R. v. MAN HUNG PUI

IN THE COURT OF APPEAL

1992, No. 222
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. This is the judgment of the Court.

2. MAN Hung-pui was convicted on his own plea of possession of ammunition without a licence and sentenced to imprisonment for four and a half years. He now applies for leave to appeal against sentence.

3. The admitted facts were that on 25 April 1990 a police party took him and his girl friend to their residence at 146-150 Pau Chung Street, 3/F, Block F. Using the keys found on him, the police entered the premises. In his room the police found six rounds of live 7.62 mm calibre ammunition. In a cautioned statement Man said the ammunition was picked up at a construction site. He was 17 years of age at the time.

4. Man's first criminal conviction was for robbery in 1985, and he was put on probation for 18 months. In 1986 he was again put on probation for having been convicted of five charges of theft. A month later, as a result of a conviction for possession of offensive weapon, probation was yet again ordered. His last conviction was in 1989 for unlawful sexual intercourse with a girl under 16 years of age, for which he was sentenced to imprisonment for 14 days and fined $1,000.

5. The learned trial judge called for a number of reports before passing sentence. These were: a Detention Centre Report, a Training Centre Report, and a Background Report from the Probation Officer. Man was found unsuitable for detention in a Detention Centre or a Training Centre.

6. In his Reasons for Sentence, the judge noted that the maximum sentence for this offence under Section 13 of the Firearms and Ammunition Ordinance, Cap. 238, is 14 years' imprisonment. He also observed that there must be, in a case such as this, a strong possibility that the live ammunition might have been used in the commission of very serious crimes. The judge accepted defence counsel's submission that the incidence of cases involving the use of firearms was somewhat lower in April 1990 than it was when Man was sentenced on 15 May 1992.

7. Adopting a starting point of "at least seven years", the judge took into account Man's youth, his plea of guilty and "other mitigating factors", and sentenced him to imprisonment for four and a half years.

8. It is argued before us on behalf of Man that possession of ammunition is a less serious offence than possession of a firearm, since, on the authority of The Queen v. NG Chun-keung (1992) Crim. App. No. 262 (unreported), the possession of a loaded firearm would attract a heavier sentence than possession of a firearm without ammunition, and the possession of both an unloaded firearm and ammunition would call for a more severe sentence than that for possession of an unloaded firearm alone. It is suggested that the starting point of seven years adopted by the trial judge is too high, and a proper starting point on a plea of guilty should be six years.

9. Counsel for the Crown urges this Court to take account of the type of ammunition in the present case, viz., it is capable of being fired by a pistol. It is also submitted that as the circumstances in which ammunition may be found in the possession of an accused vary greatly, it would not be helpful to attempt to set any guideline for sentence.

10. There is undoubtedly a dearth of decided cases which we may usefully refer to for the purpose of assessing the appropriate level of sentence for this type of offence. Doing the best we can, we must set our own level having regard to all the circumstances of the case.

11. We accept that possession of ammunition is usually less serious than possession of firearm. We also note that the ammunition in the present case is live and capable of being fired by a pistol.

12. As the circumstances in which this type of offence may be committed vary, we do not attempt to suggest any guideline for future cases. For the present case, the appropriate starting point should in our judgment be four years. Giving a discount similar to that allowed by the trial judge, namely, about one-third, we think a proper sentence is one of 32 months' imprisonment.

13. We allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. We set aside the sentence of imprisonment of four and a half years and substitute therefor a sentence of 32 months' imprisonment.