HKSAR v. LAU KWOK HUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1998, No. 551
(Criminal)

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J U D G M E N T

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Mayo J.A. (giving the judgment of the Court):

1. The Applicant pleaded guilty to being in possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238 before Judge Chua in the District Court. He was sentenced to 1 year imprisonment and now seeks leave to appeal against that sentence.

2. Police officers observed the Applicant to be carrying a plastic bag and acting in a manner which aroused their suspicions in Shanghai Street. They approached him and searched the bag. They found it to contain the items which are the subject of the charge namely a stun gun and an aerosol can containing capsaicin. The stun gun is of a type which can give an unpleasant electric shock to a victim which could possibly prove to be fatal if the person is suffering from certain medical conditions. Capsaicin is commonly referred to as 'mace'. This also can have a disabling effect as it can cause great pain and malfunctioning of the nervous system.

3. The Applicant immediately informed the police that he was unaware that it was contrary to the law to be in possession of such items and that the only reason for having them in his possession was to protect himself and his girlfriend from attacks. He had recently been a victim of a robbery in China. During the course of conducting his business in repairing antique Chinese furniture it was necessary for him to carry considerable sums of money and he was thus a vulnerable target for robbery attempts.

4. The judge obtained a probation report which seemed to indicate that the Applicant had had a rather troubled past in his personal life. He had not though been in any trouble with the authorities.

5. The 1st ground of appeal is that:

"1. The learned Judge failed to give any or sufficient consideration to the following matters:

(a) the Appellant possessed the stun gun and aerosol can for self-protection as he had previously been robbed in Mainland China and also for the protection of the Appellant's girlfriend.

(b) the Appellant did not intend to commit any crime within or outside Hong Kong with the aid/use of the stun gun or the aerosol can.

(c) the Appellant fully co-operated with the police.

(d) the Appellant was completely ignorant of the law.

(e) the Appellant's business would be completely destroyed upon an immediate or a lengthy immediate custodial sentence."

6. There is no merit in this ground. It is clear from the Judge's Reasons for Sentence that she gave careful consideration to all relevant matters.

7. Grounds 2 and 3 are as follows:

"2. The sentence is a deterrent one but the circumstances of the case and the personal background of the appellant do not warrant a deterrent sentence.

3. The learned Judge wrongly relied on R v Cheng Yu Cheung, unreported, Crim. App No. 57 of 1995 as having parallels to the Appellant's case."

8. Again there is no merit in these grounds. Inevitably a court will impose a deterrent sentence for an offence of this nature. R v. CHENG Yu-cheung was in many respects similar to the present case. The case may well have been of assistance to the Judge. The sentence imposed was neither manifestly excessive nor wrong in principle. The application is dismissed.