HCCC181/2011
A HCCC181/2011 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 181 OF 2011
C C
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HKSAR
D D
v.
E Ng Chi-pong E
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F F
Before: Hon Saw J
Date: 22 July 2011 at 9.52 am
G Present: Mr Edward Joshua Brook, on fiat, for HKSAR G
Mr Ma Ka-fan, Henry, instructed by Messrs Fan Wong &
Tso, for the Accused
H Offence: (1) Possession of arms and ammunition without a licence H
(無牌管有彈藥)
I (2) Possession of a dangerous drug (管有危險藥物) I
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J Transcript of the Audio Recording J
of the Sentence in the above Case
K
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COURT: On 27 May of this year, this defendant appeared at the
L Eastern Magistrates' Court. He was there charged with two L
offences; the 1st charge being possession of arms and
ammunition without a licence, contrary to Section 13(1) and
M (2) of the Firearms and Ammunition Ordinance, Cap. 238. The M
2nd charge was possession of a dangerous drug, contrary to
N Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, N
Cap. 134. He pleaded guilty to both charges.
O A Summary of Facts in support of those charges was read in O
open court and agreed to by the defendant. As a
consequence, the magistrate then committed the defendant to
P this court for sentence. Today before me he has confirmed P
those pleas of guilty and also that Summary of Facts.
Q Q
The Summary of Facts reveals that on 19 October last year
the defendant entered Hong Kong at the Lo Wu Control Point
R at the border. He was selected for an examination by R
Customs officers. He was taken to the baggage examination
counter. An ion scan was performed and the result indicated
S S
a positive reading for dangerous drugs. Customs officers
therefore indicated to the defendant that he would be taken
T for a personal search. T
Having been advised of this, he told them, “I have a gun on
U me.” He was immediately arrested and cautioned and he U
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A repeated, “I have a gun on me.” He was searched. A pistol A
was found tucked into the waistband of his underpants. He
told the Customs officers that he had picked up the gun in
B the road in Shenzhen and had it for the purposes of play. B
The search continued and the defendant told the officers,
C C
“Sir, there are three bullets in the gun.” Subsequent
examination of the pistol revealed this to be correct. In
D addition to finding the loaded pistol hidden in the D
defendant’s underwear, the officers also found a chewing gum
packet which contained nine small pills. The defendant was
E asked what they were and he told them that it was valium. E
The particulars of the two charges alleged that he was in
F F
possession of arms and ammunition, namely, the loaded
firearm and also the nine pills which, upon subsequent
G analysis by the Government Chemist, were determined to G
contain the dangerous drug estazolam which I understand is a
form of sedative which is, however, capable of being abused.
H H
The pistol was examined by an expert forensic firearms
I
examiner. He found that it was a homemade self-loading I
pistol which was covered in a layer of rust and that is
apparent from the photographs now before me. It was capable
J of chambering 7.62 millimetre 64 calibre ammunition. The J
magazine was found to be capable of storing that particular
type of ammunition. It was fired under supervision of those
K officers and found to be in working order. The three K
bullets which were found in the pistol at the time the
L defendant was apprehended were determined to be capable of L
being fired in that pistol. Thus it was he was in
possession of arms and ammunition and he was so without a
M licence. M
The defendant is 41 years of age. He has a number of prior
N convictions dating back to 1998. Some of those are N
associated with dangerous drugs, including trafficking in
O dangerous drugs. On one previous occasion in the year 2005, O
he was found to be in possession of an offensive weapon in a
public place and I am told that the weapon on that occasion
P was a knife. He was last sentenced to be imprisoned on 24 P
July 2008. He was released from that term of imprisonment
on 28 June 2010; a matter of some four months before this
Q Q
offence was committed.
R On his behalf, Mr Ma has submitted that his instructions R
from the defendant are to the effect that he was not aware
that the pistol was capable of being fired. His
S instructions are that the defendant found this rusty pistol S
somewhere in the street in Shenzhen and that he had kept it
so that in the fullness of time he could remove the rust and
T T
keep it, in effect, as an object for collection.
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A Mr Ma submits that by reference to the appearance of the A
pistol it is supportive of the proposition that the
defendant advances that he was not aware that the pistol was
B capable of functioning. I have indicated to Mr Ma, in the B
course of his mitigation, that that submission flies in the
face of the fact that the defendant volunteered, when it was
C C
being examined, that there was ammunition in the pistol.
The defendant said, “Sir, there are three bullets in the
D gun.” With respect to Mr Ma’s submission, it was apparent D
from that, that the defendant was fully aware that the
pistol was capable of firing that ammunition.
E E
Other matters advanced by Mr Ma, however, are in favour of
the defendant, it is accepted that this gun had been
F F
examined by the forensic experts and was not linked in any
way to any offences that have previously been committed in
G Hong Kong. Nor was there any evidence that the defendant G
intended himself to use it for such a purpose. These are
matters I will take into account.
H H
The appropriate starting point for sentence for an offence
I
of this nature, I am satisfied, is governed by the I
observations of the Court of Appeal in R v Ho Chun which was
a reported decision in [1992] 1 HKCLR 86. In circumstances
J similar to those of this defendant, the Court of Appeal J
indicated that after a plea of guilty a sentence of 8 years’
imprisonment would be appropriate. By reference to the then
K discounts given for pleas of guilty it is apparent that a K
starting point of 12 years for possession of arms and
L ammunition without a licence, without any other significant L
aggravating factors, is appropriate. There have been a
number of observations of the Court of Appeal since that
M date which confirm that approach. In particular, I refer to M
the unreported judgment of the Court of Appeal in HKSAR v
Yau Siu Kai, a decision handed down on 26 February 2001
N which is CACC 148/2000. N
O I am satisfied in the circumstances of this case, bearing in O
mind the similarity of this offence with that of Ho Chun,
that a starting point for Count 1 of 12 years’ imprisonment
P is appropriate. As to the 2nd count, the amount of drugs P
involved was very small. The dangerous drugs concerned are
such that there is no sentencing guidance in respect of
Q Q
them. Nevertheless, bringing drugs into Hong Kong which are
prohibited is a serious offence. I am satisfied in the
R circumstances that a starting point for sentence of 6 weeks R
is appropriate. Given that the defendant has pleaded
guilty, a sentence of 4 weeks is in the circumstances the
S appropriate sentence. S
T T
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A A
Bearing in mind the totality principle, I will order that
that sentence be served concurrent to the sentence on the
B 1st count of 8 years’ imprisonment, thus it is that the B
total sentence is one of 8 years’ imprisonment.
C C
D D
E E
F F
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
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