HKSAR v. YAU SIU KAI

CACC 148/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 148 OF 2000

(ON APPEAL FROM HCCC NO. 19 OF 2000)

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J U D G M E N T

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Wong JA (giving the judgment of the court) :

1. The applicant pleaded guilty before Nguyen J in the Court of First Instance to one count of possession of firearms and ammunition without a licence and was sentenced to imprisonment for 7 years. He applies for leave to appeal against the sentence on the ground that it is too severe.

2. The facts contained in a summary of facts were placed before the judge and admitted by the applicant. They were these. PW1 was a tourist from the Mainland. On 11 October 1999, he rented a bed space at the hostel which the applicant owned and operated. He paid $400 as rent for a period of 10 days. He requested to check out the next day and asked for the refund of $300. The applicant told PW1 that he would only give $200 back to him, which PW1 refused to accept. Another day passed by, PW1 returned to the applicant who was in his room, demanding again for the refund of $300. PW1 took $200 from the applicant but refused to forego the balance. At the time while in his room, the applicant was holding a pistol and demanded PW1 to leave.

3. Although PW1 thought that the pistol was not genuine, he nevertheless made a report to the police. The police visited the hostel on the same day and found the applicant who voluntarily led them to unearth the pistol from beneath the toilet cistern in the washroom. The pistol was loaded with 6 rounds of ammunition two of which having been expended. A further 3 live rounds of ammunition from a tool box at the hostel were also found under the direction of the applicant. The applicant admitted under caution that the pistol belonged to him, which he had purchased from Shenzhen about a month earlier for 300 Renminbi. He also admitted that he had converted the pistol for his personal admiration. He refused to disclose whether he had fired the pistol.

4. In a letter addressed to this Court and dated 28 August 2000, which serves as his grounds of appeal, the applicant made three points. Firstly, the barrel of the pistol was rusted and the breech would easily go wrong when it was struck. As the pistol had been altered from a toy gun or starting pistol in a very primitive method, there was no evidence to show the degree of harm that it could cause. Secondly, the pistol had been kept in his room and not in a public place. Thirdly, he drew a comparison between his case and the three decisions cited by Counsel for the Respondent in his written submission and argued that those cases were more serious than his. He repeated these points before us in court.

5. There is no substance whatsoever in the first two grounds which fly in the face of the admitted facts. The pistol and ammunition were examined by a ballistics expert, Dr. Leung Sai leung with these findings:

"The pistol was a converted revolver. A metal tubing was inserted into the barrel and the hammer and cylinder were replaced. The cylinder has a capacity for six rounds of ammunition. This conversion enabled the pistol to discharge .22" calibre ammunition. Test firing was successful. But the barrel was rusted and makes it difficult to determine whether it had recently been fired. The ammunition were found to be .22" calibre ammunition and suitable for use of the revolver."

6. It is clear that the pistol had undergone substantial alteration and was in working order at the time when it was seized at the hostel.

7. The three cases referred to in the Respondent's written submission were R v HO Chun [1992] 1HKCLR 86, R v Szeto Chi-keung CA 719 of 1995 (unreported) and HKSAR v CHAN Hoi-ngam, CA 243 of 1999 (unreported) all of which were decisions of this Court, differently constituted. We will start with Szeto Chi-keung because the applicant has relied heavily on it. Szeto pleaded guilty to one count of possession of five anti-riot pistols of Chinese origin and twenty-five shot cartridges suitable to be used with those pistols, all of which were found at different places at his home. The trial judge sentenced him to 5 years imprisonment, having taken a starting point of 10 years and this means that there had been a discount of 50%. The reason why he was given this very large discount was because when he was arrested he had given information which led to the arrest of another man and that he had been ready and willing to give evidence against the man at personal risk to his family. On appeal, the sentence was reduced to 3 1/2 years and the starting point to 7 years. Counsel who appeared for Szeto submitted that this was not an ordinary case which fell within the guidelines in HO Chun and furthermore that the trial judge failed to give sufficient weight to the background and co-operation of Szeto. Counsel in that case pointed out that those were not pistols in the ordinary sense but were anti-riot pistols firing ball bearings and were, therefore, not the normal type of pistols so often encountered in charges such as this. Although there were five pistols, this had come about because Szeto had felt that the offers made to him by the man in China were so attractive that he simply could not resist the temptation to purchase the pistols. In delivering the judgment of the Court, Power VP said:

"In our view it is a matter of very considerable weight that the Crown accepted that the applicant had no intention to use these weapons in any criminal enterprise. We have no doubt that the applicant, through naivety and, to a degree, stupidity, created a situation of extreme risk for the community. We are satisfied that it can properly be described as extreme risk because, as the judge said, no one could be sure that these weapons might not fall into the wrong hands and be used for illegal purposes.

The starting point must be assessed having regard to criminality involved. This is not, we say immediately, the sort of case that was being dealt with in The Queen v Ho Chun. It was clear that the court was there sentencing upon the basis of an admitted intention that the weapons were to be used for robbery......... There was, in the present case, no such intention.

Having given careful consideration to this case, we are satisfied that, in the unusual circumstances of this case, the judge was wrong to fix a starting point of 10 years."

8. The circumstances in Szeto which Power VP described as unusual are very different from the present case. Here, the applicant brought the pistol from Shenzhen, went through considerable labour and trouble to convert it into a more sophisticated and powerful weapon, he displayed it in front of a customer and left it openly at a place where people could get hold of it. It was also fully loaded with two of the six rounds of ammunition having been expended.

9. R v HO Chun [1992] 1HKCLR 86 has been regarded as a sentencing guideline in cases of possession of firearms and ammunition without licence. In that case, HO Chun was convicted after trial of one count of possessing a loaded 7.62 mm x 25 semi-automatic pistol, twelve live rounds of ammunition and two electronic stunning devices. He was sentenced to 10 years imprisonment. The defence was that HO Chun was holding the firearm and ammunition for safe keeping for a man called 'Ah Shing' who gave evidence for the prosecution that the purposes of having the guns in Hong Kong was to rob. There was evidence that the gun had been fired. The stun devices were, at the time they were found, not in working order. 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 eight years imprisonment after a plea of guilty.

10. In HKSAR v CHAN Hoi-ngam, CA 243 of 1999 (unreported), the applicant was sentenced to imprisonment for 7 years and 4 months after pleading guilty to one count of possession of firearms and ammunition. The judge took a starting point of 11 years. Chan was the proprietor of a company in Tsuen Wan. Police went to his office and found Chan carrying a self-loading pistol inside a holster which was tucked into his waist. The weapon was loaded with seven live 9 mm rounds. He told the police that it was for self-defence. In a briefcase in his office, police found an aerosol canister, a spare magazine containing a further six live rounds of 9 mm ammunition and a silencer. The canister contained CS gas. The items were all in working order. Chan admitted to the police that he had bought them in the mainland for $8,000. In dismissing the application for leave to appeal against sentence, Stuart-Moore VP made these observations:

"This was exactly the kind of case which merited a high starting point, and we would not have criticised the judge if he had adopted 12 years as the appropriate starting point. Such a starting point will normally be appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available for use."

11. There have been several other recent decisions of this Court, again differently constituted, besides those cited to us.

12. R v Milhench [1996] 1HKC 628 is an interesting case. M pleaded guilty to a charge of possession of a .22 revolver and 34 rounds of live ammunition. He was sentenced to imprisonment for four and a half years. He also pleaded guilty to another count of possession of a forged British passport for which he was sentenced to imprisonment for six months, to be served consecutively. Having rejected a lengthy mitigation advanced on behalf of M, the judge sentenced him on the basis that possession of the gun and ammunition were part of M's fantasies. It was accepted that the gun had been kept secure in the safe deposit box of a bank. The real point that could be made in mitigation, as Ching JA (as he then was) observed, was that the judge below accepted that the applicant had no intention of using the gun for the purpose of some violent criminal enterprise in Hong Kong. While leaving the sentence imposed by the trial judge undisturbed, the Court approved 12 years to be an appropriate starting point after trial and commented that the discount given to M was more than generous.

13. Sentences of 8 years imprisonment were upheld in R v Au Yeung Wai Kwong CACC 238 of 1994 and R v Yeung Hiu Shing CACC 339 of 1996. In the former case, Au Yeung was charged with one count of possession of firearms and ammunition. He pleaded guilty and was sentenced to 8 years imprisonment. The facts were that he was stopped by police officers in the lift lobby of a building and upon being searched he was found in possession of a 7.62 mm Russian military TT32 pistol with magazine and 7 rounds of 7.62 x 25 mm ammunition suitable for use in that pistol. The articles were wrapped in a newspaper and put inside a shoulder bag which Au Yeung was carrying. A test of the pistol by a ballistics expert revealed that its condition was poor and it would frequently jam after firing only one round. However, it was capable of discharging shots. He said that he bought the gun in Shenzhen for $5,000 for self-protection from a loan shark. The judge followed HO Chun and took a starting point of 12 years which he reduced to 8 years for plea. In delivering the judgment of the Court, Kaplan J said:

"Before this court today, Mr. Whitehouse has repeated the same points in mitigation. He emphasises that the gun was unloaded at the time although he concedes that there was ammunition with the gun. He relies on its poor condition and that the gun was required for self-defence. He also points to the maximum sentence for this offence being 14 years and that 12 years is very near the top of the range which would indicate that it was difficult to think of any other case which was quite as serious as this.

We agree entirely with the views expressed in Ho Chun. We reiterate that firearms offences are extremely serious and the message must be understood that those convicted of firearms offences will receive 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. In this case, the judge faithfully applied this Court's decision in Ho Chun. This Court considers that the sentence of 8 years' imprisonment for this offence after a plea of guilty is not one with which we think it proper to interfere. It is a high sentence but it is clearly not manifestly excessive."

14. In the latter case, Yeung was stopped by two police officers in the street and was found to have inside his jacket a Chinese double barrelled converted pistol in .22 calibre loaded with two rounds of ammunition suitable for its use. He was an illegal immigrant. He pleaded guilty before Gall J who, following the guidelines in Ho Chun, sentenced Yeung to 8 years imprisonment, having taken a starting point of 12 years. In dismissing the appeal, Mayo JA (as he then was) said:

"The sentence which was imposed was in conformity with cases in this category. Although the sentence imposed in R v Milhench was only 4 1/2 years it was a most exceptional case and the judge adopted 12 years as his starting point and this starting point was not the subject of criticism by the Court of Appeal.

One of the difficulties which has been encountered is that the sentence imposed in Ho Chun of 8 years was passed before it became customary to grant discount of one third on guilty pleas. This might create the impression that the correct starting point should be somewhere in the region of 10 years. It is now however clear from the judgment in Milhench that this Court has accepted that 12 years is the correct starting point."

15. Returning to the present case, Nguyen J, in the course of passing sentence, noted:

"The pistol had apparently been converted by you, according to what you'd told the police, and as a result, when you were arrested and the pistol was found, the pistol was in working order. The ammunition which was found by the police was also found to be suitable for use by that particular pistol. When the police found the pistol, it was hidden beneath the toilet cistern in the washroom, but it was loaded with six rounds of ammunition, two of which had been expended."

16. In a plea for leniency, the applicant placed before us a medical report from Tuen Mun Hospital in respect of a patient in the name of Leung Suk-ching whom he said was his wife. This report is fairly short and reads as follows:

"The above named lady was first referred to our Department since 31st January 1996.

2. She had history of poliomylosis since childhood.

3. Her left foot was run over by a vehicle in 1995 and resulted in the abrasion dorsum of left foot. And subsequently complicated by hypertrophic scar left foot.

4. She was treated conservatively with pressure garment and discharged from our clinic on 21st July 1997 after her condition becomes static.

5. Then Madam Leung again attended our clinic on 20th April 1999 because of right foot and calf pain.

6. Physical examination reviewed mild tenderness right knee and calf and tightness at tendoachilies. She was treated conservatively with non-steroidal anti-inflammatory drug and stretching exercise programme. She was then followed up on 19th May 1999, 21st July 1999, 20th September 1999, 20th December 1999 and 17th January 2000. The progress was slow and continued follow-up was recommended."

17. Even given the most generous considerations, the medical report is hardly evidence to form any basis for a plea of mercy to succeed. The illness suffered by Madam Leung is obviously not very serious and it is certainly not life threatening.

18. Possession of firearms and ammunition is an offence of the utmost gravity. The facts of this case are not much different from the other cases to which we have referred. The judge gave the applicant a generous discount when sentencing him to 7 years imprisonment instead of the usual 8 years. The applicant has no cause for complaint. We are unable to see any justification to depart from well-established sentencing principles in this type of cases. We are satisfied that the sentence of 7 years imposed by the judge is neither manifestly excessive nor wrong in principle.

19. The application is dismissed.