HKSAR v Tsiang On Yan [2019] 5 HKLRD 100

Lydia Leung (together with Eric TM Cheung, Solicitor Advocate) appeared for the applicant in the Court of Appeal in HKSAR v Tsiang On Yan [2019] 5 HKLRD 100.

D pleaded guilty to possession of a dangerous drug, namely 359.61 g of herbal cannabis (Count 1), and possession of arms and ammunition without a licence contrary to s.13 of the Firearms and Ammunition Ordinance (Cap.238) (FAO) (Count 2). In June 2016 police found on a farm, of which D was a tenant, the herbal cannabis inside a container hut; and a self-loading pistol of .45 Automatic Colt Pistol (ACP) calibre with a magazine and 13 rounds of live .45 ACP calibre ammunition in a bag under wooden planks inside a wooden hut. The pistol was half-cocked; in working order and capable of discharging a bullet; and had D’s DNA on it. At the time of sentencing, D was aged 54 with no similar previous convictions. He had received military training in the 1980s and was a gun enthusiast. D claimed that the discovery of the pistol on the premises about two months before the offence rekindled his interest in guns and he decided it to keep it, but neither carried nor intended to use it for an illegal purpose. The Judge noted that this was a serious offence involving a latent risk factor and a deterrent sentence was “absolutely necessary”. On Count 2, she adopted a starting point of 12 years, reduced it for plea to 8 years’ imprisonment and ordered it to run concurrently with a sentence of 2 months’ imprisonment on Count 1. D applied for leave to appeal against sentence, challenging the starting point on Count 2.

Held, dismissing the application, that:

(1) The unlicensed possession of firearms posed a danger to the public and societal protection was a paramount consideration. A deterrent sentence was generally required (HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, R v Rehman [2006] 1 Cr App R (S) 404, HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 applied). (See paras.22-23, 44, 46.)

(2) The maximum penalty for simple possession of firearms under s.13 of the FAO was 14 years’ imprisonment. A starting point of 12 years’ imprisonment after trial was appropriate for the possession of a firearm and ammunition without a licence, unless there were special features which would warrant a reduction. The Court would not likely interfere with a sentence of at least 8 years’ imprisonment on a plea of guilty for the unlicensed possession of a firearm (R v Ho Chun [1992] 1 HKCLR 86, R v Au Yeung Wai Kwong (CACC 238/1994, [1994] HKLY 401), R v Yeung Hiu Shing (CACC 339/1996, [1997] HKLY 402), HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, R v Milhench [1996] 1 HKC 628, HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, HKSAR v Hu Quanwu [2011] 4 HKC 331, HKSAR v Terry Cheung Sik Wai (CACC 373/2009, [2011] HKEC 1568) applied). (See paras.38-39, 43, 45, 48, 51-52.)

(3) The Judge was correct to adopt a 12-year starting point. The circumstances of the offence committed by D were extremely grave. The pistol and the bullets were hidden together and ready to be used. D’s DNA was all over the pistol and evidenced his handling of the weapon. There was practically little difference between a loaded pistol, and an unloaded one with ammunition at the ready. Either way, the pistol was just “a step away from its use”. D also had in his possession a significant haul of narcotics (R v Au Yeung Wai Kwong (CACC 238/1994, [1994] HKLY 401) applied. (See paras.41, 54-56, 58.)

(4) The possibility of a latent risk of the hidden pistol and bullets being accessible to others relied on by the Judge was not very high. However, this was not a mitigating factor and the hiding of the weapon reflected the illicit use that D had in mind for it. (See para.57.)

(The above headnote is taken from HKLRD.)

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