Section 20 of the Firearms and Ammunition Ordinance (Cap. 238)


1. The Bar in principle supports the proposed amendments
set out in the Consultation Paper.

2. The existence of this anomaly in the law is beyond
dispute. As early as in 1988 such an anomaly was already pointed out by
the Court of Appeal in The Queen v. Tong Yuen Magistracy Appeal No. 1258
of 1988, a referral from the then High Court. The Court of Appeal there
in clear terms pointed out that both offences created under Sections 20(1)
and (2) of the Firearms and Ammunition Ordinance were summary offences
only, and they could be tried in the magistracies and nowhere else. The
initial proceedings in the District Court were therefore declared to be
a nullity.

3. The case was sent back to the magistracy where on a
re-trial the Appellant was once again convicted. But this time the magistrate
was of the view that since Section 20(2) created a summary offence only,
he was at liberty to impose any sentence under 7 years, and that he enjoyed
power to impose an "extended sentence". The Court of Appeal
was adamant that it could not have been the intention of the legislature
to grant such a power to the magistrates, whose power of sentence was
curiously not restricted in case of summary offences. But given the wordings
of Section 20 the Court of Appeal was constrained to confirm that the
magistrate was not erroneous in his view. However, Hunter J.A. commented
in this way: "It does seem to us that that might be an amendment
worth considering."

4. The effects of this judgment appeared to have gone
unnoticed for a long time, because the prosecution continued to advise
for these summary offences to be tried in the District Court. A notable
example is HKSAR v. Ng Kin-kwok CACC No. 619 of 1998. There the Applicant
was an illegal immigrant who faced 2 charges, one of possession of an
imitation firearm and the other of remaining in Hong Kong without authority.
He pleaded guilty to both charges. Nobody had raised the matter concerning
the jurisdiction of the District Court to hear these charges. In the Applicant's
appeal to the Court of Appeal against sentence, where he acted in person,
nobody brought the Court's attention to the case of The Queen v. Tong
Yuen. It was simply assumed that the proceedings before the District Court
were not a nullity. Not only was the application for leave to appeal dismissed,
the Court of Appeal went on to say the followings in its judgment: "We
take the view that there is no merit whatsoever in this application. The
judge's sentences were wholly appropriate and the application is dismissed.
As there is no merit in this application, we shall order that three months
of the time spent by the Applicant in custody shall not count towards
his sentence."

5. A repetition of the same mistake was made in the prosecution
of another illegal immigrant for the same 2 offences in 2001. The case
was once more transferred to the District Court. As before this Appellant
pleaded guilty to both offences but appealed against sentence. Fortunate
for this Appellant, the Department of Justice then became aware of the
judgment of The Queen v. Tong Yuen and conceded the proceedings were a
nullity: HKSAR v. Oi San Kok Lo Oi Ho CACC No. 181 of 2001.

6. The Bar is of the view that an amendment to Section
20 is long overdue.

7. The first proposal of the Department of Justice is
to convert the Section 20(1) offence from a summary offence only to an
offence triable either way. The Bar supports this proposal, since this
proposed amendment would overcome the injustice exemplified by the difficulty
in transferring such cases to the District Court, and at the same time
retains flexibility in the prosecution for such an offence. The severity
of the offence is not affected by the proposal.

8. As to the second proposal, which is to convert the
Section 20(2) offence from a summary offence to an indictable offence,
again the Bar supports the proposal. The reason is that it is undesirable
to permit the magistrates to have a power to sentence a defendant to as
long as 7 years on the basis that it is a summary offence - the "extended
sentence." Such a power should best be left to the District Judges
or higher. For the same reason, it is not advisable to convert the offence
to an offence triable either way. At the same time the maximum sentence
of 7 years is left untouched by the proposal, which means the severity
of the offence is not affected one way or the other.

Hong Kong Bar Association

Dated 21 March 2003