DCCC526/2011
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO.526 OF 2011
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HKSAR
v.
LUI Kam-wai
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Before: District Judge Douglas T.H. Yau
Date: 18 August 2011 at 10:07am
Present: Mr. Alex Ng, Counsel on Fiat for HKSAR
Mr. Mark Wei instructed by M/S David Lo& Partners,
assigned by DLA, for the Defendant
Offence: Possession of arms without a licence (無牌管有槍械)
Reasons for Sentence
1. The defendant faces one charge of Possession of arms without a licence,
contrary to s.131 of the Firearms and Ammunition Ordinance, Cap.238.
The arms in question is a portable stunning device2.
Facts
2. Police entered the home of the defendant upon execution of a search
warrant and found the stunning device in question, hanging casually by
the computer monitor in the living room. The defendant explained that
it was a friend of his who had asked him to keep it for him. The
defendant was promised a small amount of money in return for his
trouble. The defendant admitted that he knew that it was a stunning
device. The device had a power output of around 45,000 volts.
Previous convictions
3. The defendant has 11 previous convictions from 1986 to 2005, mostly
drug related offences with some relating to dishonesty. He however
does not have any similar convictions.
1 (1) No person shall have in his possession any arms or ammunition unless-
(a) he holds a licence for possession of such arms or ammunition or a dealer's licence therefor; or
(b) (Repealed 14 of 2000 s. 10)
(2) A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a
fine of $100000 and to imprisonment for 14 years. (Amended 59 of 1984 s. 2)
2"arms" (槍械) means-
(c) any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied
either with or without direct contact with that person;
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Mitigation
4. The defendant is 45. He is single but he had his girlfriend had been
living together for a long time and they have a 10 year old son. The
defendant’s mother is 78 years old.
5. The defendant is educated up to Form 3 level in Hong Kong. He has
been unemployed since 2001 and was on CSSA at around $1,800 per
month. In return for this CSSA, he is required to attend interviews with
the social welfare service to supervise his job finding progress. The
defendant will next attend such an interview on 31.8.2011.
6. Although the defendant has no fixed employment, he did work on a
casual basis as delivery worker and did report that to the social welfare
officer, as shown in the income sheet he filed with the officer.
7. As disclosed in the summary of facts, it was his friend ‘Ah Hung’ who
asked the defendant to keep the device in return for $500. The
defendant agreed to doing it because he was in financial difficulty and
was unable to resist the easy money. ‘Ah Hung’ told him he will retrieve
it in a few days or weeks.
8. The defendant received the device on 17.12.2010 and he was arrested
on 20.12.2010.
9. The defendant never used the device and had told his son and wife not
to touch it. The defendant pleaded guilty, indicating remorse. Only one
device was found, unlike other cases where other arms and
ammunitions were found. There is no evidence he had used or will use
it for illegal purpose.
10. The peak voltage not the lowest range, but it is also not in the highest
range either.
11. Counsel for the defendant referred the court to the case of HKSAR v Li
Hung Kwan, CACC 250/2002, where the Court of Appeal reviewed a
number of previous cases of possession of a stunning device and was of
the view that the length of sentence should be related to the voltage of
the device and whether the device had been or will be used for illegal
purpose.
Sentence
12. It is clear from Li Hung Kwan that in the circumstances that we
presently face, a sentence in the range of 20-24 months would be
appropriate.
13. In coming to my eventual sentence, I have noted that there is no
evidence to suggest that the device had been, or will be used for illegal
purpose, as well as the voltage of the stunning device. I have noted that
the defendant, although receiving CSSA, had been trying to work to
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support his family. I have noted that the defendant has no similar
convictions and that his latest conviction was back in 2005, more than
5 years ago.
14. Having considered the sentencing cases and the circumstances of this
case, I find that a starting point of 21 months’ imprisonment is
appropriate. I will grant the defendant the full one third discount for his
guilty plea and sentence him to 14 months’ imprisonment.
Douglas T.H. Yau
District Judge
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