HKSAR v. TSIANG ON YAN

CACC 25/2018

[2019] HKCA 460

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 25 OF 2018

(ON APPEAL FROM HCCC NO 358 OF 2017)

_________________

_________________

_______________

J U D G M E N T

_______________

Hon Zervos JA (giving the Judgment of the Court):

1.  On 16 January 2018, the applicant was convicted on his own plea before Toh J (the judge) of a single offence of possession of a dangerous drug, namely 359.61 grammes of herbal cannabis, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134 (Count 1), and a single offence of possession of arms and ammunition without a licence, namely one self-loading pistol of .45 ACP (Automatic Colt Pistol) calibre with a magazine and 13 rounds of live ammunition of .45 ACP calibre, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (Count 2).

2.  The applicant was sentenced to concurrent terms of imprisonment of 2 months on Count 1, and 8 years on Count 2, resulting in a total sentence of 8 years’ imprisonment.

3.  The judge adopted a starting point of 12 years’ imprisonment on Count 2, which she reduced by one third for the applicant’s guilty plea to 8 years’ imprisonment.

4.  The applicant applies for leave to appeal his sentence and only takes issue with the starting point adopted by the judge for Count 2. 

The brief facts

5.  In the early afternoon on 17 June 2016, police officers conducted a search of a farm in Ha Wan Tsuen, Lok Ma Chau.  The applicant was the tenant of the land of the farm and the farm was owned by a company held by the applicant’s friend and another person who had agreed to invest in the farming business which was operated and managed by the applicant.  Inside the farm, there was a fish pond which was surrounded by several wooden or container huts.  In one of the container huts, the police found a plastic box on a table which contained a resealable plastic bag containing 32 packets of a total of 359.46 grammes of herbal cannabis, a plastic herb grinder containing 0.15 gramme of herbal cannabis, and drug related paraphernalia, such as 2 electronic scales, a cigarette rolling machine and cigarette papers, and 2 packets of transparent resealable plastic bags. 

6.  The estimated retail value of the herbal cannabis at the time of the offence was $40,276.

7.  The applicant was arrested and cautioned in relation to the discovery of the drugs. In response, he admitted that the herbal cannabis belonged to him but claimed it was for his own consumption.

8.  The next day, the police went back to the farm to search the other huts.  They found in a wooden hut a black bag concealed within the wooden planks.  Inside the black bag, they found a plastic bag containing a pistol with a magazine and 13 rounds of live ammunition.

9.  A forensic firearms expert who examined the pistol confirmed that it was a Chinese origin Norinco model 1911-A1 compact self-loading pistol of .45 ACP calibre inserted with a magazine, which was capable of storing .45 calibre ammunition for discharge by the pistol.  He observed that the hammer of the pistol was half cocked and that there were no cartridges in the magazine when he removed it from the pistol.  He also confirmed that the 13 bullets were live ammunition of .45 calibre, suitable for discharge by the pistol.  He tested the pistol with the magazine and established that it was in working order and capable of firing a bullet.

10.  The pistol was tested for human DNA and the applicant’s DNA was obtained from the trigger, hammer and handle of the pistol.

11.  In entering his pleas of guilty to the two counts, the applicant admitted that he was in possession of the herbal cannabis, and the pistol with a magazine and 13 rounds of live ammunition.

The applicant’s mitigation

12.  At the time of sentence, the applicant was 54 years of age, married with three children.  Defence counsel submitted that the applicant had previous criminal convictions but they were long ago and not of a very serious nature.[1] He explained that the applicant maintained a stable lifestyle and had a supportive family.  He pointed out that the applicant was running a farming business with his friends at the time of the offence with a monthly income of about $20,000.  His wife worked as a clerk in the government service and his two daughters also worked as clerks, while his son was a decoration worker.  He submitted that the applicant was very regretful and remorseful for what he had done and was concerned about how it had affected his family. 

13.  Defence counsel went on to submit that the applicant had operated the farm for about one year prior to the offence in order to earn a living by raising sheep.  He explained that the applicant previously had military training with the Hong Kong Military Services of the British Army in the 1980s when he was young.  As a result, he became a gun enthusiast.  He said that the applicant had discovered the black bag with the pistol in the premises about two months prior to the offence, and that he decided to keep it for his own pleasure because he missed his army days and was very passionate about guns.  He stressed that the applicant was not going to use the gun, and that at the time of the offence, the gun had neither been used, nor carried by him.  He submitted that the gun and ammunition were well hidden and invited the judge to apply HKSAR v Chan Chi Fun,[2] in which this Court set out factors that a sentencing court should take into account when sentencing an offender for this type of offence.

The reasons for sentence

14.  The judge, having outlined the facts of the case and the mitigation advanced on behalf of the applicant, turned her consideration to the firearm offence and to the sentencing guideline case of Chan Chi Fun, which she discussed as follows:

“In that case, the Court of Appeal said that in determining the appropriate sentence that some of the mitigating or aggravating factors included the type of firearm and ammunition involved, whether the defendant physically carried the firearm and ammunition, whether the firearm is loaded, whether the firearm had been used, whether the defendant intended to use the firearm for illegal purposes, whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders and whether the defendant had a clear record. The level of sentence depended on the court’s 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.

In that case, as observed by the Court of Appeal, the firearms were stored in a safe place such as a safety box and none of the firearms had been loaded. In this case, the police did not need to open any safety box. It was hidden – of course it was hidden – under some planks but could be accessible to someone searching the premises. What is even more dangerous which I consider to be an aggravating factor is the fact that live ammunition was found together with it. Although the defendant claimed that he was not going to use it for any illegal activities. However, anyone finding the pistol together with the live ammunition could do considerable damage and endanger lives in Hong Kong and therefore the Court of Appeal has even said that this type of sentence calls for a deterrent sentence.”[3]

15.  The judge then referred to HKSAR v Chan Hoi Ngam,[4] in which this Court stated that Hong Kong’s firearm sentencing policy had been designed to act as a strong deterrent to those with no right to be in possession of such weapons.  The Court noted that there may be cases where a judge might take a lower starting point than 12 years for offences brought under this section depending on the circumstances of the case, and that a judge had a considerable discretion to reduce the period of imprisonment to be served even where a 12 years starting point after trial was taken.

16.  The judge also referred to HKSAR v Hu Quanwu,[5] in which this Court stressed that possession of arms and ammunition was an extremely serious offence in Hong Kong.  The Court suggested that the proper sentence on a plea of guilty for a simple possession of a gun would be 6 years, and where there was an intention to use the gun for an unlawful purpose, something in excess of 6 years would be appropriate.  However, the Court added that possession of a loaded firearm or possession of both an unloaded firearm and ammunition, was an aggravating factor which might lead to the enhancement of the usual sentence.

17.  The judge concluded her analysis of the sentencing guidelines by quoting the following passages from HKSAR v Terry Cheung Sik Wai:[6]

“17. Possession of arms and ammunition without a licence is always considered a serious offence and harshly dealt with by courts in Hong Kong. It is perhaps because of such an approach that Hong Kong remains a relatively safe city.

18.  R v Ho Chun [1992] 1 HKCLR 86 has been regarded as a sentencing guideline case for possession of firearms and ammunition without a licence.  In giving the judgment of the court, Silke VP said that the Court of Appeal would be unlikely to interfere with sentences of at least 8 years’ imprisonment after a plea of guilty.  That means a 12-year starting point was considered appropriate.  Such an approach was approved by the Court of Appeal in R v Milhench [1996] 1 HKC 628, HKSAR v Yau Siu Kai [2001] 1 HKC 427 and HKSAR v Chan Hoi Ngam [2000] 1 HKC 618.”

18.  With these sentencing remarks in mind, the judge observed that possession of a firearm had been treated very seriously as an offence because of the considerable harm it can do to society, and concluded that a deterrent sentence was “absolutely necessary”.  In passing sentence on the applicant, she said:

“… The problem is that there were 13 live rounds found together with the pistol. It was not locked up anywhere. It was just concealed under some planks in a hut. It was easily accessible to someone searching for it. The pistol was in working order and fully capable of discharging the 13 live rounds. So a deterrent sentence is necessary in this case and I therefore consider that a 12 years starting point is appropriate and reducing it to 8 years because of the defendant’s plea.”[7]

The applicant’s submissions

19.  The sole ground of appeal is that the starting point for the firearm offence was wrong in principle and manifestly excessive.

20.  Mr Eric Cheung, with Ms Lydia Leung, for the applicant, submitted that there was no evidence that the applicant intended to use the pistol himself or allow others to use it for an illegal purpose, nor was there evidence that the applicant had carried the pistol or the bullets outside the farm.  In consequence, he submitted that the judge erred in (a) adopting a starting point which was appropriate for cases where there was evidence suggesting that the arms and ammunition concerned had been used or intended to be used for an illegal purpose, instead of drawing reference from those cases where the accused possessed the firearm without such intention; and (b) failing to have sufficient regard to the fact that the applicant was a gun enthusiast who kept the unloaded pistol and bullets concealed within wooden planks inside the hut for his own pleasure without the intention to use them for an illegal purpose.

21.  He referred to HKSAR v Leung Kwok Chi,[8] where this Court stated:

“43. Possession of arms and ammunition without a licence is always considered to be a very serious offence in Hong Kong as they can create grave dangers to the public. If the arms and ammunition had been used or intended to be used for any crime, the starting point would be 11 years and above. Even if the arms and ammunition had not been used and were not intended to be used by the offender for any crime, the offence can still attract a starting point as high as 6 years, depending on the nature of the arms and ammunition and the circumstances in which the offence was committed.

44. It is only by adopting a stringent approach to the unlicensed possession of arms and ammunition that the court can ensure that Hong Kong continues to be a safe city and to that extent we fully endorse the observations of Lord Chief Justice Woolf as expressed in R v Rehman (supra).

45. However, it has to be recognised that there are varying degrees of culpability for unlicensed possession of arms and ammunition and ‘at the top of the scale is of course possession for illegal purposes such as robbery, injuries to persons or damages to properties, whereas possession as a hobby with no risks of the firearms or ammunitions being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale’ (See HKSAR v Lui Fui (unreported) CACC 237/2007 para 27).”[9]

22.  It is worthwhile noting the comments of Woolf LCJ in R v Rehman,[10] who warned of the dangers to the public of firearms and stressed that societal protection was a paramount consideration when sentencing offenders for unlicensed possession of firearms.  He said:

“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.” [11]

23.  He went on to remark that the mere possession of firearms can create dangers to the public and may result in a firearm going into circulation.[12]

24.  In Leung Kwok Chi, the defendant was a retired officer of the Correctional Services Department and a gun enthusiast, who was an active member of gun clubs in Hong Kong and affiliated with gun clubs overseas.  After the sudden death of his daughter, he immersed himself into his gun hobby and purchased arms and ammunition for practising and competitions.  He had represented Hong Kong in international shooting competitions and had won many awards.  The matter had come to the attention of the authorities because he accidentally fired a rifle that he was cleaning and injured himself.  He was originally sentenced to 18 months’ imprisonment for possession of one receiver assembly and a barrel, 8 silencers, 4 firearm barrels, 3 air guns, 2 revolvers, a pistol, a 38mm cartridge smoke yellow, a liquid CS cartridge, and 3,881 rounds of ammunition, which were all found variously located inside his public housing unit. 

25.  The sentence went on review before the Court of Appeal which in its judgment noted that the defendant was a gun enthusiast and was licensed to possess some arms and ammunition, but the quantities of the arms and ammunition seized exceeded what had been permitted.  The Court also considered the latent risk involved, as the arms and ammunition were not properly stored and were accessible to friends and relatives of the defendant and even burglars, thus posing a serious potential risk to the surrounding community. The Court considered that the proper starting point should be 5 years’ imprisonment, which resulted in a sentence of 30 months’ imprisonment for the defendant’s plea of guilty and other factors.

26.  It is worthwhile noting that there were special features in this case that clearly had a bearing on the sentence that was ultimately imposed on the defendant.  The Court accepted the personal circumstances of the defendant and his obsession for his gun hobby, but nevertheless went on to conclude that the offence called for a generally deterrent sentence, having remarked:

“53.   We accepted that most of the factors identified were in favour of the respondent.  We also accepted that when the offender was licensed to possess arms and ammunition which were kept in a safe place, but because the quantities of arms and ammunition exceeded the permission an offence was committed, it might well justify a more lenient sentence as the offender would be in a better position to properly keep the arms and ammunition as a licensed person, and the chance of them falling into the wrong hands would be less.  However, we did not agree with Mr Chan’s suggestion that just because the arms and ammunition were stored in the flat, the public could not have access to them.  The flat was certainly accessible to friends and relatives of the respondent and the arms and ammunition could be attractive to them.  A trespasser, such as a burglar, would also find the arms and ammunition in the flat very tempting.

54.  The respondent was in possession of a large quantity of serious and lethal weapons and, on the evidence and as found by the judge, they were not properly stored, but were scattered around a public housing unit, thus posing a serious potential risk to the surrounding community.  The risk of the unlicensed arms and ammunition falling into the hands of possibly undesirable people did exist.”

27.  Mr Cheung accepted that Leung Kwok Chi was a case with its own special features, but nevertheless argued that the cases the judge referred to in her reasons for sentence, in which starting points of terms of imprisonment of 11 or 12 years were affirmed, were cases where it was shown that there was an intended use of the firearm for an illegal purpose.  He stressed that this was not a feature in the present case. 

28.  Having analysed the facts of these cases, Mr Cheung went on to review Hu Quanwu, which he said was a case where this Court drew a distinction between cases where there was an intention to use the firearm for an unlawful purpose and where there was no such intention. He highlighted the following paragraphs of the Court’s judgment:

“19. Possession of arms and ammunition is viewed as an extremely serious offence in Hong Kong. In Attorney General v Li Kit-wai [1988] 2 HKLR 286, the Court of Appeal followed the approach laid down in Attorney General v Lai Shu-piu and held that the proper sentence on a plea of guilty for simple possession of a gun would be 6 years.

20. It is worthwhile to point out that in Attorney General v Li Kit-wai, the defendant’s explanation, as accepted by the court, was that he had been asked by a friend to look after the guns while the friend returned to China and he expected the friend to come back in due course and retrieve the guns from him. The defendant had a clear record and there was no indication that the defendant knew or expected the guns would be used for crimes.

21.   In Lai Shu-piu, Sir Alan Huggins, in giving the judgment of the Court of Appeal, having made reference to the 6-year sentence on a plea for ‘simple possession’ went on to say that where there is intent to use the gun for an unlawful purpose something in excess of 6 years is appropriate.” 

29.  Mr Cheung also referred to R v Szeto Chi-keung[13] where firearms and ammunition were found in various places in the defendant’s home for which a starting point of 10 years was adopted by the sentencing judge, and submitted that in comparison the applicant’s culpability was similar but less serious. 

30.  Finally, Mr Cheung contended that the judge did not query the mitigation advanced by the applicant that he was a gun enthusiast who kept the pistol and ammunition for his own pleasure, but instead only focused on the latent risk factor in her reasons for sentence.  Furthermore, the judge did not call for any Newton inquiry on the issue as to whether the applicant had an intention to use the pistol, and in any event, there was no evidence which suggested that the firearm would be used for an illegal purpose.  He submitted that in those circumstances this Court should set aside the sentence and impose one based on a version of the facts that was most favourable to the applicant.

The respondent’s submissions

31.  Mr Ivan Cheung, for the respondent, submitted that the sentence should be upheld.  He argued that the Court in Leung Kwok Chi  did not intend to lay down 6 years’ imprisonment as a starting point for all cases in which the arms and ammunition had neither been used, nor intended to be used by the offender for any crime.  He pointed out that the Court went on to stress in its judgment that such a sentence would depend on the nature of the items and the circumstances in which the offence was committed.  He distinguished the present case on the basis that the applicant (a) was never licensed to possess any firearm or ammunition; (b) was not a person of clear record and was found to be in possession of narcotic substances at the same premises where he possessed the firearm and ammunition; and (c) had left the firearm and ammunition in an easily accessible location on a farm, which were open premises.

32.  He submitted that the judge had correctly referred to the 12 years’ starting point as being in the nature of a tariff in respect of firearms and ammunition that were at the time of the offence in working order, and that only in appropriate cases may a sentencing judge decide to reduce the sentence below the tariff if there are “special features” as mentioned in Chan Hoi Ngam. 

33.  He argued that the applicant had no basis to contend that there was a “clear distinction” between the most serious cases that a sentencing guideline of 12 years’ imprisonment would apply to other cases which did not feature evidence of use or intended use of the firearm.  He submitted that the facts of the present offence put it into the serious category of offending, and although the firearm was not loaded it was kept with the bullets.  He further submitted that the applicant’s claim of being a gun enthusiast was irrelevant as a mitigating factor, and in any event, he kept the firearm in an unguarded location, which posed as a serious risk that it would be used by others.  He also pointed out that the applicant had past offences of the violent nature and of a triad association.

Discussion

34.  It is a sad fact of life that has proven to be true in the most tragic and horrific circumstances that a firearm in its various forms is a highly destructive and dangerous weapon that can kill and maim on a wide scale with relative ease and total detachment.  It is for this very reason that there are strict gun controls in Hong Kong where the possession of firearms and ammunition are regulated under a licensing system with certain statutory exceptions. 

35.  There are a range of offence provisions with severe penalties under the Firearms and Ammunition Ordinance, prohibiting the possession or use of arms (and imitation firearms) or ammunition.  Under section 13, any person in possession of arms or ammunition without a licence is liable to a fine of $100,000 and imprisonment for 14 years.  Under section 16, any person in possession of arms or ammunition with intent to endanger life is liable to imprisonment for life.  That same penalty applies to offences by a person who makes use of arms or ammunition when committing an offence or resisting arrest (under section 17), and carrying arms or ammunition with criminal intent (under section 18).  It is therefore clear that the legislature has imposed a maximum sentence of 14 years’ imprisonment for the offence under section 13 where a person is simply in possession of arms or ammunition without a licence.  For the more serious offences, where a person has in his possession arms or ammunition that is used or intended to be used to endanger life or for some other criminal purpose, the penalty is the maximum known to law of life imprisonment.

36.  It is important to have an appreciation of the definition of “arms” and “ammunition” as provided under section 2 of the Firearms and Ammunition Ordinance, which read as follows:

“‘arms’ (槍械) means—

(a) any firearm;

(b) an air rifle, air gun or air pistol from which any shot, bullet or missile can be discharged with a muzzle energy greater than 2 joules;

(c) any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person;

(d) any gun, pistol or other propelling or releasing instrument from or by which a projectile containing any gas or chemical could be discharged;

(e) any weapon for the discharge of any noxious liquid, gas, powder or other similar thing (including an aerosol containing any noxious liquid, gas, powder or other similar thing which is not in general trade or domestic use in aerosol form);

(f) any harpoon or spear gun, however powered;

(g) any other thing declared by the Chief Executive in Council in regulations made under section 52 to be within the definition of “arms” for the purpose of this Ordinance;

(h) a component part used or intended to be used for the discharge of a missile from any of the arms coming within the foregoing paragraphs, and any accessory to such arms designed or adapted to diminish the noise or flash caused by firing the same,

but does not include—

(i) Any ‘cartridge-operated fixing tool’ as defined in regulations relating thereto made under the Factories and Industrial Undertakings Ordinance (Cap. 59);

(ii)     any slingshot, catapult, bow or other similar weapon, unless the same is included by virtue of regulations referred to in paragraph (g).”

“‘ammunition’ (彈藥) means—

(a) ammunition for the arms coming within paragraphs (a), (b), (c), (d) and (g) of the definition of ‘arms’;

(b) ammunition containing, or designed or adapted to contain, any noxious liquid, gas, powder or other similar thing coming within paragraph (e) of the definition of ‘arms’;

(c) grenades, bombs and other like missiles (whether capable of use with arms or not), and fuses, percussion caps and priming caps therefor;

(d) a ‘cartridge’ as defined in regulations relating to cartridge-operated fixing tools made under the Factories and Industrial Undertakings Ordinance (Cap. 59);

(e) any thing declared by the Chief Executive in Council in regulations made under section 52 to be ammunition for the purposes of this Ordinance;

(ea) a shot, bullet, missile or any other part of an article which constitutes ammunition under paragraph (a), (b), (c), (d) or (e);

(f) any shell case or cartridge case,

but does not include—

a hand-grenade which can be used only for fire-fighting purposes;

a shot, bullet, missile, used or empty shell case or cartridge case, or any other part of an article which constitutes ammunition under paragraph (a), (b), (c), (d) or (e), which is used only as an article of personal, household, or office adornment,

unless the same is included by virtue of regulations referred to in paragraph (e).”

37.  In July 1984, the penalty provision under section 13 was increased from 10 to 14 years’ imprisonment.  The offence provision under section 13 is widely drawn and it provides that no person shall have in his possession any arms or ammunition unless they hold a licence for them.  The range of arms is extensive but clearly a firearm in working order and capable of discharging ammunition is one of the more serious prohibited items.  It has to be said that because of the breadth of the offence that there would be a wide variety of items or circumstances where a person may offend under this provision.

38.  It emerges from the authorities that, depending on the circumstances, a starting point of 12 years’ imprisonment after trial has been accepted as a sentencing guideline for the offence of possession of a firearm and ammunition without a licence.  

39.  It was in the early 1990s, a term of at least 6 years’ imprisonment after a plea of guilty was considered a guideline sentence for unlicensed possession of a firearm. 

40.  In R v Ho Chun,[14] the Court of Appeal urged, as a result of the spate of armed robberies which were then taking place, an upward revision of the previous firearms guideline case which had set “at least six years” as the appropriate sentence for a plea of guilty to the possession of arms and ammunition.  The Court indicated that it would unlikely interfere with a sentence of “at least eight years” in such cases.

41.  The sentencing approach in Ho Chun was endorsed in R v Au Yeung Wai-Kwong.[15]  In that case, the appellant claimed that he had bought the pistol and ammunition for self-protection from a loan shark but the Court upheld a sentence of 8 years’ imprisonment for this type of offence after a plea of guilty (with a starting point of 12 years’ imprisonment), and added:

“We reiterate that firearms offences are extremely serious and the message must be understood that those convicted of a firearms offences will receive a 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.”[16] (Emphasis added).

42.  There are obviously levels of seriousness for this offence.  This was addressed in R v Man Hung-pui,[17] where the Court of Appeal explained that possession of ammunition was a less serious matter than possession of a firearm, and that the possession of a loaded firearm would attract a heavier sentence than possession of a firearm without ammunition.  The Court further explained that possession of both an unloaded firearm and ammunition would call for a more severe sentence than that of possession of an unloaded firearm alone, while possession of ammunition was usually less serious than possession of arms. 

43.  In R v Yeung Hiu Shing,[18] the Court of Appeal referred to the case of R v Milhench,[19] which it noted was a most exceptional case, resulting in a sentence of 4 years and 6 months’ imprisonment, but nevertheless accepted that 12 years’ imprisonment was the correct starting point.  The Court reiterated that in simple cases of possession, 12 years’ imprisonment is an appropriate sentence after trial. 

44.  In Chan Hoi Ngam, the Court of Appeal stated that Hong Kong’s firearms sentencing policy had been designed to act as a strong deterrent to those with no right to have such weapons, and such persons clearly pose a danger to the public.  It was acknowledged that the cases which come before the courts vary enormously on their facts and this may warrant a departure from the normal starting point.  The Court also noted that 12 years’ imprisonment had been adopted as an appropriate starting point for the possession of a firearm and ammunition although there may be special features as mentioned in Milhench which enable the sentence to be reduced well below the normal tariff.  The Court went on to emphasise that a starting point of 12 years’ imprisonment would normally be appropriate for those who armed themselves with firearms in working condition and with ammunition available for use. 

45.  It seems clear that for a person in possession of a firearm with loaded ammunition or a firearm with ammunition capable of immediate use, a starting point of 12 years’ imprisonment would be appropriate. 

46.  In Chan Chi Fun, the Court of Appeal stated that it was a rule that the offence of possession of a firearm and ammunition would attract a severe and deterrent sentence, because such weapons pose a potential danger to society. The Court stated that in determining the appropriate sentence, the mitigating and aggravating factors included:

“(1) the types of firearm and ammunition involved;

(2) whether the defendant physically carries the firearm and ammunition;

(3) whether the firearm is loaded;

(4) whether the firearm has been used;

(5) whether the defendant intends to use the firearm for illegal purposes;

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

(7)   whether the defendant has a clear record.”

47.  The Court went on to emphasise that the level of sentence was dependent on the sentencing court’s view of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case, the defendant’s background, and the possibility of the arms and ammunition in question being used.[20] We would note, however, that an allegation that a defendant used or intended to use a firearm for an illegal purpose, may lead the defendant to being charged with the more serious offence under sections 17 and 18 of the Firearm and Ammunition Ordinance. 

48.  In light of the stringent gun control regime in Hong Kong, it is hard to imagine why a person would have an unlicensed firearm and ammunition in his possession, other than for them to be used for a criminal purpose.  A firearm with ammunition is a lethal weapon and a serious danger to the public.  It is for this reason, depending on the nature and quantity of the firearms and ammunition involved and the circumstances in which the offence was committed, that a starting point of 12 years’ imprisonment would be appropriate. 

49.  There are two aspects of the offence provisions in relation to arms and ammunition that we wish to highlight.  First, the breadth of the definitions of “arms” and “ammunition” which include in their most serious form a firearm under “arms”, and the ammunition for a firearm under “ammunition”.  Secondly, that the offence provisions are structured so that for simple possession of arms or ammunition without a licence, a maximum penalty of 14 years’ imprisonment is imposed, while for possession of the arms or ammunition that are used or intended to be used to endanger life or to commit a crime, a maximum penalty of life imprisonment is imposed. 

50.  As noted, a person convicted of being in possession of a firearm and ammunition without a licence is subject to a high starting point.  Whilst it has been said that an aggravating factor is the use of such a weapon to endanger life or to commit a crime, it should be appreciated that such criminal conduct may be covered by other offences to which a maximum penalty of life imprisonment is imposed.

51.  It needs to be appreciated that the courts have fixed a sentence guideline of 12 years’ imprisonment where the offender is in possession of a firearm together with ammunition which is but “a step away from its use”. 

52.  A firearm and ammunition with the potential to kill or maim a person is a lethal weapon which ranks high in the level of prohibited items under this offence.  A person convicted of possession of such a firearm and ammunition can normally expect a sentence after trial of 12 years’ imprisonment unless there are special features that would warrant a reduction.  

53.  It is argued on behalf of the applicant that the judge did not query the mitigation advanced by him that he was a gun enthusiast who kept the pistol and ammunition for his own pleasure, nor did she call for a Newton inquiry on the issue of whether the applicant had an intention to use the pistol.  It is commonly complained in sentencing appeals that the sentencing court did not address matters in mitigation or issues of fact that had been raised by the defendant.  It is noteworthy to refer to the comments of Stock JA (as he then was) in HKSAR v Yee Yiu Sam[21] on this subject:

“Where upon the delivery of a verdict or the entering of a plea of guilty to an offence, the verdict, or the plea, is consistent with more than one version, or suggested version, of facts underlying the verdict or plea, then it is for the sentencing judge to determine that factual basis, although in doing so he must not sentence on a basis which is inconsistent with the jury’s verdict, or contrary to the constituent elements of the offence to which that the defendant has pleaded guilty. The judge is not bound to accept whatever mitigation is advanced, nor is he bound to adopt the version most favourable to the defendant. Where, after a guilty plea, a version is put forward which is clearly implausible, then a judge is not bound to hear evidence; nor is he bound to do so where a choice between the two versions will make no practical difference to sentence. Otherwise, the sentencing tribunal should hear evidence to enable it to determine the proper factual basis for sentence. These principles emerge from a compendium of sources. See in particular Pt L2 ‘Current sentencing Practice’ by Professor Thomas; Archbold ‘Criminal Pleading Evidence and Practice’ 2002, para 5-9 et seq; Cheung v R [2002] 185 ALR 111; R v Olbrich [1999] 199 CLR 270; R v Isaacs [1997] 41 NSWLR 374. So, too, it seems clear, and in accordance with fundamental principle, that where a judge is invited to adopt a factual premise adverse to the interests of the defendant, he may do so only if he is sure that that is the proper and correct view of the facts to take; whereas it is for the defendant to establish, albeit not to the same degree, matters advanced in his favour. See Olbrich pp 280-281; Isaacs p 378D. I would add two further general principles which are touched by this appeal: that a judge is not generally bound to accept such factual basis for sentencing as is agreed between the prosecution and the defence: R v Myers [1996] 1 Cr App R(S) 187; and that the prosecutor should not lend himself to an agreement which is based upon an unreal and untrue set of facts: R v Beswick [1996] 1 Cr App R(S) 343.”[22]

54.  We consider that the circumstances in which the offence was committed by the applicant to be extremely grave.  He was operating a farm in the New Territories and was found to be in possession of a quantity of herbal cannabis together with a pistol and 13 bullets. 

55.  It was asserted on the applicant’s behalf that he found the pistol and the bullets some months prior to the offence and because of his military training back in the 1980s the discovery of these items rekindled his interest in guns.  No further inquiry was necessary to reject this assertion in mitigation.  It is far removed from common sense to suggest that after a period of over 20 years the applicant’s dormant interest in guns was suddenly awoken by the discovery of these items.  The pistol and the bullets were hidden away together and clearly ready to be used.  The applicant’s DNA was found all over the pistol and evidenced his handling of the weapon.  We consider that in relation to this offence there is practically little difference between a loaded pistol, and an unloaded one with ammunition at the ready.  In either case, the pistol is just “a step away from its use”.

56.  It is also not without significance that the applicant at the time of the offence had a significant haul of narcotic substances in his possession as well as the pistol and the bullets.

57.  We should add that we do not agree with the judge’s reliance on there being a latent risk that the pistol and the bullets would be accessible to others.  There was that possibility, but we did not consider it to be very high because the pistol and the bullets were hidden behind wooden planks of the hut.  However, far from being a mitigating factor that the pistol and bullets were not accessible to others as submitted on behalf of the applicant, we consider that the hiding of the weapon reveals the illicit use that the applicant had in mind for it.

58.  It is for the foregoing reasons that we are of the view the judge was correct to adopt a starting point of 12 years’ imprisonment in the circumstances of this case, which she reduced by one third for the applicant’s guilty plea to 8 years’ imprisonment. There being no other meaningful mitigation to warrant a reduction to the sentence, there is no basis for us to interfere with the term of imprisonment imposed on the applicant.

Conclusion

59.  It follows from what we have said that the application for leave to appeal against sentence is refused and the appeal is dismissed.

[1] Two prior convictions that stand out were in March 1994, when the applicant was bound over for 24 months for assaulting a police officer,and in July 1996, when he was sentenced to a total of 28 months’ imprisonment for blackmail and claiming to be a member of a triad society.

[2] [2006] 1 HKLRD 128.

[3] Appeal Bundle, 15C – M.

[4] [2000] 1 HKC 618.

[5] [2011] 4 HKC 331.

[6] [2011] HKCU 2309.

[7] Appeal Bundle, 16S – 17B.

[8] CAAR 6/2012, 18 April 2013, unreported.

[9] The quoted observations of Woolf LCJ are set out in paragraph 39 of the judgment.

[10] [2006] 1 Cr App R (S) 404.

[11] Ibid., at 409.

[12] Ibid., at 411.

[13] CACC 719/1995, 7 May 1996, unreported.

[14] [1992] 1 HKCLR 86.

[15] CACC 238/1994, 17 August 1994, unreported.

[16] Ibid., at paragraph 11.

[17] [1993] 2 HKC 174.

[18] CACC 339/1996, 8 May 1997, unreported.

[19] [1996] 1 HKC 628.

[20] At paragraph 19.

[21] [2002] 3 HKC 21.

[22] Ibid., at paragraph 37.