D pleaded guilty to a charge under s.17 of the Summary Offences Ordinance (Cap.228) of possession of an offensive weapon with intent to use it for an unlawful purpose and was sentenced to 4 months’ imprisonment by a Magistrate. The police were contacted after D was seen using an axe to knock the street railing on the road. When he was stopped by the police, he was holding a can of beer with the axe leaning on the railing beside him. D admitted that the axe was for self-defence, to protect himself from mobs who had just confronted him when he was clearing road obstacles. The Magistrate adopted a starting point of 7 ½ months, gave D a one-third discount for his guilty plea, and gave him a further discount of 1 month for his excellent background and clear record. D appealed against sentence, arguing that the Magistrate: (i) erred in considering the high risk of the weapon being used if D was attacked and the likelihood of it being taken away by unknown persons; (ii) erred in distinguishing the case of HKSAR v Chan So Ching  2 HKLRD 224; (iii) failed to consider the mitigation as a whole and other sentencing options; (iv) failed to give sufficient weight to the fact that D felt threatened; and (v) took a starting point which was wrong in principle and/or manifestly excessive.
Held, dismissing the appeal, that:
- The Magistrate’s finding that D was ready to use the axe as and when he felt necessary to do so was not flawed, and the Magistrate was entitled to take into account the matters he considered when assessing the risk involved in sentencing. (See para.25, 27.)
- There was no tariff for this offence, and each case must be decided on its own facts and context. Culpability was to be decided by reference to the defendant’s state of mind and other circumstances relevant to him. Comparisons with sentences passed in other cases could sometimes be misleading (HKSAR v Chan So Ching  2 HKLRD 224, HKSAR v Chan Yiu Shing  1 HKLRD 968 considered; HKSAR v Joof Saihou  3 HKLRD 456 applied). (See paras.14, 22, 31).
- In considering the sentence for an offence of this nature, the whole circumstances of the particular case must be taken into account. Very often the following matters were relevant: (i) the nature and size of the weapon; (ii) the potential harm it was capable of causing; (iii) the circumstances and intent of possessing the weapon; (iv) the quantity of the weapon; and (v) how it was possessed (whether it was concealed or easy to be used). (See para.36.)
- The offence was preventive in nature as the intention was to prevent members of the public from taking the law into their own hands by using violence and carrying offensive weapons in public places, and the public must be clearly informed of this legislative intent. (See paras.38–39.)
- The starting point of 7 ½ months imprisonment was within the reasonable range of sentence to be imposed in the circumstances of the case. The total discount of about 40% sufficiently reflected all the mitigating factors. The Magistrate’s decision against suspended sentence was proper and correct. This case was of such a severity that it would be unduly lenient to impose a community service order. The sentence imposed was not wrong in principle or manifestly excessive (R v Mark Andrew Brown (1981) 3 Cr App R (S) 294, Secretary for Justice v Lin Min Ying  2 HKLRD 823, HKSAR v Chou Yau-pun  4 HKC 309, HKSAR v Wan Ka Kit  3 HKLRD 9, Secretary for Justice v Wade Ian Francis (CAAR 1/2015,  HKEC 307) considered). (See paras.40–41, 46, 51, 53.)
Appeal against sentence
This was the defendant’s appeal against sentence of a charge under s.17 of the Summary Offences Ordinance (Cap.228) of possession of an offensive weapon with intent to use it for an unlawful purpose imposed by Mr Wong Sze-cheung in the Magistrates’ Court.