R. v. WONG PING

IN THE COURT OF APPEAL

1995, No.36

(Criminal)

___________

________________

J U D G M E N T

________________

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

1. The applicant in this matter pleaded guilty to a charge of possession of arms and ammunition without a licence and a charge of having arms and ammunition with intent to commit an arrestable offence.

2. The facts were that at about 8:55 p.m. on 21st March 1994 two police constables patrolling along Hennessy Road in Wanchi noticed, at the entrance of a restaurant, the applicant and another Chinese male who they thought might be illegal immigrants. They went forward to intercept them and the applicant, when asked to produce his identity card, ignored the request and pushed the police officer away. There was then a struggle during which the applicant was subdued. A black pistol, which had been in the applicant's possession, was on the ground. He was found to be in possession of three coils of wire. The pistol was a Type 54 automatic pistol 7.62 calibre of Chinese origin and was said by the police ballistic officer to be in good working order. It was a weapon which could have been used to deadly effect. Five rounds of live ammunition were in its magazine.

3. The applicant admitted that he brought the pistol to Hong Kong to protect himself and to make money.

4. The applicant, during the course of his arrest, was shot in the stomach and is now a paraplegic with a reduced life expectancy. The degree of seriousness of his incapacity could hardly be greater.

5. The part played by his pistol in the course of his arrest was not an agreed fact as the applicant was not prepared, because, it seems, of an intended civil action, to make any admission in that regard.

6. The trial judge when sentencing said:

"I consider that the sentence in WONG Shing-tung (Criminal Appeal No. 553 of 1989 (unreported)) in which the court had refused to interfere with a sentence of eight years of imprisonment after plea on the charge of possession with intent to commit an arrestable offence. The trial judge had in that case taken a starting point of ten years) should now be enhanced. This would also reflect the increasing prevalence of this type of offence in the intervening five years."

7. On the count of possession of firearms the judge followed The Queen v. Ho Chun [1992] 1 H.K.Crim.L.R. 86, a decision of this court, taking eight years after plea as the starting point. He reduced that sentence to six years because of the hardship which the applicant will suffer by reason of his injuries while confined in prison. As to the third offence, which involved intent, the judge, concerned by the increasing prevalence of this type of offence, took a starting point of 15 years. He reduced that by five years for plea and by two years for "the applicant's condition and the hardship it would impose upon him in prison" arriving at a sentence of eight years. He then ordered that the terms of six years and eight years be concurrent.

8. We note initially, and the trial judge seems to have been aware of this, that the acts complained of are really one offence. It was, we consider, undesirable to have charged the applicant and to have required him to plead both to a charge of possession of arms and a charge of possession of the same arms with intent. The third charge would have adequately covered the criminality involved.

9. While the judge's concern as to the prevalence of this type of offence was justified we do not consider it warranted a starting point of 15 years. We bear in mind that the applicant was carrying a loaded pistol in public but are, nonetheless, satisfied, that 12 years would have been a proper starting point. We are satisfied further that the plea of guilty, the applicant's condition and the hardship it will impose upon him in prison warrant a proportionately more substantial reduction that the trial judge was prepared to give. We are satisfied that this is a case of the kind referred to by Silke V.-P. in R. v. Chak Shui-chung [1987] H.K.L.R. 81 where he said, at 84:

"In the majority of cases the injured person has brought his misfortune upon himself and it is the criminal act which attracts the punishment, a punishment not lessened by virtue of damage to the perpetrator of that act while in the course of it.

But there are exceptions where the injuries are very serious. In our judgment this case is one. The loss of both arms is in itself both a deterrent to future criminal participation and a personal punishment of great severity. In our judgment, it would have been proper for the judge to properly reflect those factors in his sentence. In all the circumstances, we think a total sentence of five years' imprisonment to be sufficient to reflect the criminality of the Applicant and the public condemnation for the offences."

We are satisfied that the appropriate sentence, taking everything into account, would be one of five years.

10. The application will be allowed, it will be treated as the hearing of the appeal, the sentence of 8 years imposed by the trial judge on the third court will be varied to one of five years and the sentence of 6 years imposed on the first count will be reduced to one of four years. The sentences are ordered to be served concurrently.