to Hong Kong.  The only reason he retained it was that it was a memento.  He could not bring himself to throw it away because it carried significant sentimental value.  After he moved to Hong Kong, he and his family changed residence from time to time and the pistol, of the presence of which his wife and children were unaware, moved with him and on each occasion kept in a safe, with combination lock and key, at home.  There came a time, however, after his family moved to Shanghai, that he occupied serviced apartments and then a hotel room during which period the pistol was kept in a safe at his office.  Then in March 2011 he rented his own apartment near his office and decided that at a suitable opportunity he would take the pistol back home, to a safe place there.   On 18 May 2007 he decided to take the gun home that day.

12. But that day, and his life generally at that time, was hectic.  His mother-in-law, with whom he had enjoyed a close relationship, had passed away on 2 May 2011.  So he had travelled that week to Shanghai – where his mother-in-law had resided and where his wife and children now lived – and there were many tasks in Shanghai that required his attention.  On 9 May he went to Singapore in relation to work.  On 11 May he returned to Hong Kong, worked hectically for one day and returned to Shanghai on 12 May.  There he hosted a fundraising event for a school the Development Committee and the Schools Foundation of which he is Chairman.  On 16 May he flew to Taiwan to work.  He returned to Hong Kong on the evening of 17 May.  He was scheduled to fly to Seoul on the late evening of 18 May.  On his trip to Taiwan he had with him a backpack in which he carried travel documents as well as material required for work.  Upon his return from Taiwan he slept for a few hours only and went to work at his Hong Kong office in the early morning.  He says that he planned to remove the pistol from the safe in his office that day and take it home before leaving for Seoul.  In the course of the day he had back-to-back meetings, conducted a presentation via a conference call and, in addition, had the embarrassing task of terminating, for cost reasons, the employment of a number of employees.  He also conducted some interviews.  He planned some work in relation to a conference to be held in Singapore a week later.  Then he had a meeting which went on until about 7:30 pm.  He removed the gun from the safe and put it in his knapsack which he took home.  At home he had some food and a nap.  He forgot about the gun.  At about 10:30 pm he left home for the airport with the gun still in the backpack.  He took the backpack with him for it housed travel documents from his Taiwan trip, needed also for the flight on 18 May.  He went to the airport and at the security check the gun in the backpack was detected and he was arrested.  It is accepted by the applicant, as it was in the court below, that the respondent did not intentionally or knowingly take the gun to the airport.  It had slipped his mind.

13. Those are the facts placed before the sentencing court and it is pertinent to note that they were not challenged in any respect by counsel then appearing for the prosecution and they are not now challenged.  

14. The sentencing judge did not accept that the respondent was unaware that it was unlawful to possess a gun in Hong Kong but, that apart, the judge accepted the respondent’s account of events.  Mr Harris SC for the respondent did not upon this application challenge the judge’s finding that the respondent knew it to be unlawful to possess a firearm in Hong Kong; although he said that the respondent was unaware that the courts here take such a serious view of the offence.  In this regard, it emerged from the material placed before the court that the respondent’s father had, about a year before the date of the arrest, told the respondent that he should get rid of the gun; the respondent undertook to do so but, as we know, he did not.

The reports

15. Those acting for the respondent placed before the court below not only the many testimonials to which we have referred but a psychologist’s report and that of a psychiatrist.  The psychologist, Professor Lee, testified at some length and it is again relevant to note that his testimony was not in any particular challenged by counsel then acting for the prosecution.

16. The judge appropriately called for a psychologist’s report to be prepared by a government psychologist and for a background report.

17. There was then a further hearing at which the judge heard submissions in relation to the reports which he had commissioned and in relation to a further report from Professor Lee.  In the light of the reports received and the submissions made, he ordered the preparation of a community service order report and one was accordingly prepared.  There was a further hearing after the judge had received that report.

18. The report by Professor Lee dated 7 July 2011 was prepared after five sessions with the respondent and after conversations with the respondent’s wife.  Professor Lee concluded that the respondent was suffering from dependent personality disorder and anxiety and adjustment difficulties and that he would benefit from outpatient psychological treatment.  A dependent personality disorder is a disorder that is evidenced by having difficulty making everyday decisions, relying on others to assume responsibility, difficulty with initiating projects and going to excessive lengths to obtain support and approval from others.  A common feature of the insecurity which comes with this personality trait is, he said, a need “not to let go of things and keep things as mementos of past experiences.”

19. The report is extensive and we do not propose to rehearse it at length here.  It suffices to say that a feature of the matters alluded to in the report is the respondent’s tendency to procrastinate in personal matters; to “postpone and postpone and postpone” in the words of the respondent’s wife; and to have a real problem with throwing things away.  He was a person who, though highly successful in his career, was disorganised in his personal life.  

20. It was noted that about 10 years ago the respondent was diagnosed as suffering hypertension and cardiac arrhythmia for both of which he receives medication.

21. As for the effect of his arrest and the court proceedings, the respondent had, at the time of his examinations by Professor Lee, lost about 15 lbs, was intensely worried and deeply remorseful.

22. In his testimony Professor Lee said that the respondent, in terms of his approach to his revealed problems, was “one of the most motivated patients that I have seen in my more than 30 years of clinical career”; a “very decent man”; totally consistent in everything he told the Professor and was a person of a “peace loving demeanour”.  There was no indication of any violent disposition and Professor Lee’s conclusion was that the respondent is a person who poses no risk to the public.

23. None of this was the subject of any challenge.

24. The report of the psychiatrist, Dr Peter Yu, did not take the matter further, one way or the other, save to confirm the diagnosis of a dependent personality disorder and to suggest an “adjustment disorder with anxiety”, the second tending to follow from the first.  He too concluded that the respondent posed no danger or risk to the community.

25. The report by the government psychologist Dr Wong made no diagnosis along the lines suggested by Professor Lee or Dr Yu but did not contradict their findings.  Dr Wong pointed out that the fact that the respondent had paid specific attention to the storage of the pistol suggested that he was aware of “the special nature of the object”.  However Dr Wong concluded that there was no evidence that suggested an antisocial tendency.

26. The probation report was largely in the form of a report of the respondent’s history.  It did not offer any conclusion as to the respondent’s character or motivation.

Reasons for Sentence

27. The judge noted that the maximum sentence for possession of a firearm without a licence was 14 years’ imprisonment; that it was a serious offence indeed which attracts an immediate custodial sentence unless there are exceptional circumstances; not least because even in the case of someone who does not intend to use the weapon for any unlawful purpose, it is the danger of it falling into wrong hands that is so serious.  His Reasons demonstrate that he was well aware of the sentences normally imposed for this offence and of the wide range of culpability that cases in this category present.

28. Not surprisingly, he said that the sentencing exercise in the present case was one that was far from easy.  “Here I have before me a man of unblemished and impressive record [who] is highly successful in his banking career.  He, however, stands convicted of a very serious offence.”

29. He accepted that the respondent had no intention of using the firearm and, further, that he had previously “taken great precaution to keep the firearm in safe custody to make sure that it should not fall into wrong hands.  I am convinced that the possession of a firearm by the [respondent] did not pose a risk or danger to society.”  He accepted as well that the reason for the failure to dispose of it was because of his procrastinating disposition and his sentimental attachment to the firearm which the respondent regarded “as a memento of an important stage in his life.”

30. The judge accepted as well that the respondent suffered the personality disorder to which Professor Lee referred; that he was, however, receiving treatment and making good progress.

31. The judge was however troubled by the fact that the respondent intentionally brought the firearm into Hong Kong and he did not believe that the respondent did not know it an offence to do so.  The question which the judge posed to himself was why a well-educated and successful man should do what he did and, having considered all the circumstances, he concluded that the only conceivable reason was that he had this compulsive need to retain the weapon.  It was, said the judge, an extremely stupid act but in view of the strong mitigating factors and what the judge referred to as the special circumstances of the case, the judge concluded as follows:

“The court is convinced that the defendant requires psychological treatment to help him reform. The court considers that allowing the defendant to reflect on these misdeeds through voluntary community work for society and at the same time to receive the necessary psychological treatment is in the best interest of society and justice and is the most appropriate sentence in the present case. The court therefore makes an order that the defendant is to perform 240 hours of community service… . The defendant is to continue to receive psychological treatment while performing this order. … This is not a soft sentencing option because a number of authorities including the statutes creating this sentencing option all say that community service is equivalent to a term of imprisonment. To make sure that the offence bears more strongly and deeply in the mind of the defendant … the court also imposes a fine of $50,000.”

The grounds of application

32. In support of the application for review, the first argument, amongst the several ably advanced by Mr Lee, is that the sentencing judge paid insufficient regard to the imperative of general deterrence for the offence of unlicensed possession of a firearm and, by the same token, accorded too much weight to the individual mitigating circumstances.  He emphasised the fact that the respondent brought the weapon into Hong Kong – itself an aggravating feature – and kept it for nine years without surrendering or disposing of it.  If a non-custodial sentence was appropriate for this conduct then what, counsel rhetorically asked, is the appropriate penalty for other cases without these features.  The respondent was obviously aware of the sensitive nature of the article which he possessed for he had been paying particular attention to its storage.  It is argued that the psychological factors should not have carried as much weight as they did.  Whilst it is true that steps were taken to keep the pistol in safe custody, the respondent nonetheless carried it with him from time to time when he moved his places of residence, thereby creating the danger that it might accidentally come into the wrong hands.  Accordingly, it was argued, the sentence imposed was outside the range of sentences which a judge, applying his mind to all relevant factors, could reasonably consider appropriate.

Principles

33. The passage from Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41 at 46A, which this Court, differently constituted, recently endorsed in full in Secretary for Justice v Wong Chi Wai (CAAR No 6 of 2010, 26 March 2012, unreported) runs as follows:

“The first thing to be observed is that it is implicit in the section that this court may only increase sentences which it concludes were unduly lenient. It cannot, we are confident, have been the intention of Parliament to subject defendants to the risk of having their sentences increased-with all the anxiety that this naturally gives rise to-merely because in the opinion of this court the sentence was less than this court would have imposed. A sentence is unduly lenient, we would hold, where it falls outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate. In that connection regard must of course be had to reported cases, and in particular to the guidance given by this court from time to time in the so-called guideline cases. However it must always be remembered that sentencing is an art rather than a science; that the trial judge is particularly well placed to assess the weight to be given to various competing considerations; and that leniency is not in itself a vice. That mercy should season justice is a proposition as soundly based in law as it is in literature.

The second thing to be observed about the section is that, even when it considers that the sentence was unduly lenient, this court has a discretion as to whether to exercise its powers. Without attempting an exhaustive definition of the circumstances in which this court might refuse to increase an unduly lenient sentence, we mention one obvious instance; where in the light of events since the trial it appears either that the sentence can be justified or that to increase it would be unfair to the offender or detrimental to others for whose well-being the court ought to be concerned.”

34. In Wong Chi Wai, we referred also to Everett v The Queen (1994) 181 CLR 295, a decision of the High Court of Australia which merits study for its commentary upon a similar statutory provision conferring upon prosecuting authorities the right of an appeal against sentence.  In that case McHugh J suggested, at pp 306-307, that leave to the prosecution to appeal against sentence should be given only in exceptional circumstances but that the barrier for leave was not as stringent as the barrier faced by the Crown when, in that jurisdiction, it seeks special leave to appeal against an order of acquittal.  This was because:

“The jurisdiction to hear a Crown appeal against sentences is conferred on a Court of Criminal Appeal so that that court can ensure that, so far as the subject matter permits, there will be uniformity of sentencing. Uniformity of sentencing is a matter of great importance in maintaining confidence in the administration of justice in any jurisdiction. Sentences that are higher than usual create justifiable grievances in those who receive them. But inadequate sentences also give rise to a sense of injustice, not only in those who are the victims of the crimes in question but also in the general public. Inadequate sentences are also likely to undermine public confidence in the ability of the courts to play their part in deterring the commission of crimes. To permit the Crown, as well as convicted persons, to appeal against sentences assists in maintaining confidence in the administration of justice.

If a sentencing judge imposes a sentence that is definitely below the range of sentences appropriate for the particular offence, the case can be regarded as falling within the rationale for conferring jurisdiction in respect of Crown appeals.  It can be regarded as sufficiently exceptional to warrant a grant of leave to appeal to the Crown even if no question of general principle is involved.  Such cases, however, are likely to be rare.  Defining the limits of the range of appropriate sentences with respect to a particular offence is a difficult task.  What is the range in a particular case is a question on which reasonable minds may differ.  It is only when a Court of Criminal Appeal is convinced that the sentence is definitely outside the appropriate range that it is ever justified in granting leave to the Crown to appeal against the inadequacy of a sentence.  Disagreement about the adequacy of the sentence is not enough to warrant the grant of leave. Sentencing is too inexact a science to make mere disagreement the criterion for the grant of leave to appeal against the inadequacy of a sentence.  The requirement of leave gives rise to the inference that parliament intended that something more than mere error was to be the criterion of the grant of leave.”

35. We endorse those sentiments but we caution sentencing and reviewing tribunals to note that the importance of uniformity of sentencing is not intended as an encouragement to rigidity at the expense of case and individual-specific considerations.  Consistency of sentencing means that like cases be dealt with in a like manner but, as is evident from the range of culpability that is presented by cases of unlicensed possession of firearms, different degrees of culpability should, as a general principle, be reflected by different sentences.  As a general proposition, the degree to which mitigating factors will carry weight varies according to the nature of the offence and the sentencing policy adopted by the courts in the interests of society.  Thus, for example, so determined are the courts to send a stark message to would-be traffickers in dangerous drugs that in that category of offence individual mitigation counts for very little, whereas the approach in most other categories of offence is less rigid.  However, in the case of unlicensed possession of firearms, societal protection is a paramount consideration; it is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration.  It is a category of offence which in general requires a deterrent sentence by which is meant “sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider”: Lord Chief Justice Woolf in R v Rehman [2006] 1 Cr App R (S) 404 at 409.  But that does not require a blind eye to be turned to individual circumstances.  Whilst, normally, unlicensed possession of a firearm will result in an immediate custodial term, often a substantial term, there will be truly exceptional cases where the imposition of a non-custodial term may be justified; although the sentencing tribunal will be expected to furnish a sensible and clear explanation for taking that exceptional course. 

36. The reason for taking such a serious view of unlicensed possession of firearms has been articulated both in this jurisdiction and elsewhere.  Our attention has been drawn, for example, to the fact that the Firearms Act 1968 in the United Kingdom provides for a mandatory minimum term of five years’ imprisonment, mandatory unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justify its not doing so.  In R v Rehman, above, at p 411, it was noted that the rationale for the provision was the need for a strong deterrent message:

“The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers.”

37. We would add this as a consideration for deterrence in this jurisdiction. As a major and densely populated city, Hong Kong is a remarkably safe place and known to be so.  One of the reasons it is safe is, we suggest, to be found in the strict gun control laws of this jurisdiction and the absence of guns on its streets.  The community, with the assistance of the courts, is intent on keeping it that way.

38. What then are exceptional circumstances?  It would be unwise to suggest examples but we suggest that an exceptional case will tend to be the case where the reasons for a non-custodial sentence, when explained, will readily be understood by the public to be sufficiently unusual to warrant a departure from the tough norm; in such a case general deterrence is not undermined.  General deterrence is to be distinguished from individual or specific deterrence where the latter is designed to deter the convicted defendant from offending in the future and the former is designed to send a message to the community at large.  In the case of unlicensed possession of firearms there will be cases where individual deterrence is, in addition to general deterrence, a live consideration; but in many cases general deterrence is realistically the true and only deterrent objective and it is an objective which will tend significantly to outweigh considerations personal to the offender.  That may operate harshly in specific cases but that is a product of the fact that this is a category of offence where protection of the public and preservation of a safe living milieu is the paramount consideration.  The sense of the matter is conveyed by a passage in R v Engert (1995) 84 A Crim R 67, in the context of a discussion on the impact in these cases of psychiatric disorders.  At p 72 Allen J said:

“General deterrence is simply the deterrence of others and characteristics personal to an offender might make him an unpersuasive vehicle for the deterrence of others in the sight of those others. It must be emphasised that general deterrence is directed to deterring others. So one must look to the impact upon others. Even in a case where an offender has a mental disability which is unrelated to the commission of the crime the sympathy which his condition must attract in the eyes of others in the community generally may be such that to sentence him with full weight given to general deterrence might have no impact at all upon others. Human sympathy would say: ‘Well, you would not expect him to get the same sentence as someone else’.”

39. That was a discussion in the context of circumstances peculiar to the offender.  But there may be unusual circumstances peculiar to the offence which, if clearly explained, would not detract from general deterrence.

40. At the risk of devaluing the truth and importance of the adage by repetition, we emphasise again that sentencing is an art rather than a mechanistic exercise divorced from case-specific and individual-specific circumstances and it is for the sentencing tribunal to bear well in mind the importance in this category of offence of general deterrence and yet not to forget that there may be exceptional cases, which by reason of the facts of the offence or the circumstances of the offender, permit a sentence other than imprisonment; cases where, because of exceptional facts or circumstances clearly explained, the message of immediate imprisonment as a starting assumption, is not undermined.

41. Care must always be taken in assessing assertions of personality disorders and, even if established, the degree to which such a disorder in a particular case is relevant to sentence.  In this particular case, the nature of the assessment by Professor Lee, backed as it was by his oral testimony and the opportunity for cross-examination, was highly professional, infused with suitable safeguards by him to test the credibility of the client, and an analysis which clearly explained a link between the identified disorder and the commission of the offence.  The mere existence of a personality disorder which has no bearing on the offence is most unlikely to constitute any mitigation.  In addition, in this case, the sentencing judge called for the preparation of a psychologist’s report.  It was a thorough and careful exercise by the judge; necessary in such cases because there is a wide range of expertise in the field and there is always a danger of too ready an identification of an unusual personality trait as a disorder.

42. In this context, it is helpful to note the warning sounded in R v Yaldiz [1998] 2 VR 376 at 383 that:

“It is not appropriate to simply fasten on to the words "recognised psychiatric disorder" and then, without reference to the symptoms and consequences of that disorder, to contend that purposes of general deterrence have no part to play in the sentencing process. Whether in the particular case a psychiatric condition should reduce or eliminate general deterrence as an appropriate purpose of punishment will depend upon the nature and severity of its symptoms and its effect upon the mental capacity of the accused.”

43. And in the same case, the correct approach was suggested by Batt JA, at p 381, to be as follows:

“General deterrence is not eliminated but still operates, sensibly moderated, in the case of an offender suffering from a mental disorder or severe intellectual handicap.”

44. In the case before us, the disorder appears to have been relevant to the offence in that the respondent laboured under an almost compulsive difficulty in ridding himself of possessions of suggested sentimental value.  But the severity of the disorder does not, of itself, appear to us to negate considerations of general deterrence.  In this case, it reduced rather than removed moral culpability, although we recognise that there were other cogent mitigating factors at play.

The competing considerations

45. We found this a difficult case because, on the one hand, the interests of society in banishing firearms from its midst, save in the hands of law enforcement authorities and a few other individuals to whom the law permits possession, is paramount.  It is a category of offence in respect of which the courts have consistently come down hard upon those who breach the law.  The lesson has firmly to be conveyed that, in this jurisdiction, the element of general deterrence is the paramount consideration and that save in exceptional circumstances a conviction, whether on a plea of guilty or not, will be met by an immediate custodial term.  The length of that term will vary with the circumstances.  Some of those circumstances were referred to in HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 where it was said that they include:

“(a) the type of firearm and ammunition involved;

(b) whether the defendant physically carried the firearm and ammunition;

(c) whether the firearm was loaded;

(d) whether the firearm had been used;

(e) whether the defendant intended to use the firearm for illegal purposes;

(f) whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders; and

(g) whether the defendant had a clear record.  The level of sentence depended on the courts view of the potential risk posed by the firearm and ammunition in question, taking into account the circumstances of the case and the defendant's background.”

46. A particularly worrying fact in this case is that the weapon found its way to the airport.  Anybody who knowingly carries a weapon at an airport, whether with ammunition or not, must expect a substantial term of imprisonment whatever his background.  As against the respondent as well, lies the fact (albeit volunteered by him) that he had been advised by his father to dispose of the weapon but had not done so.  In addition it has correctly been emphasised by Mr Lee for the applicant, that the respondent, albeit years ago, knowingly brought the weapon into Hong Kong: again, in the normal course of events, that fact of itself will warrant a substantial term of imprisonment. Mr Harris did not suggest that the respondent was unaware of the illegality of bringing it in.

47. As against those cogent factors lie a series of facts upon which basis sentence was passed and upon which we were bound to consider the case:

(1)  the respondent is a person of impeccable character and reputation;

(2)  the weapon was not loaded; there was no ammunition in the respondent’s possession; and the weapon had not been used for over 20 years;

(3)  the respondent did not intend to use the firearm for any unlawful purpose;

(4)  the respondent had, save for the purpose of moving it to new residences, kept the firearm in safe deposit repositories, and had told no-one of its existence or whereabouts, save for his father; a mitigating factor lessened in its weight by the fact that on the date of his arrest he was negligent to allow it to be with his belongings in a public place and an acutely sensitive public place at that;

(5)  the respondent poses no risk to society;

(6)  the respondent laboured under exceptional stress at the time of the offence by reason of an extraordinary work and travel regime and unfortunate personal circumstances but for which combination of facts it is highly probable that he would have remembered to place the weapon in his safe at home;

(7)  the respondent laboured under the disadvantage of a compulsion to hoard and to hold onto mementos;

(8)  the respondent was immediately cooperative with the authorities who arrested and interviewed him;

(9)  the respondent pleaded guilty;

(10)  there was evidence that the respondent, in the months leading up to his court appearances, suffered acute anxiety – not a unique factor, but a factor nonetheless;

(11)  there was evidence that he was responding well to therapy the benefit of which might be undermined by a period of incarceration; and

(12)  he was at the time of sentence in gainful employment which he stood to lose if incarcerated.

Resolution

48. The question whether in all the circumstances a non-custodial sentence was within a range reasonably open to the judge in the circumstances of the case was difficult.  It in turn required us to ask whether, remembering general deterrence as the paramount consideration, there existed such exceptional facts and circumstances that the central message of immediate imprisonment as a starting assumption would not be undermined by a non-custodial term.  That is not a conclusion at which we conscientiously could arrive unless we permitted the particular importance of general deterrence as well as certain central facts attaching to possession of the pistol, to be subsumed by the fact of the respondent’s impeccable character and his remorse.  Our opinion, at the end of the day, was that the judge – faced though he was with a difficult case and understandable sympathy for the respondent – accorded too little weight to the imperative of strong deterrence and to certain facts and too much weight to the mitigating factors, cogent though those factors were.

49. We think, with respect, that in saying that possession of this firearm by the respondent did not pose any risk or danger to society, the judge erred. It is true that the respondent’s possession of this firearm posed no danger in the sense of any likely use by him of it and it is true also that his possession of this firearm otherwise posed less danger than in many other cases one might imagine or to which one might point.  But it was not correct to say that it posed no risk or danger.  What was overlooked by the judge was the risk that the weapon might unwittingly be left in a public place – a taxi, for example – on those occasions when the respondent moved residences and moved the weapon with him.  Indeed, what happened on 18 May 2011 was itself a good example of the type of negligence which might result in the weapon falling into the wrong hands.

50. The other fact to which in our judgment insufficient weight was given was that the respondent brought this weapon into the jurisdiction, knowing that he should not do so.  In so saying we recognise that he was strongly attached to the item as a memento and suffered a real personality problem in bringing himself to get rid of it and we do not suggest that these are factors to be ignored; they go to mitigation and all mitigation must be given its due weight but his conduct nonetheless showed that he knew that what he was doing was unlawful and it is our judgment that the personality problem was, in the context of all the factors at play, accorded too much weight.

51. So, we concluded that the circumstances were not of that exceptional category as to justify a non-custodial term and but for the post-sentence factors to which we have alluded, we would have allowed the application for review. The question of the appropriate term of imprisonment is not easy. Whilst the facts demanded a custodial term, a consideration of the factors to which Chan Chi Fun (para 45 above) refers and of the cogent mitigating features which we have particularsied at para 47 above, leads us to the conclusion that an appropriate sentence in this case after plea would have been one in the region of 18 months imprisonment.

52. We were however satisfied that even though a non-custodial sentence was outside the range which the judge applying his mind to all the circumstances could reasonably impose, we should nonetheless exercise our discretion not to interfere with the sentence.  This is because, first, the hearing of the review took place seven months after the sentence was passed and 6½ months since leave to apply for review was granted during which time the respondent has suffered the further anxiety of the prospect of imprisonment; second, he has already performed over 200 hours community service; third, in consequence of the uncertainty occasioned by this application, he has lost his employment, although now offered fresh employment elsewhere; and, fourth, he has conscientiously attended to his therapy.  Putting all these factors together, and in light of the relative brevity of the appropriate custodial sentence, our view was that it would be unconscionably harsh now to substitute a term of imprisonment.  For that reason, we dismissed the application.

53. We do not wish to leave this case without recording a commendation for the conscientiousness of the sentencing judge’s approach to his task, for the attention paid by those acting for the respondent to the mitigation exercise in the court below and for the professional and helpful manner in which this application for review has been conducted by both sides.