A A
DCCC535/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 535 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Fang Shanzhong
F F
----------------------
G G
Before: Deputy District Judge K H Cheang
Date: 22 June 2010 at 3.45 pm
H Present: Miss Monica Chan, PP of the Department of Justice, for H
HKSAR
Mr Kelvin Lam, of Messrs Yu & Associates, assigned by
I the Director of Legal Aid, for the Defendant I
Offence: Possession of arms without a licence (無牌管有槍械)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
M 1. The defendant is convicted upon his own plea of a M
charge of possession of arms without a license, contrary to
N section 13(1) and (2) of the Firearms and Ammunition Ordinance, N
Cap.238, Laws of Hong Kong.
O O
2. The particulars of offence read:
P P
“Fang Shanzhong, on the 3rd day of April, 2010, at
Baggage Check Point, Baggage Hall, L2, Terminal One
Q (Restricted Area), Hong Kong International Airport, Q
Chek Lap Kok, Lantau, in Hong Kong, had in his
R possession a quantity of arms, namely 20 stun guns, R
without a licence.”
S S
3. The facts admitted by the defendant reveal that on
3 April 2010, the defendant, a mainlander, went to Hong Kong
T T
International Airport in order to take flight number CX777 to
U Jakarta, Indonesia. U
CRT20/22.6.2010/SL 1 DCCC535/2010/Sentence
V V
A A
4. X-ray security screening of the defendant’s luggage
B B
revealed that there were articles like stun guns and adaptors
C inside. The case was therefore reported to the police who C
conducted a thorough search of the defendant’s baggage and found
D 20 stun guns and 20 adaptors inside. D
E E
5. Under caution, the defendant said that he intended to
take the stun guns to Jakarta for his friends.
F F
G 6. Subsequent examination of the stun guns by the Police G
Communications Office revealed that 19 of the stun guns were
H functioning properly with 15,220 volts to 81,050 volts output; H
and one of the stun guns was in malfunction.
I I
7. According to the defendant’s antecedent, he is now
J J
38 years old. He does not have any previous criminal record in
K
Hong Kong. He was born in Fujian. He worked as a farmer in K
Fujian and lived with his family members in Fujian.
L L
8. In mitigation, the defendant’s lawyer confirmed the
M defendant’s antecedent, but added that the defendant is a father M
of two daughters, one 16 and one 11.
N N
9. It was also submitted that the defendant came from
O O
Fujian the day before the defendant was arrested. The defendant
P then came to Hong Kong via Huanggang and proceeded to the Hong P
Kong International Airport direct. On the same day, the
Q defendant was arrested. Q
R R
10. Two letters were submitted to the court by the
defence. One of the letters was from an Indonesian company. It
S S
was stated in that letter that the defendant purchased 20 stun
T guns for that company for its security purpose. Another letter T
was from the defendant’s village committee saying that the
U defendant used to be a law-abiding citizen and had no previous U
CRT20/22.6.2010/SL 2 DCCC535/2010/Sentence
V V
A A
criminal conviction. It was stated in that letter that the
defendant went to Indonesia for business purpose and was
B B
entrusted to carry the stun guns to Indonesia.
C C
11. The defendant being a farmer, it puzzles me why he
D switched to do courier business, and indeed, international D
courier business, by carrying 20 stun guns from the mainland to
E E
Indonesia via Hong Kong.
F F
12. Nonetheless, for the purpose of this sentence, I am
G prepared to accept that the defendant was entrusted to bring 20 G
stun guns to Indonesia not for any illegal purposes.
H H
13. In mitigation, the defendant’s lawyer submitted three
I I
cases, the first being HKSAR v Li Hung Kwan CACC250/2002. The
other two cases are both Reasons for Sentence from the District
J J
Court. One is HKSAR v Lau Wai Hong DCCC479/2009, sentenced by
K
District Judge Whaley. The other is HKSAR v He Hong Lu K
DCCC950/2009, sentenced by Deputy District Judge G Lam.
L L
14. In HKSAR v Li Hung Kwan CACC250/2002, the defendant
M pleaded guilty to, inter alia, possession of arms, namely a stun M
gun which could generate 35,000 volts. The defendant claimed
N N
that he picked up the gun from a pile of rubbish at a
construction site four days prior to his arrest, and that he had
O O
not used it. On appeal, the Court of Appeal remarked that there
P was no evidence that the defendant had used the stun gun for P
unlawful purposes or intended to. The Court of Appeal considered
Q a starting point of 20 months’ imprisonment appropriate. Q
R R
15. In HKSAR v Lau Wai Hong DCCC479/2009, the defendant
pleaded guilty to one charge of possession of arms without a
S S
licence, namely a stun gun which could generate 87,000 volts.
T The defendant had 13 previous criminal convictions, including T
one previous conviction of possession of imitation firearms.
U District Judge Whaley considered the Court Of Appeal case in U
CRT20/22.6.2010/SL 3 DCCC535/2010/Sentence
V V
A A
HKSAR v Li Hung Kwan but adopted a higher starting point of
2½ years’ imprisonment because in DCCC479/2009, the defendant
B B
did contemplate using the stun gun during his robbery if the
C victim struggled. C
D 16. In HKSAR v He Hong Lu DCCC950/2009, the defendant D
pleaded guilty to two charges of dealing in arms without a
E E
licence, contrary to section 14 of the Firearms and Ammunition
Ordinance, Cap.238 of the Laws of Hong Kong. There were a total
F F
of 2,451 stun guns involved in that case. The output of those
G stun guns ranged from 20,700 volts to 48,040 volts. The G
defendant was the owner and person-in-charge of a transportation
H company. He had arranged for the relevant transportation H
companies to import the stun guns into Hong Kong without a
I I
licence, and then to export the same from Hong Kong to Andorra
without a licence. Deputy District Judge G Lam said he was
J J
prepared to distinguish DCCC950/2009 from other typical
K
“possession-of-stun-gun” cases. He said that the defendant there K
committed the offences probably due to his ignorance of the laws
L in Hong Kong. He remarked that the defendant as the owner and L
person-in-charge of a transportation company had the duty to
M ascertain the legality of his clients’ goods before shipping M
them anywhere, and that the defendant failed his duty of due
N N
diligence. Deputy District Judge G Lam considered the wrongdoing
of the defendant in DCCC950/2009 amounted to a technical breach
O O
of the relevant statutes. Deputy District Judge G Lam adopted a
P starting point of 7½ months’ imprisonment for each of the P
offences.
Q Q
17. In the present case, the defendant’s representative
R R
asked me to apply the decision in DCCC950/2009.
S S
18. Apart from the aforesaid three cases submitted by the
T defence, I have also conducted a research on the relevant T
authorities on sentence.
U U
CRT20/22.6.2010/SL 4 DCCC535/2010/Sentence
V V
A A
19. In the R v Lai Chi Fai CACC480/1995, the defendant was
charged with the offence of possession of a stun gun without a
B B
licence. The stun gun was capable of discharging 4,800 volts in
C the open air. The defendant claimed that the stun gun had been C
handed to him by his friend for pocketing four hours before his
D arrest. There was no evidence as to the use or intended use of D
that stun gun. The Court of Appeal considered a starting point
E E
of 4 years appropriate.
F F
20. In R v Wong Chuen Pong CACC579/1996, the defendant
G pleaded guilty to, inter alia, one charge of possession of a G
stun gun without a licence. The stun gun was capable of
H discharging 60,000 volts. The defendant was intercepted by the H
police when the defendant was sitting on a bench in the garden
I I
at Tsim Sha Tsui East in the early hours. Upon search, the
police found the stun gun on the defendant who said he had the
J J
stun gun for the purpose of self-defence. The Court of Appeal
K
confirmed the sentence of 2 years’ imprisonment after plea K
appropriate.
L L
21. In HKSAR v Yung Ting Chun CACC164/1999, the appellant
M was convicted of possession of arms without a licence. The M
appellant and his friend were intercepted by the police at
N N
Sassoon Road sometime in the afternoon. Upon search, a stun gun
was found from the rucksack being carried by the appellant’s
O O
friend. The stun gun was capable of producing 75,000 volts.
P There was no evidence that the stun gun would be used for any P
illegal purposes. The Court of Appeal confirmed the starting
Q point of 2½ years’ imprisonment. Q
R R
22. In HKSAR v Wong Wing Wong CACC214/2002, the appellant
pleaded guilty to possession of a stun gun which had a voltage
S S
of 20,000 volts. The appellant was arrested at the border
T checkpoint when the stun gun was found. He claimed that he T
bought the gun in the mainland, and the purpose for which he
U bought the gun was for self-protection because he had been U
CRT20/22.6.2010/SL 5 DCCC535/2010/Sentence
V V
A A
robbed in the mainland before. The Court of Appeal adopted a
starting point of 18 months’ imprisonment.
B B
C 23. In HKSAR v Fan Kwok Wai CACC264/2005, the defendant C
was convicted upon his own plea of, inter alia, possession of
D three stun guns without a licence. The three stun guns were D
located in a combination safe in the defendant’s bedroom. They
E E
were capable of discharging 20,403 volts, 10,000 volts and
13,623 volts. There was no evidence of any immediate intent by
F F
the defendant to use those stun guns. The Court of Appeal
G adopted a starting point of 3 years’ imprisonment. G
H 24. In HKSAR v Chik Lung Kong DCCC1249/2009, the defendant H
pleaded guilty to, inter alia, possession of six stun guns
I I
without a licence. The stun guns were capable of discharging
voltage which ranged from 28,894 volts to 72,446 volts. District
J J
Judge Geiser accepted that the defendant did not intend to use
K
any of the stun guns for any illegal purpose, but the judge K
remarked that the aggravating feature was the fact that the
L weapons could quite easily have ended up in the hands of persons L
who would use them for illegal purposes. District Judge Geiser
M adopted a starting point of 3 years in DCCC1249/2009. M
N N
25. As I have said earlier on, in the present case, I am
prepared to accept that the defendant was entrusted to bring 20
O O
stun guns to Indonesia not for any illegal purposes. On the
P other hand, this case involves 20 stun guns which could generate P
15,220 volts to 81,050 volts.
Q Q
26. There is no tariff for the offence of possession of
R R
stun guns. The starting point to be adopted has to be considered
in the light of the facts of each case. That said, a deterrent
S S
sentence by means of immediate custodial sentence is required
T for this type of offence. T
U U
CRT20/22.6.2010/SL 6 DCCC535/2010/Sentence
V V
A A
27. In this connection, I bear in mind the Reasons for
Sentence in DCCC950/2009, but I do not think the present offence
B B
is merely a technical breach of the relevant statute.
C C
28. Having considered the authorities decided by the Court
D of Appeal and all the relevant circumstances in the present D
case, in particular the fact that the defendant did not intend
E E
to use any of the 20 stun guns for any unlawful purposes in Hong
Kong or Indonesia, I am going to adopt a starting point of
F F
2½ years’ imprisonment.
G G
29. In light of the defendant’s guilty plea, I will give
H him the usual one-third discount. There being no other H
remarkable mitigation, the resulting sentence is 20 months’
I I
imprisonment.
J J
K K
K. H. Cheang
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/22.6.2010/SL 7 DCCC535/2010/Sentence
V V
A A
DCCC535/2010
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 535 OF 2010
C C
----------------------
D D
HKSAR
E v. E
Fang Shanzhong
F F
----------------------
G G
Before: Deputy District Judge K H Cheang
Date: 22 June 2010 at 3.45 pm
H Present: Miss Monica Chan, PP of the Department of Justice, for H
HKSAR
Mr Kelvin Lam, of Messrs Yu & Associates, assigned by
I the Director of Legal Aid, for the Defendant I
Offence: Possession of arms without a licence (無牌管有槍械)
J J
---------------------
K Reasons for Sentence K
L
--------------------- L
M 1. The defendant is convicted upon his own plea of a M
charge of possession of arms without a license, contrary to
N section 13(1) and (2) of the Firearms and Ammunition Ordinance, N
Cap.238, Laws of Hong Kong.
O O
2. The particulars of offence read:
P P
“Fang Shanzhong, on the 3rd day of April, 2010, at
Baggage Check Point, Baggage Hall, L2, Terminal One
Q (Restricted Area), Hong Kong International Airport, Q
Chek Lap Kok, Lantau, in Hong Kong, had in his
R possession a quantity of arms, namely 20 stun guns, R
without a licence.”
S S
3. The facts admitted by the defendant reveal that on
3 April 2010, the defendant, a mainlander, went to Hong Kong
T T
International Airport in order to take flight number CX777 to
U Jakarta, Indonesia. U
CRT20/22.6.2010/SL 1 DCCC535/2010/Sentence
V V
A A
4. X-ray security screening of the defendant’s luggage
B B
revealed that there were articles like stun guns and adaptors
C inside. The case was therefore reported to the police who C
conducted a thorough search of the defendant’s baggage and found
D 20 stun guns and 20 adaptors inside. D
E E
5. Under caution, the defendant said that he intended to
take the stun guns to Jakarta for his friends.
F F
G 6. Subsequent examination of the stun guns by the Police G
Communications Office revealed that 19 of the stun guns were
H functioning properly with 15,220 volts to 81,050 volts output; H
and one of the stun guns was in malfunction.
I I
7. According to the defendant’s antecedent, he is now
J J
38 years old. He does not have any previous criminal record in
K
Hong Kong. He was born in Fujian. He worked as a farmer in K
Fujian and lived with his family members in Fujian.
L L
8. In mitigation, the defendant’s lawyer confirmed the
M defendant’s antecedent, but added that the defendant is a father M
of two daughters, one 16 and one 11.
N N
9. It was also submitted that the defendant came from
O O
Fujian the day before the defendant was arrested. The defendant
P then came to Hong Kong via Huanggang and proceeded to the Hong P
Kong International Airport direct. On the same day, the
Q defendant was arrested. Q
R R
10. Two letters were submitted to the court by the
defence. One of the letters was from an Indonesian company. It
S S
was stated in that letter that the defendant purchased 20 stun
T guns for that company for its security purpose. Another letter T
was from the defendant’s village committee saying that the
U defendant used to be a law-abiding citizen and had no previous U
CRT20/22.6.2010/SL 2 DCCC535/2010/Sentence
V V
A A
criminal conviction. It was stated in that letter that the
defendant went to Indonesia for business purpose and was
B B
entrusted to carry the stun guns to Indonesia.
C C
11. The defendant being a farmer, it puzzles me why he
D switched to do courier business, and indeed, international D
courier business, by carrying 20 stun guns from the mainland to
E E
Indonesia via Hong Kong.
F F
12. Nonetheless, for the purpose of this sentence, I am
G prepared to accept that the defendant was entrusted to bring 20 G
stun guns to Indonesia not for any illegal purposes.
H H
13. In mitigation, the defendant’s lawyer submitted three
I I
cases, the first being HKSAR v Li Hung Kwan CACC250/2002. The
other two cases are both Reasons for Sentence from the District
J J
Court. One is HKSAR v Lau Wai Hong DCCC479/2009, sentenced by
K
District Judge Whaley. The other is HKSAR v He Hong Lu K
DCCC950/2009, sentenced by Deputy District Judge G Lam.
L L
14. In HKSAR v Li Hung Kwan CACC250/2002, the defendant
M pleaded guilty to, inter alia, possession of arms, namely a stun M
gun which could generate 35,000 volts. The defendant claimed
N N
that he picked up the gun from a pile of rubbish at a
construction site four days prior to his arrest, and that he had
O O
not used it. On appeal, the Court of Appeal remarked that there
P was no evidence that the defendant had used the stun gun for P
unlawful purposes or intended to. The Court of Appeal considered
Q a starting point of 20 months’ imprisonment appropriate. Q
R R
15. In HKSAR v Lau Wai Hong DCCC479/2009, the defendant
pleaded guilty to one charge of possession of arms without a
S S
licence, namely a stun gun which could generate 87,000 volts.
T The defendant had 13 previous criminal convictions, including T
one previous conviction of possession of imitation firearms.
U District Judge Whaley considered the Court Of Appeal case in U
CRT20/22.6.2010/SL 3 DCCC535/2010/Sentence
V V
A A
HKSAR v Li Hung Kwan but adopted a higher starting point of
2½ years’ imprisonment because in DCCC479/2009, the defendant
B B
did contemplate using the stun gun during his robbery if the
C victim struggled. C
D 16. In HKSAR v He Hong Lu DCCC950/2009, the defendant D
pleaded guilty to two charges of dealing in arms without a
E E
licence, contrary to section 14 of the Firearms and Ammunition
Ordinance, Cap.238 of the Laws of Hong Kong. There were a total
F F
of 2,451 stun guns involved in that case. The output of those
G stun guns ranged from 20,700 volts to 48,040 volts. The G
defendant was the owner and person-in-charge of a transportation
H company. He had arranged for the relevant transportation H
companies to import the stun guns into Hong Kong without a
I I
licence, and then to export the same from Hong Kong to Andorra
without a licence. Deputy District Judge G Lam said he was
J J
prepared to distinguish DCCC950/2009 from other typical
K
“possession-of-stun-gun” cases. He said that the defendant there K
committed the offences probably due to his ignorance of the laws
L in Hong Kong. He remarked that the defendant as the owner and L
person-in-charge of a transportation company had the duty to
M ascertain the legality of his clients’ goods before shipping M
them anywhere, and that the defendant failed his duty of due
N N
diligence. Deputy District Judge G Lam considered the wrongdoing
of the defendant in DCCC950/2009 amounted to a technical breach
O O
of the relevant statutes. Deputy District Judge G Lam adopted a
P starting point of 7½ months’ imprisonment for each of the P
offences.
Q Q
17. In the present case, the defendant’s representative
R R
asked me to apply the decision in DCCC950/2009.
S S
18. Apart from the aforesaid three cases submitted by the
T defence, I have also conducted a research on the relevant T
authorities on sentence.
U U
CRT20/22.6.2010/SL 4 DCCC535/2010/Sentence
V V
A A
19. In the R v Lai Chi Fai CACC480/1995, the defendant was
charged with the offence of possession of a stun gun without a
B B
licence. The stun gun was capable of discharging 4,800 volts in
C the open air. The defendant claimed that the stun gun had been C
handed to him by his friend for pocketing four hours before his
D arrest. There was no evidence as to the use or intended use of D
that stun gun. The Court of Appeal considered a starting point
E E
of 4 years appropriate.
F F
20. In R v Wong Chuen Pong CACC579/1996, the defendant
G pleaded guilty to, inter alia, one charge of possession of a G
stun gun without a licence. The stun gun was capable of
H discharging 60,000 volts. The defendant was intercepted by the H
police when the defendant was sitting on a bench in the garden
I I
at Tsim Sha Tsui East in the early hours. Upon search, the
police found the stun gun on the defendant who said he had the
J J
stun gun for the purpose of self-defence. The Court of Appeal
K
confirmed the sentence of 2 years’ imprisonment after plea K
appropriate.
L L
21. In HKSAR v Yung Ting Chun CACC164/1999, the appellant
M was convicted of possession of arms without a licence. The M
appellant and his friend were intercepted by the police at
N N
Sassoon Road sometime in the afternoon. Upon search, a stun gun
was found from the rucksack being carried by the appellant’s
O O
friend. The stun gun was capable of producing 75,000 volts.
P There was no evidence that the stun gun would be used for any P
illegal purposes. The Court of Appeal confirmed the starting
Q point of 2½ years’ imprisonment. Q
R R
22. In HKSAR v Wong Wing Wong CACC214/2002, the appellant
pleaded guilty to possession of a stun gun which had a voltage
S S
of 20,000 volts. The appellant was arrested at the border
T checkpoint when the stun gun was found. He claimed that he T
bought the gun in the mainland, and the purpose for which he
U bought the gun was for self-protection because he had been U
CRT20/22.6.2010/SL 5 DCCC535/2010/Sentence
V V
A A
robbed in the mainland before. The Court of Appeal adopted a
starting point of 18 months’ imprisonment.
B B
C 23. In HKSAR v Fan Kwok Wai CACC264/2005, the defendant C
was convicted upon his own plea of, inter alia, possession of
D three stun guns without a licence. The three stun guns were D
located in a combination safe in the defendant’s bedroom. They
E E
were capable of discharging 20,403 volts, 10,000 volts and
13,623 volts. There was no evidence of any immediate intent by
F F
the defendant to use those stun guns. The Court of Appeal
G adopted a starting point of 3 years’ imprisonment. G
H 24. In HKSAR v Chik Lung Kong DCCC1249/2009, the defendant H
pleaded guilty to, inter alia, possession of six stun guns
I I
without a licence. The stun guns were capable of discharging
voltage which ranged from 28,894 volts to 72,446 volts. District
J J
Judge Geiser accepted that the defendant did not intend to use
K
any of the stun guns for any illegal purpose, but the judge K
remarked that the aggravating feature was the fact that the
L weapons could quite easily have ended up in the hands of persons L
who would use them for illegal purposes. District Judge Geiser
M adopted a starting point of 3 years in DCCC1249/2009. M
N N
25. As I have said earlier on, in the present case, I am
prepared to accept that the defendant was entrusted to bring 20
O O
stun guns to Indonesia not for any illegal purposes. On the
P other hand, this case involves 20 stun guns which could generate P
15,220 volts to 81,050 volts.
Q Q
26. There is no tariff for the offence of possession of
R R
stun guns. The starting point to be adopted has to be considered
in the light of the facts of each case. That said, a deterrent
S S
sentence by means of immediate custodial sentence is required
T for this type of offence. T
U U
CRT20/22.6.2010/SL 6 DCCC535/2010/Sentence
V V
A A
27. In this connection, I bear in mind the Reasons for
Sentence in DCCC950/2009, but I do not think the present offence
B B
is merely a technical breach of the relevant statute.
C C
28. Having considered the authorities decided by the Court
D of Appeal and all the relevant circumstances in the present D
case, in particular the fact that the defendant did not intend
E E
to use any of the 20 stun guns for any unlawful purposes in Hong
Kong or Indonesia, I am going to adopt a starting point of
F F
2½ years’ imprisonment.
G G
29. In light of the defendant’s guilty plea, I will give
H him the usual one-third discount. There being no other H
remarkable mitigation, the resulting sentence is 20 months’
I I
imprisonment.
J J
K K
K. H. Cheang
Deputy District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT20/22.6.2010/SL 7 DCCC535/2010/Sentence
V V