ATTORNEY GENERAL v. CHAN CHI MEI-WAH

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J U D G M E N T

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Cons, V.P., delivered the judgment of the Court:

1. CHAN CHI Mei-wah (the "Defendant") pleaded guilty before Judge Daniell in the District Court to possessing a firearm without a licence, contrary to Section 13(1) of the Firearms and Ammunition Ordinance, Cap. 238, and was sentenced to two years' imprisonment. The judge observed that "but for her plea" he would have imposed a sentence of three years.

2. The firearm, an automatic pistol, was found hidden behind a shrine in one room of a flat opposite to that in which the Defendant lived in Boundary Street. It was loaded with seven rounds of live ammunition, in respect of which the Defendant pleaded guilty to a second charge under the same section. But as the sentence of one year's imprisonment which the judge imposed for that offence was ordered to run concurrently, the Attorney General has limited his application for review, which he brings with the leave of this Court, to the longer sentence alone.

3. The judge accepted that the Defendant had no intention to use the pistol herself, doing no more than keep it for her younger brother while he made a trip to China. In her cautioned statement, which was not before the judge but which we have had the advantage of seeing, she said she thought she would only need to keep it for a few days and had hidden the pistol in her own home; but when the younger brother did not return from China and could not be contacted there, her husband thought it prudent to hide the pistol somewhere outside. The couple had access to the room opposite for a short while in connection with a possible tenancy.

4. In 1985, in AG v. LAI Shu-piu, Application for Review No. 12 of 1985, unreported, dated 28th October'; 1965 this Court, having regard to legislation enacted the previous year, revised the sentencing guideline for offences of this nature, and indicated that:

"the proper sentence on a plea of Guilty for simple possession of a gun would be six years'."

5. That decision has not itself been reported, but it has been relied upon in R. v. LI Lit-wai (1988), 2 H.K.L.R., 286, and in other unreported decisions.

6. Miss Chainrai, who appears before us for the Defendant, does not contest that six years would have been a proper sentence in normal circumstances, but contends that in the particularly extenuating circumstances of the present instance the judge was justified in imposing only two. She refers to the facts that the Defendant is a married woman of 34 years of age, with a son aged 6 to 7; her husband is a welding worker, with a salary of only $7,000 per month; the couple have no relatives at all in Hong Kong, other than the Defendant's younger brother already referred to, and since the Defendant has been in prison her husband has been forced to take care as best as he can of the son alone; this means his taking the son to a nursery school every morning and collecting him later when returning from work; furthermore the Defendant is again pregnant, expecting her second child this coming month.

7. Mr. Thomas, in his Principles of Sentencing, Second Edition, p. 212, suggests that:

"A second exception to the principle that family considerations do not have mitigating effect is the case of an offender who is the mother of young children. While such circumstances by no means guarantee reduction or suspension of a sentence of imprisonment imposed for a grave offence, they may have some effect in relation to less serious offences."

8. He refers in a subsequent footnote to R. v. Parkinson 1976 (Current Sentencing Practice C4.2(d)) where a married woman of 24, with two small children aged 3 and 4, was sentenced to nine months' imprisonment for uttering a forged banknote which she had made by sellotaping together small strips taken from other notes in a process by which she created seven E5 notes from an original six. it was said that her absence was having an adverse effect, both mentally and physically, upon the children and that her husband had lost almost a stone looking after them, albeit with some help from the mother's sister. The court decided "in mercy" to reduce the sentence to one that would enable her almost immediate release "having regard the family difficulties which have arisen".

9. On the other hand the mere giving of birth in custody has not attracted like sympathy from the court. In R. v. Ouless and Ouless, 1986, Crim. L.R., 8702, a wife had pleaded guilty to five counts of robbery or attempted robbery. At the time of the trial she was pregnant and gave birth sometime after being sentenced to five years' youth custody: The court refused to reduce the sentence. The brief report indicates that although the fact that the Defendant had a young child could not be ignored, the treatment of the child was a matter for the Home Office. In the present instance the Defendant may keep her child with her until it reaches nine months, and thereafter, if necessary, may apply for it to remain until the age of 3: see Rule 21 of the Prison Rules.

10. Even though this court may have laid down general guidelines regarding particular offences, there is always room for the exercise of mercy. This was made clear in R. v. YAU Koon-yau, Application for Review No. 12 of 1984, unreported, 4th September, 1984:

"It is necessary for us from time to time to reassure judges and magistrates that, when tariffs are issued by this court, they are intended to be guidelines and not strait-jackets. There must always be room for a judge or magistrate to exercise mercy and to impose sentences well below the normal range if the circumstances of the case, in his view, justify such a course. So long as he makes it clear that he realizes what the correct scale of sentences is, and states why he has decided to impose a lesser sentence than is usual."

11. However it is a prerogative that must be exercised'' with caution. In LAM Hak-hung v. The Queen, Criminal Appeal No. 724 of 1972, unreported, 20th March, 1973, we find:

"The argument on behalf of the Appellant is, in effect, a plea in misericordiam on the ground of humanity. It is said that if the sentence of ten years' imprisonment which was imposed on the first Count and the fifth Count (being concurrent with the seven years' imprisonment on each of the other counts) is served in full then there is every probability that the Appellant will die in prison. Be that as it may, in our view this is not a matter with which this Court is concerned. It has been said time and time again that the courts cannot regard it as a matter of mitigation that a person is either very young or very old when he has embarked upon the manufacture of dangerous drugs or involved himself in trafficking in dangerous drugs. Otherwise, as so often does in fact happen, those who are inveigled into taking part in the manufacture and trafficking will be the lame, the halt, the blind, the young and the old - people who may have some ground for pleading for the mercy of the court if they are in fact arrested."

12. Similar views have been expressed with regard to couriers in the English cases of R. v. Aranah, 1982, 76, Criminal Appeal Reports, 190 and R. v. Hanouda, 1982, Criminal Appeal Reports (Sentencing), Vol. 4, p. 137.

13. We appreciate that there is in Hong Kong no trade in guns comparable to that in dangerous drugs. But nevertheless a similar danger must exist.   If it is ignored the unlawful holder of a gun who wishes to lessen the risk to himself or needs for some other reason to have it housed elsewhere will inevitably look to someone who is likely to arouse sympathy if apprehended.  Therefore in the balance which the court has to make between the mitigating factors and the need to deter persons from acepting possession of unlawful guns, particularly when loaded, the mitigating fators can carry little weight.  In our judgment, even exercising the greatest degree of clemencry that the public interest would permit, the least term of imprisonment appropriate to the present circumstances is five years.  Two years in manifestly inadequate.

14. We therefore grant the application, and allowing a discount as usual, set aside the sentence imposed below and replace it with a sentence of four years.