THE QUEEN v. SO LAW CHUEN

IN THE COURT OF APPEAL

Criminal Appeal
No. 473 of 1987

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JUDGMENT

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Barker, J.A.

1. On 16th October 1987 we allowed an application for leave to appeal against sentence, treated the hearing of the application as the hearing of the appeal, set aside the sentence of 2 years' imprisonment which had been imposed on the appellant and substituted a sentence of 1 year's imprisonment suspended for one year. We now give our reasons.

2. The Appellant was a fisherman living in the New Territories on a raft at the Yim Tin Tsai Fish Culture Zone, and moored alongside was a fishing vessel, his only asset. Living with him were his wife, to whom he had been married for 16 years, and their three young children. He was a man of good character.

3. Some time in mid 1987 the appellant went to China and, properly according to Chinese law, bought 280 sticks of Amatol explosives, 261 detonators, and 90 metres of safety fuse, but improperly according to Hong Kong law, brought these explosives into Hong Kong and stored them partly on the raft and partly on the fishing vessel. These explosives were found by the Marine police on the 7th August 1987 when they searched the raft and vessel. The appellant tried to escape and in the ensuing struggle one police officer was pushed into the sea. However, the appellant was quickly subdued and the explosives were duly seized by the police. It was accepted by the Crown the only purpose for which the appellant possessed these explosives was to ply his trade as a fisherman, his intention being to convert them into fish bombs and use these bombs to stun or kill fish. It was further accepted by the Crown that the explosives could not be set off without a detonator and that at the time of the raid they were not so armed.

4. We were, very proper1y, informed by the Crown that offences of this nature are normally brought in the Magistrates Courts under s. 4 of the. Fisheries Protection Ordinance Cap. 171, the maximum sentence under that section and the Regulations made there under being $5,000 and 2 months' imprisonment. The extensive researches of Counsel both for the prosecution and the defence reveal that between 1983 and 1987 there were 22 prosecutions under s. 4, fines being imposed in each case varying between $200 and $2,000. Counsel were not able to inform us of the quantities of explosives involved.

5. The appellant, however, was not charged under the Fisheries Protection Ordinance but under section 55(1) of the Crimes Ordinance Cap. 200 in that he knowingly had in his possession explosive substances, the maximum sentence for which is 14 years' imprisonment. No doubt the Crown in charging the appellant under section 55(1) had in mind that the total weight of the explosives seized from the appellant was equivalent in explosive force to 21 kilogrammes of T.N.T.

6. The Court was informed that between 1983 and 1987, only one person was convicted under section 55(1), namely in the case of Reg. v. Lau Chi Man[1], who was sentenced to 1 year's imprisonment. In that case the accused was arrested in Percival Street. Causeway Bay. He had in his possession two bombs which were potentially lethal and were sensitive to friction and impact. That case was clearly different from the one with which we are concerned.

7. The possession of a large quantity of explosives without authority is a serious offence and the trial judge was right to take a grave view of it. However, in the particular circumstance of the present case, we are of the view that a sentence of two years' imprisonment was too severe.

8. We wish to make it clear that future offenders may not be so fortunate. The dangers of the possession and misuse of explosives are manifest and Courts must be astute to minimise them.