THE ATTORNEY GENERAL v. LAM WING KWONG

IN THE COURT OF APPEAL

1993, No. 6

Application for Review

Headnote

Criminal Law - Sentencing - Possession of imitation fire-arm contrary to section 18(1) Fire-arms and Ammunition Ord. Cap. 238 - Starting point 5-6 years' imprisonment - Chan Shut-yee C.A. 491/91 (6/5/92, unreported) dealing with overall sentence commented upon - Distinction between possession of genuine and imitative fire-arm merits difference of treatment despite maximum of life sentence in each case. Application for review dismissed.

IN THE COURT OF APPEAL

1993, No. 6

Application for Review

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J U D G M E N T

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Litton, J.A. delivering the judgment of the court:

1. This is an application for review of sentence, supported by a most helpful and comprehensive outline submission by Mr. Bruce for which we are grateful.

2. The sentence of 2 years' imprisonment on Lam Wing Kwong was imposed on 16 April 1992 in the High Court, when he pleaded guilty to one count of carrying an imitation fire-arm with intent to commit an arrestable offence contrary to section 18(1) of the Firearms and Ammunition Ordinance, Cap. 238. The maximum penalty on conviction on indictment for this offence is life imprisonment. It was increased from 14 years' imprisonment in 1984.

3. The offence was committed on 12 March 1992 when Lam, then 25 years of age, was the front passenger in a car which was driven slowly in Yaumatei and passed the same area several times. When the vehicle was eventually stopped and the occupants detained Lam was found to have in his possession an imitation Colt pistol. When subsequently questioned at the police station he said that the pistol was for his use in a robbery.

4. The judge in passing sentence said that he was following the guidance of the Court of Appeal in CHAN Shut-yee, Criminal Appeal No. 491 of 1991 (6/5/92, unreported), and said that a starting point of three years after a guilty plea was appropriate. In this regard the judge had erred because the court in CHAN Shut-yee was looking at the overall sentence when dealing with an offence under section 17(2) of the Firearm and Ammunition Ordinance; a sentence of three years having been imposed concurrent with one of eight years for robbery in that case. The Court of Appeal in Chan Shut-yee was concerned with the higher sentence of eight years and cannot be said to have indorsed in any way a starting point of three years as appropriate for the separate offence under section 17(2) of the Ordinance of possessing an imitation firearm used to commit an offence.

5. If guidance be sought from decided cases a better one might have been Wong Shing-tung Criminal Appeal No. 553 of 1989, 24 May 1990 (unreported) where the court was not concerned with any question of overall sentences and only one count of possession of fire-arm contrary to section 18(1) of the Ordinance was involved. There the gun involved was a loaded double barrelled converted "Seagull" starting pistol, capable of being used as a lethal weapon; a sentence of eight years after a guilty plea was considered appropriate. However there is a considerable distinction between a lethal weapon and an imitation fire-arm. Although, as was pointed out in NG Ka-ling [1989]1 HKLR 64 at 67D, the consequences for innocent parties where an imitation fire-arm is used in the course of robbery could still be very serious, the police perhaps not knowing that the weapon used was not real, the fact is that an imitation gun is not a lethal weapon. We do not overlook the fact that the legislature has in fact grouped imitation guns with real ones for the purpose of the offence under section 18(1); considerable emphasis must therefore be placed upon the ingredient of intent to use the fire-arm in the course of an arrestable offence: as to which this respondent Lam admitted he had.

6. Looking at the matter broadly, we are of the view that if the judge had taken a starting point of five to six years' imprisonment upon conviction after trial as his starting point, he would have been correct in his approach. What then are the consequences for this respondent Lam? There are present in this case strong mitigating circumstances which have been carefully summarised for us by Mr. Bruce in his outline. Lam was of good character with no previous conviction. After leaving school at 18 he had undergone training for four years as a skilled worker in silk-screen printing. He has a good family background and his mother is said to be much affected by these proceedings. The offence was wholly out of character and Lam has received a most favourable and sympathetic report by the Probation Officer. Lam had apparently got into financial difficulty by accepting responsibility for the gambling debts of others. Lam was at the time of the offence in employment and continued in employment when he was released on bail pending trial and was highly thought of by his employer. The gun in question of course was not genuine and could not have injured anyone, and Lam had made a full confession to the police after arrest.

7. If, giving him the benefit of the doubt and assuming a starting point of five years as appropriate, a sentence of two and a half years could not have been challenged on review. Here the sentence imposed by the judge was two years. Without in any way seeking to minimize the seriousness of this offence we feel that some considerable latitude should be given to the trial judge in exercising his judgment in imposing sentence, particularly, as in this case a relatively young person is involved. The difference between two-and-a-half years, a sentence which though on the side of leniency would have been unchallengeable, and one of two years is not such as merits interference by this court. By a fine margin this application for review is refused.