A HCCC94/2010 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 94 OF 2010
C C
-----------------
D HKSAR D
v
E E
HU QUANWU (胡全五)
F ----------------- F
Before: The Honourable Madam Justice Beeson
G Date: 2 June 2010 at 9.58 am G
Present: Ms Memi NG Mee-wah, SPP of the Department of Justice,
for HKSAR
H H
Ms Barbara Cheng, instructed by Messrs
Christopher K Y Wong, assigned by the Director of
I Legal Aid, for the Accused I
Offence: Possession of arms and ammunition without a licence (無
牌管有槍械及彈藥)
J J
---------------------------------
K Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant pleaded guilty to one charge of Possession
of Arms and Ammunition without a Licence, contrary to
M M
section 13(1) and (2) of the Firearms and Ammunition
Ordinance, Cap 238. The maximumum penalty for that offence
N is 14 years’ imprisonment. N
On 18 November 2009, the police carried out an operation at
O the Casa Hotel in Mongkok specifically directed at the O
occupant of Room 1009, who was the defendant. A room had
been reserved for him there for four days from 14 to 18
P P
November 2009.
Q The police saw him leave the room and go to the lobby, where Q
they intercepted him. A search on him revealed nothing, and
he was taken back to his room, where a search warrant was
R executed. In the bottom of the wardrobe was a black handbag R
containing a small black packet. The packet contained a
plastic bag containing a silver-coloured pistol about
S S
6 inches long and a magazine which held three bullets. The
hammer was not cocked, but the magazine in the pistol was
T loaded with three rounds of ammunition. T
The particulars describe the arms and ammunition as a
U homemade self-loading pistol and three rounds of U
CRT18/2.6.2010/KS 1 HCCC94/2010/Sentence
V V
A 7.62 x 17 mm ammunition. The Forensic Firearms Examiner A
examined the gun and made a report about it. It was
described as a homemade, self-loading pistol capable of
B chambering 7.62 x 17 mm type 64 calibre ammunition for B
discharge, and traces of firing were not observed in the
barrel of the pistol.
C C
The pistol fell within the legal meaning of “firearm” in the
D Firearms and Ammunition Ordinance. The magazine was capable D
of storing ammunition in 7.62 x 17 mm type 64 calibre for
discharge in the seized pistol. A test firing of the pistol
E was successful. Two rounds were used in those tests. The E
ammunition fell within the legal meaning of “ammunition” in
the Firearms and Ammunition Ordinance.
F F
When arrested and cautioned, the defendant, a mainlander,
G said that it was a fellow countryman, “Ah Zhou”, who asked G
him to go down to Hong Kong to carry something. “He said he
would give me $8,000. I only knew it was a pistol
H afterwards.” H
I
Later, in a Video Interview, he explained how he had come to I
Hong Kong at the request of Ah Zhou to help him collect
something, although it was not specified what that was. He
J said he was in Hong Kong en route to Cambodia, where he J
intended to find construction work. Zhou had given him the
money to pay for a hotel room in Hong Kong, and they were to
K meet before the defendant travelled on to Cambodia. One or K
two days before coming to Hong Kong, Zhou had mentioned
L giving him $8,000 for his help in bringing something for L
Zhou.
M In Hong Kong, he had been contacted by a man called Li, M
claiming to be a friend of Zhou, on 17 November 2009. The
defendant arranged to meet him in a nearby park, and
N received from him the small black bag. He was told to take N
it straight back to the hotel, and did so. He put the black
O bag into his own travel bag in the hotel room. He said that O
at about 3.30 pm on 18 November 2009 he had opened the small
black bag and found the pistol inside. He was on his way to
P telephone a fellow countryman to talk about how best to P
handle the matter when he was arrested.
Q Q
On 19 November 2009 he voluntarily took the police to the
Yau Ma Tei Community Centre Rest Garden near Temple Street,
R and said that that was where Li had handed him the small R
black bag.
S The accused admitted and accepted that he was in possession S
of the homemade self-loading pistol and the ammunition
without a licence on 18 November 2009.
T T
The accused, who is a resident of the mainland, has no
U record in Hong Kong. He is aged 44. He is married, with a U
CRT18/2.6.2010/KS 2 HCCC94/2010/Sentence
V V
A wife and child, and also has an adopted daughter whom he A
adopted before his marriage.
B In mitigation I was advised that Zhou had asked him to B
collect the package. The 8,000 was to be deducted from the
$20,000 introduction fee that had been exacted for the job
C C
in Cambodia.
D The major mitigation in this case is the defendant’s plea D
of guilty.
E In considering sentence, I note that the circumstances in E
which the gun was brought into Hong Kong indicate that the
firearm was probably brought in to be used in a crime, or
F F
crimes, to be committed by a person or persons for whom it
was being carried.
G G
The defendant claims he did not know what he was carrying
initially, although it seems highly unlikely that he would
H have been entrusted with the care of a gun and ammunition H
and not told what he was carrying. In those circumstances,
I
the organisers risked his finding the weapon and reporting I
to police, or risked his panicking and dumping a wanted
weapon, a weapon which had been ordered perhaps by a
J customer or end user, and which would be difficult to bring J
into Hong Kong. To leave the gun in the possession of the
defendant without telling him what he carried risked the
K defendant entering a deal for the sale of the weapon on his K
own behalf.
L L
I note that the gun is described as a homemade weapon by the
Forensic Examiner. I note too that when test fired twice,
M it did not fall to pieces, and presumably could have been M
used again. I accept that there were no signs of it having
been fired, and I note from the Forensic Firearms Examiner’s
N report that the gun did not show up on the Forensic Firearms N
Examination Bureau Outstanding Crime Index.
O O
I have considered a number of cases dealing with firearms
and ammunition, all of which make it clear that Hong Kong
P has a “zero tolerance” attitude to firearms, and for that P
reason there is a heavy element of general deterrence in
sentences for such offences.
Q Q
This may not be the worst case of its type, but any sentence
R must take into account that this was a gun imported for what R
could only be a criminal purpose, a purpose that was
thwarted, or delayed, by the police intercepting the
S defendant. S
The basic guideline fixed from the time of R V. Ho Chun
T T
(1992) 1 HKCLR refers to an 8 year sentence after plea.
However, as explained in Ng Chun Keung CACC262/1992, the
U 8 years referred to in Ho Chun refer only to cases involving U
CRT18/2.6.2010/KS 3 HCCC94/2010/Sentence
V V
A unloaded firearms. Possession of a loaded firearm would A
attract a heavier sentence. Possession of an unloaded
firearm together with ammunition would call for a more
B severe sentence than the possession of an unloaded firearm B
alone.
C C
I note also that this gun was not kept in any safe place.
It was accessible to hotel staff and visitors to the room.
D D
In considering sentence, I take a starting point of
13 years. I give the defendant full discount for his plea
E of guilty. E
With a one-third discount, the sentence is 8 years and
F F
8 months, and that is the sentence I impose.
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT18/2.6.2010/KS 4 HCCC94/2010/Sentence
V V
A HCCC94/2010 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 94 OF 2010
C C
-----------------
D HKSAR D
v
E E
HU QUANWU (胡全五)
F ----------------- F
Before: The Honourable Madam Justice Beeson
G Date: 2 June 2010 at 9.58 am G
Present: Ms Memi NG Mee-wah, SPP of the Department of Justice,
for HKSAR
H H
Ms Barbara Cheng, instructed by Messrs
Christopher K Y Wong, assigned by the Director of
I Legal Aid, for the Accused I
Offence: Possession of arms and ammunition without a licence (無
牌管有槍械及彈藥)
J J
---------------------------------
K Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant pleaded guilty to one charge of Possession
of Arms and Ammunition without a Licence, contrary to
M M
section 13(1) and (2) of the Firearms and Ammunition
Ordinance, Cap 238. The maximumum penalty for that offence
N is 14 years’ imprisonment. N
On 18 November 2009, the police carried out an operation at
O the Casa Hotel in Mongkok specifically directed at the O
occupant of Room 1009, who was the defendant. A room had
been reserved for him there for four days from 14 to 18
P P
November 2009.
Q The police saw him leave the room and go to the lobby, where Q
they intercepted him. A search on him revealed nothing, and
he was taken back to his room, where a search warrant was
R executed. In the bottom of the wardrobe was a black handbag R
containing a small black packet. The packet contained a
plastic bag containing a silver-coloured pistol about
S S
6 inches long and a magazine which held three bullets. The
hammer was not cocked, but the magazine in the pistol was
T loaded with three rounds of ammunition. T
The particulars describe the arms and ammunition as a
U homemade self-loading pistol and three rounds of U
CRT18/2.6.2010/KS 1 HCCC94/2010/Sentence
V V
A 7.62 x 17 mm ammunition. The Forensic Firearms Examiner A
examined the gun and made a report about it. It was
described as a homemade, self-loading pistol capable of
B chambering 7.62 x 17 mm type 64 calibre ammunition for B
discharge, and traces of firing were not observed in the
barrel of the pistol.
C C
The pistol fell within the legal meaning of “firearm” in the
D Firearms and Ammunition Ordinance. The magazine was capable D
of storing ammunition in 7.62 x 17 mm type 64 calibre for
discharge in the seized pistol. A test firing of the pistol
E was successful. Two rounds were used in those tests. The E
ammunition fell within the legal meaning of “ammunition” in
the Firearms and Ammunition Ordinance.
F F
When arrested and cautioned, the defendant, a mainlander,
G said that it was a fellow countryman, “Ah Zhou”, who asked G
him to go down to Hong Kong to carry something. “He said he
would give me $8,000. I only knew it was a pistol
H afterwards.” H
I
Later, in a Video Interview, he explained how he had come to I
Hong Kong at the request of Ah Zhou to help him collect
something, although it was not specified what that was. He
J said he was in Hong Kong en route to Cambodia, where he J
intended to find construction work. Zhou had given him the
money to pay for a hotel room in Hong Kong, and they were to
K meet before the defendant travelled on to Cambodia. One or K
two days before coming to Hong Kong, Zhou had mentioned
L giving him $8,000 for his help in bringing something for L
Zhou.
M In Hong Kong, he had been contacted by a man called Li, M
claiming to be a friend of Zhou, on 17 November 2009. The
defendant arranged to meet him in a nearby park, and
N received from him the small black bag. He was told to take N
it straight back to the hotel, and did so. He put the black
O bag into his own travel bag in the hotel room. He said that O
at about 3.30 pm on 18 November 2009 he had opened the small
black bag and found the pistol inside. He was on his way to
P telephone a fellow countryman to talk about how best to P
handle the matter when he was arrested.
Q Q
On 19 November 2009 he voluntarily took the police to the
Yau Ma Tei Community Centre Rest Garden near Temple Street,
R and said that that was where Li had handed him the small R
black bag.
S The accused admitted and accepted that he was in possession S
of the homemade self-loading pistol and the ammunition
without a licence on 18 November 2009.
T T
The accused, who is a resident of the mainland, has no
U record in Hong Kong. He is aged 44. He is married, with a U
CRT18/2.6.2010/KS 2 HCCC94/2010/Sentence
V V
A wife and child, and also has an adopted daughter whom he A
adopted before his marriage.
B In mitigation I was advised that Zhou had asked him to B
collect the package. The 8,000 was to be deducted from the
$20,000 introduction fee that had been exacted for the job
C C
in Cambodia.
D The major mitigation in this case is the defendant’s plea D
of guilty.
E In considering sentence, I note that the circumstances in E
which the gun was brought into Hong Kong indicate that the
firearm was probably brought in to be used in a crime, or
F F
crimes, to be committed by a person or persons for whom it
was being carried.
G G
The defendant claims he did not know what he was carrying
initially, although it seems highly unlikely that he would
H have been entrusted with the care of a gun and ammunition H
and not told what he was carrying. In those circumstances,
I
the organisers risked his finding the weapon and reporting I
to police, or risked his panicking and dumping a wanted
weapon, a weapon which had been ordered perhaps by a
J customer or end user, and which would be difficult to bring J
into Hong Kong. To leave the gun in the possession of the
defendant without telling him what he carried risked the
K defendant entering a deal for the sale of the weapon on his K
own behalf.
L L
I note that the gun is described as a homemade weapon by the
Forensic Examiner. I note too that when test fired twice,
M it did not fall to pieces, and presumably could have been M
used again. I accept that there were no signs of it having
been fired, and I note from the Forensic Firearms Examiner’s
N report that the gun did not show up on the Forensic Firearms N
Examination Bureau Outstanding Crime Index.
O O
I have considered a number of cases dealing with firearms
and ammunition, all of which make it clear that Hong Kong
P has a “zero tolerance” attitude to firearms, and for that P
reason there is a heavy element of general deterrence in
sentences for such offences.
Q Q
This may not be the worst case of its type, but any sentence
R must take into account that this was a gun imported for what R
could only be a criminal purpose, a purpose that was
thwarted, or delayed, by the police intercepting the
S defendant. S
The basic guideline fixed from the time of R V. Ho Chun
T T
(1992) 1 HKCLR refers to an 8 year sentence after plea.
However, as explained in Ng Chun Keung CACC262/1992, the
U 8 years referred to in Ho Chun refer only to cases involving U
CRT18/2.6.2010/KS 3 HCCC94/2010/Sentence
V V
A unloaded firearms. Possession of a loaded firearm would A
attract a heavier sentence. Possession of an unloaded
firearm together with ammunition would call for a more
B severe sentence than the possession of an unloaded firearm B
alone.
C C
I note also that this gun was not kept in any safe place.
It was accessible to hotel staff and visitors to the room.
D D
In considering sentence, I take a starting point of
13 years. I give the defendant full discount for his plea
E of guilty. E
With a one-third discount, the sentence is 8 years and
F F
8 months, and that is the sentence I impose.
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT18/2.6.2010/KS 4 HCCC94/2010/Sentence
V V