HKSAR v. CHEUNG SIK WAI, TERRY

CACC 373/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 373 OF 2009

(ON APPEAL FROM HCCC 135 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the reasons for judgment of the Court):

Introduction

1.  On 6 October 2009, the applicant (Cheung Sik-wai Terry) appeared before McMahon J in the High Court on an indictment consisting of the 1^st charge of possession of arms without a licence and the 2^nd charge of possession of an offensive weapon in a public place. The applicant pleaded guilty to the 2^nd charge, but not guilty to the 1^st charge. He was, however, convicted of the 1^st charge by a jury.

2.  On 16 October 2009, the judge sentenced the applicant to 11 years’ imprisonment on the 1^st charge and 4 months’ imprisonment on the 2^nd charge, with 2 months to run consecutively, making a total sentence of 11 years and 2 months. On 4 November 2009, the applicant applied for leave to appeal only against conviction in respect of the 1^st charge. The Court of Appeal (Cheung JA, Wright and Macrae JJ) dismissed his application on 15 July 2011 and handed down the reasons on 19 July 2011.

3.  On 28 July 2011, the applicant sought an extension of time to apply for leave to appeal against sentence. He did not explain the delay, but pointed out the factors that he considered justify a more lenient sentence.

4.  On 19 October 2011, we dismissed his application and indicated that we would hand down our reasons in due course. This, we now do.

The Facts

5.  At about 9 p.m. on 4 February 2009, the applicant drove his private car to Fat Tseung Street in Cheung Sha Wan. He alighted from the car and was arrested. The police, with his permission, searched his car and found a white cloth packet inside the right front mudguard. Before the packet was unwrapped, the applicant said to the police,

“I have rowed with somebody. For fear that someone may take revenge; I got the gun for protection. I have no intention of hurting anybody!”

6.  The white cloth packet was an unloaded 0.38 calibre revolver, which was in working order although it had not been fired. The applicant subsequently admitted that he had purchased the revolver for $3,000 Remnimbi from someone in the Mainland and that the revolver was delivered to him in Hong Kong. He said after paying for the revolver, he concealed it in his car. In subsequent interviews, the applicant gave further details of how he had obtained the revolver in Shenzhen and how he had intended to use it.

7.  The police also found a one-metre long iron bar in the boot of the applicant’s car. The applicant also claimed that the iron bar was to be used for self defence in case of a fight.

8.  The revolver and the iron bar were respectively the subject matters of the 1^st and 2^nd charge.

The Applicant’s Background

9.  The applicant, aged about 37 at the time of the offence, only received primary education. He had been a decoration worker, but was unemployed at the time of the offence. The applicant claimed to have to look after his 72-year old mother.

10.  The applicant had many previous convictions involving violence and dishonesty. There were also convictions in connection with the use of vehicles. In February 2004, the applicant was convicted of possession of arms and ammunition without a licence, and possession of a simulated bomb.

11.  The applicant suffered from post-concussion syndrome and had been an out-patient of the Kwong Wah Hospital neurosurgery clinic since November 2008. He complained of headache, dizziness and poor concentration. The suggestion was that he had a chronic condition of bipolar affective disorder.

The Judge’s Approach

12.  The judge, because of the nature of offences and his previous convictions, considered the applicant a danger to the community in Hong Kong. The judge emphasized that possession of revolver without a licence was a serious offence and took the view that a basic starting point for the 1^st charge should be 9 years even though the revolver had not been fired and was not loaded.

13.  The judge took the view that there were two aggravating factors, namely (1) that the revolver was imported into Hong Kong; and (2) that the applicant had previous convictions of possession of arms and ammunition, and possession of a simulated bomb.

14.  The judge did not consider the applicant’s mental condition a mitigating factor, and in the end, sentenced the applicant on the basis as he did to a total term of 11 years and 2 months.

Grounds of Appeal

15.  In his affirmation in support of his application, the applicant emphasizes the followings matters:

1. No bullet was found;

2. The gun was not put in a place where it could be easily obtained;

3. No evidence that I was about to commit the crime;

4. The gun bore no evidence [Fingerprint/DNA] that I had been in contact with it;

5. After examination, amunitions experts stated that the gun had not been fired; and

6. The gun was not made in China although it was bought from someone in the Mainland. Perhaps the gun was already in Hong Kong at the very beginning.

16.  The applicant complained before us that the judge had placed too much emphasis on his previous convictions. He asked us to pay greater regard to his mitigating factors.

Discussion

17.  Possession of arms and ammunition without a licence is always considered a very 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 license. 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. 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] HKC 427 and HKSAR v Chan Hoi Ngam [2000] 1 HKC 618.

19.  Sentences of eight years’ imprisonment on guilty pleas were also upheld in R v Au Yeung Wai Kwong (unreported CACC238/1994) and R v Yeung Hiu Shing (unreported CACC 339/1996) where the defendants were found to be in possession of loaded pistols.

20.  The matter was revisited in HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 and in head-note (1), it is stated:

“As a rule, this type of offence would attract a severe and deterrent sentence, for the reason that firearms and ammunition posed a potentially grave danger to the society. In determining the appropriate sentence, the mitigating or aggravating factors included:

(a) the type of firearm and ammunition involved;

(b) whether the defendant physically carried the firearm and ammunition;

(c) whether the firearm was loaded;

(d) whether the firearm had been used;

(e) whether the defendant intended to use the firearm for illegal purposes;

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

(g) 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.”

21.  The applicant, though not in physical possession of the revolver, hid it in his car and it was clearly easily accessible to him. The suggestion that the applicant only intended to use the revolver for self-defence could not reasonably be accepted. Whilst there was no evidence that the applicant was about to commit a crime with the use of the revolver, the inference that it was intended to be used for an unlawful purpose was irresistible.

22.  The applicant had rightly emphasized that the unloaded revolver was not found together with any ammunition and that it had not be fired. The judge clearly had such mitigating factors in mind. However, the fact that the revolver was in working order meant that it could be readily used with the provision of ammunition.

23.  As with any trans-border crime, the fact that the revolver was brought into Hong Kong from Shenzhen was rightly viewed as an aggravating factor. The judge was certainly right in saying that the applicant, in the light of his background and previous convictions, was a danger to the community in Hong Kong.

24.  An 11-year sentence for the 1^st charge on conviction after trial is not a lenient sentence. But we are not persuaded that it is manifestly excessive to justify interference by this court. The judge was entitled to add another 2 months on the 2^nd charge of possession of an offensive weapon. The total sentence of 11 years and 2 months on the two charges, on the fact of the case and the background of the applicant, is not manifestly excessive or wrong in principle.

25.  The application for leave to appeal against sentence out of time was therefore refused.