IMO Attorney General's Reference No. 1 of 2023, and IMO of Section 3 and Section 30 of the Firearms Ordinance (as amended) (R v David O'Connor) (AG R 1 of 2023) [2024] TCACA 4 (29 February 2024)

In five separate cases within a two-year period each of the interested parties pleaded guilty to charges of possession of an unlicensed firearm and ammunition under the Firearms Ordinance CAP 18.09.  The judges found that there were “exceptional circumstances” and concluded that sentencing was therefore at large.  Four of the offenders were fined and one was given a custodial sentence below the mandatory minimum.  The Honourable Attorney General is of the view that the facts did not constitute exceptional circumstances and that in any event the Ordinance did not allow the imposition of non-custodial sentences.  In the absence of the right of the Crown to appeal in this jurisdiction the Attorney General has referred the matter to this court under the Attorney General’s Reference of Question Ordinance CAP215.

Held: Under the Firearms Ordinance CAP 18.09:

(1) Upon a finding of exceptional circumstances sentencing is not thereby at large.

(2) A judge has no jurisdiction under the Ordinance to impose a non-custodial sentence and the imposition of such a sentence is therefore wrong in principle.

(3) As to the determination of exceptional circumstances it is undesirable for this court to prescribe a set of facts that would constitute exceptional circumstances or are capable of constituting exceptional circumstances as it might unduly fetter the discretion of the judge, but a test for a set of circumstances which according to Rehman may be considered exceptional would be those which “if to impose five years’ imprisonment would amount to an arbitrary and disproportionate sentence” (Rehman at [16]). We approve that test. Within the legal framework of the TCI, and considering the obiter statements made in R v Merrion and R v Kelly , we would take the test for exceptional circumstances to mean “a set of particular and unusual circumstances that affect the offender or the offence and which in the opinion of the court justify it in not performing its statutory duty of imposing the mandatory minimum sentence. In forming that opinion the court must have regard to the dominant purpose of Parliament in enacting the section”.

(4) R v Aloysius Ebner (CR 45 of 2019) [2019] TCASC 3 was wrongly decided.