A A
DCCC723/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 723 OF 2011 C
----------------------
D D
HKSAR
E E
v.
F F
Yan Shen
G ---------------------- G
H Before: H H Judge Yau H
Date: 6 October 2011 at 9.35 am
Present: Ms Jennifer Fok, PP of the Department of Justice, for HKSAR
I I
Mr Graham Harris, SC, leading Mr S W Lee, instructed by Messrs
Haldanes, for the Defendant
J Offence: Possession of arms without a licence (無牌管有槍械) J
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. The defendant, Mr Yan Shen, pleads guilty to one count of possession
O of arms without a licence, contrary to section 13 of the Firearms and Ammunition O
Ordinance, Cap.238. The particulars of offence are that the defendant on the 18th
P P
day of May 2011 at the security check point, Departure Hall North (airside), Level
Q 7, Passenger Terminal 1, Hong Kong International Airport, Chek Lap Kok, New Q
Territories, in Hong Kong had in his possession arms, namely one pistol with
R R
magazine, without a licence.
S S
Facts Admitted
T T
2. At 2333 hours on 18 May 2011, when the defendant was departing for
U Seoul, Korea, at the Hong Kong International Airport, a pistol-like object was U
CRT34/6.10.2011/SY 1 DCCC723/2011/Sentence
V V
A A
detected by X-ray screening inside the rucksack carried by the defendant. The
B security staff could not locate the object, and with the help of the defendant, a B
black case containing a pistol with an empty magazine (“the firearm”) was taken
C C
out from a partition of the rucksack.
D D
3. Under arrest and caution by the police, the defendant admitted that the
E E
firearm was given to him by his classmate whom he was staying with in the United
F States of America, and he brought it with him when he came to Hong Kong in F
2002 not knowing that it was an offence to do so.
G G
H 4. In a subsequently conducted video recorded interview in the presence H
of his lawyer, the defendant admitted, inter alia, that when he was studying in a
I I
university in the United States of America, his classmate Matt who shared a flat
J with him gave him the firearm between 1988 and 1989 when Matt was unable to J
pay his share of the rent.
K K
L 5. The defendant shipped his belongings together with the firearm to L
Hong Kong when he came to work in Hong Kong in 2002, not knowing that it was
M M
illegal to do so. He kept the firearm for memorial purpose and had not used it.
N The firearm was kept in his residence, but as he moved to a hotel sometime last N
year, he placed it in his personal safe in his office.
O O
P 6. On 18 May 2011, he put the firearm into his rucksack and took it back P
to his new residence for safekeeping. He forgot about it when he proceeded on a
Q Q
business trip to Seoul, Korea, later the same night. He took the firearm to the
R airport and was detected during security check. R
S S
7. The firearm was found upon forensic examination to be an Egyptian
T Helwan M51 self-loading pistol of 9 x 19 mm calibre with a matching magazine. T
The firearm was found to be functional and test firing was carried out successfully.
U U
CRT34/6.10.2011/SY 2 DCCC723/2011/Sentence
V V
A A
8. The firearm is within the meaning of “arms” under the Firearms and
B Ammunition Ordinance, Cap. 238, and the defendant did not have nor was he B
exempted from holding a licence to possess it.
C C
D Criminal Record D
9. The defendant has a clear criminal record.
E E
F Psychological Reports F
10. The defence submits a psychological report on the defendant
G G
compiled by Dr Peter Lee who assessed the defendant on five occasions from 8
H June 2011 to 24 June 2011 for a total of 8½ hours. Dr Lee also interviewed the H
wife of the defendant separately.
I I
J 11. The background of the defendant is set out in the report. He was J
born in China and is the younger of two siblings. His parents were medical
K K
doctors and they both had very high demands on their children. He had an
L uneventful childhood. L
M M
12. At the age of 17, he was sent by his parents to further his studies in
N the United States. He experienced his dark years there as he had difficulty coping N
with his studies and the living in the United States. He was also financially tight
O O
and had no friends. He felt depressed, scared, insecure and miserable. Finding
P support in religion, he became a Christian at the age of 18. He finished college P
education in marketing and business administration with very good results in 1991,
Q Q
and he obtained a Master’s degree in 1998 while he was working.
R R
13. The defendant got married in 2001 and has three children, aged 8, 7
S S
and 5. He moved to Hong Kong in 2002 while working for Credit Suisse. He
T joined Deutsche Bank in 2006 and has achieved good career success. In 2008 his T
wife and children moved to Shanghai and the defendant visited them on a weekly
U U
basis. The marriage is described as being a good one, and the wife is supportive.
CRT34/6.10.2011/SY 3 DCCC723/2011/Sentence
V V
A A
14. The defendant took on investment sales job in the United States after
B graduating from college. The defendant regards himself as being weak in B
organization, indecisive and tends to put things off unless absolutely required. He
C C
was still able to move up the ranks and achieved a highly successful career because
D he had been making extreme efforts to overcome his weakness. D
E E
15. The defendant’s wife describes him as a person who attaches extreme
F value to things and can never throw anything away. He is extreme in F
procrastinating. He is mindful in spending and habitually buys fake brand
G G
clothing. He is mindful of his reputation and how others see him and is totally
H non-assertive. H
I I
16. Dr Lee sets out in the report of how the defendant came into
J possession of the firearm and how he took it to the airport which is in line with J
what the defendant told the police. The defendant completed a test of Minnesota
K K
Multiphasic Personality Inventory. Dr Lee is of the view that the defendant’s
L procrastination is compatible with the diagnosis of someone suffering from a L
dependent personality disorder with symptoms including having difficulty making
M M
daily decision and needing others to assume responsibility for major areas of his
N life. N
O O
17. Dr Lee is further of the view that the defendant’s possession of the
P firearm is attributable to his dependent personality disorder and the strong P
emotional attachment to things of the past, and that the defendant took the firearm
Q Q
to the airport because of poor awareness and lapse of attention. Dr Lee finds that
R the defendant is not a violent or dangerous person. He has advised the defendant R
to seek intensive psychological help.
S S
T 18. Dr Lee testifies in court and his testimony is in line with what he says T
in his report. According to a further report by Dr Lee, the defendant has received
U U
psychological treatment for six sessions of one hour each since the compilation of
CRT34/6.10.2011/SY 4 DCCC723/2011/Sentence
V V
A A
the psychological report and has made good progress. Mr Lee is of the view that
B the defendant is likely to make continued progress and is expected to have a B
positive and optimistic long-term prognosis.
C C
D 19. The court of his volition also obtains a psychological report on the D
defendant. The psychologist conducted tests of self-report inventory and sentence
E E
completion tests on the defendant and is of the view that the defendant has the
F maladaptive coping style in avoidance, submissiveness and suppression. F
G G
20. According to the psychologist, the defendant explained that he had
H committed the present offence because of his habit of deferment, special meaning H
of the gun, overwhelmed work stress and bad luck.
I I
J Psychiatric Report J
21. The defence also submits to court a psychiatric report on the
K K
defendant compiled by Dr Peter Wu who interviewed the defendant on 16 August
L 2011 for 40 minutes and on 18 August 2011 for half an hour. Dr Wu also L
interviewed the defendant’s parents on 18 August 2011.
M M
N 22. Dr Wu points out in the report that the defendant has a history of N
hypertension and irregular heart beat and was under great stress in his work. The
O O
sudden death of his mother-in-law who was close to him was also a shock to the
P defendant and all the family members. In the diagnosis of the defendant, Dr Wu P
states that he thinks the defendant had had symptoms characteristic of dependent
Q Q
personality disorder and adjustment disorder with anxiety.
R R
23. Dr Wu is of the view that the present offence is entirely attributable to
S S
the mental disorder of the defendant because he could not say no to the one who
T gave him the gun and procrastinated in deciding how to dispose of the gun. It is, T
in the view of Dr Wu, also due to the adjustment disorder of the defendant that he
U U
took the gun to the airport through a gross lapse of memory. Dr Wu points out
CRT34/6.10.2011/SY 5 DCCC723/2011/Sentence
V V
A A
that the defendant would not cause any risk or danger to society and recommends
B the defendant to continue with psychotherapy in an out-patient setting, saying that B
any custodial sentence would interrupt treatment, making it harder for the
C C
defendant to recover.
D D
Background and Community Service Order Suitability Reports
E E
24. The court obtains a background and a community service order
F suitability reports on the defendant. The contents of the background report are in F
line with those set out in the psychological report, and it is stated in the community
G G
service order suitability report that the defendant is a suitable person for
H community service order. H
I I
Mitigation
J 25. The senior counsel representing the defendant accepts in mitigation J
that the present offence inevitably attracts an immediate custodial sentence unless
K K
there are very exceptional circumstances. He, however, points out that there are
L such exceptional circumstances in the present case. He emphasizes that the L
defendant took the gun to the airport with no intention at all to take the gun on
M M
board of the flight he was taking.
N N
26. It is generally known that the security screening at the Hong Kong
O O
Airport is very tight and it is of no doubt that the defendant only took the gun to
P the airport through lapse of memory and attention. In this regard the senior P
counsel draws the attention of the court to the case of Chou Shih Bin v HKSAR,
Q Q
FACC11/2004, in which the Court of Final Appeal held that it was impossible for
R a person who was familiar with the standard security procedures at the airport to R
present his bag for security X-ray screening if he had the knowledge that there was
S S
an anti-riot handgun loaded with one round of ammunition inside the bag.
T T
27. The senior counsel explains that the travel and work schedules of the
U U
defendant were very hectic around the time of the offence. He intended to take
CRT34/6.10.2011/SY 6 DCCC723/2011/Sentence
V V
A A
the gun home for safe custody after he had secured a permanent residence in Tai
B Kok Tsui but forgot that the gun was still inside his rucksack when he went to the B
airport to go to Seoul, Korea.
C C
D 28. The senior counsel also points out that the defendant co-operated fully D
with the police at the airport once the gun was detected. The senior counsel
E E
stresses that there is no evidence that the gun had ever been or was to be used for
F crimes or intended to be so used. There was no ammunition in the defendant’s F
possession. Although the magazine was present, the gun has not been fired for 20
G G
years.
H H
29. The senior counsel tells the court about the background of the
I I
defendant and how he came into possession of the gun and taking the gun to the
J airport. They are in line with what the defendant told the police and those set out J
in the various reports.
K K
L 30. The senior counsel also submits to court a statement of Mr Matt L
Schoeb explaining how he gave the gun to the defendant for his share of rent back
M M
in 1989.
N N
31. The gun was shipped to Hong Kong with the belongings of the
O O
defendant in 2002 when he came to work in Hong Kong. The senior counsel
P
agrees that the defendant should have surrendered the gun or disposed of it. The P
defendant did not do so because he, as diagnosed by Dr Peter Lee, the
Q Q
psychologist, is suffering from dependent personality disorder which is
R
characterised, inter alia, by his procrastinating character and sentimental R
attachment to possession of things. The senior counsel goes on explaining to court
S S
the details of the opinion of Dr Lee.
T T
32. The senior counsel says that while the defendant was in possession of
U the gun, he kept the gun in safe custody, not even his wife was aware of the U
CRT34/6.10.2011/SY 7 DCCC723/2011/Sentence
V V
A A
existence of the gun. He has never intended to use the gun for any illegal
B purpose. There is no latent risk of the gun falling into wrong hands. It is always B
the intention of the defendant to plead guilty to the offence which reflects in the
C C
remorsefulness on his part.
D D
33. Apart from calling the psychologist to give evidence, the defence also
E E
calls Mr Zhang Yichen, the chief executive officer of Citic Capital, as the
F defendant’s character witness. Mr Cheung has known the defendant for 8 years F
and their families often had social gatherings since they have children of about the
G G
same age. He says that the defendant has an impeccable business reputation and
H is the most honest person he has ever known. He is of the view that the defendant H
is not a violent person and he was shocked when he learned about the offence.
I I
He points out that the defendant is remorseful for what he had done.
J J
34. The senior counsel also submits to court a number of mitigation
K K
letters. The authors of the letters all express a good opinion of the defendant
L saying that he is an honest and trustworthy person. They all ask the court to treat L
the defendant leniently.
M M
N 35. The senior counsel submits to court for reference the High Court case N
of R v Hirai Hilrotsugu, HCCC30/1995, in which Duffy J fined a defendant who
O O
was a fanatic collector of firearms for the possession of an arsenal of World War II
P weaponry. P
Q Q
36. The senior counsel asks the court to impose a community service
R order and if the court is minded to impose a custodial sentence, the sentence should R
be one of a short duration.
S S
T Sentence T
37. Possession of a firearm without a licence is a very serious offence.
U U
The maximum penalty is one of 14 years’ imprisonment and a fine of $100,000.
CRT34/6.10.2011/SY 8 DCCC723/2011/Sentence
V V
A A
Of course such penalty is reserved for the most serious type of such offence. It is
B common sense that firearms if fallen into wrong hands could cause tremendous B
harm to society. That explains why the courts in Hong Kong have always taken
C C
the offence of possession of firearms without licence very seriously.
D D
38. There are ample authorities saying that a sentence of 6 years’
E E
imprisonment for simple possession of a gun is not the least excessive, and then a
F higher sentence is warranted if there is evidence that the gun is intended for illegal F
purpose.
G G
39. The sentencing exercise in the present case, the court must confess, is
H H
not an easy one. Here I have before me a man of unblemished and impressive
I record and is highly successful in his banking career. He, however, stands I
convicted of a very serious offence.
J J
K 40. I accept that the defendant had possessed the firearm without any K
intention to use it for any illegal purpose and he has all along taken great
L L
precaution to keep the firearm in safe custody to make sure that it did not fall into
M wrong hands. I am convinced that the possession of the firearm by the defendant M
did not pose a risk or danger to society. I also accept that the defendant did not
N N
surrender the firearm or dispose of it because of his procrastinating character and,
O O
more importantly, his sentimental attachment to the firearm which he regarded, in
P
the words of Dr Lee, as a memento of an important stage in his life. P
Q Q
41. I accept the view of Dr Lee that these are symptoms of the dependent
R
personality disorder which the defendant laboured under at the time of the offence. R
The defendant is now receiving treatment from Dr Lee and is making good
S S
progress.
T T
42. One thing, however, which troubles the court is that the defendant
U U
took the firearm into Hong Kong intentionally. He gave the excuse that he did
CRT34/6.10.2011/SY 9 DCCC723/2011/Sentence
V V
A A
not know it was an offence in Hong Kong to do so. The court finds this totally
B incredible. He was aged 24 when he came to Hong Kong. He is a well educated B
man and is extremely successful in his career, it is impossible that he did not know
C C
it was an offence to possess a firearm in Hong Kong let aside taking it into Hong
D Kong from another country. D
E E
43. As the court has already pointed out, the court is of the view that the
F defendant has never had the intention to use the firearm for any illegal purpose. F
Then the court has to ask the question: why should the defendant bring the firearm
G G
to Hong Kong? Having considered the whole circumstances of the case, the court
H is of the view that the only conclusion is that he was driven to do so by a H
compulsive desire to keep the firearm as, again in the words of Dr Lee, a memento
I I
of an important stage of his life.
J J
44. What the defendant did is no doubt an extremely stupid act and could
K K
be the result of a psychological disorder. I have now before me various reports of
L the defendant. Having considered all these reports and the circumstances of the L
case, the court considers that the sentencing options in the present case include an
M M
immediate custodial sentence and a non-custodial sentence including a suspended
N sentence and a fine. A community service order is of course also a sentencing N
option.
O O
P 45. The court must say that the present case is very similar to the case of P
R v Hirai Hilrotsugu dealt with by Duffy J. Similar to the defendant in that case,
Q Q
the defendant in the present case is a psychologically sick person who requires
R treatment. He is receiving treatment and is making good progress. The court R
accepts the view of Dr Wu that interruption in the treatment of the defendant may
S S
make him more difficult to recover.
T T
46. Having considered the strong mitigating factors and the special
U U
circumstances of the present case, the court has decided against an immediate
CRT34/6.10.2011/SY 10 DCCC723/2011/Sentence
V V
A A
custodial sentence. The court of course cannot lose sight of the serious nature of
B the case, particularly the intentional act of the defendant taking the firearm into B
Hong Kong from the United States. It is of no doubt that the defendant has to be
C C
punished by the law for his illegal act.
D D
47. The court is convinced that the defendant requires psychological
E E
treatment to help him reform. The court considers that allowing the defendant to
F reflect on his misdeeds through voluntary community work for society and at the F
same time to receive the necessary psychological treatment is in the best interest of
G G
society and justice and is the most appropriate sentence in the present case. The
H court therefore makes an order that the defendant is to perform 240 hours of H
community service order. The defendant is to continue to receive psychological
I I
treatment while performing this order.
J J
48. As pointed out by the defence counsel, this is not a soft sentencing
K K
option because a number of authorities including the statutes creating this
L sentencing option all say that community service order is equivalent to a term of L
imprisonment.
M M
N 49. To make sure that the offence bears more strongly and deeply in the N
mind of the defendant, as a warning for him not to breach the law again, the court
O O
also imposes a fine of $50,000.
P P
Q Q
R H H Judge Yau R
District Court Judge
S S
T T
U U
CRT34/6.10.2011/SY 11 DCCC723/2011/Sentence
V V
A A
DCCC723/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO. 723 OF 2011 C
----------------------
D D
HKSAR
E E
v.
F F
Yan Shen
G ---------------------- G
H Before: H H Judge Yau H
Date: 6 October 2011 at 9.35 am
Present: Ms Jennifer Fok, PP of the Department of Justice, for HKSAR
I I
Mr Graham Harris, SC, leading Mr S W Lee, instructed by Messrs
Haldanes, for the Defendant
J Offence: Possession of arms without a licence (無牌管有槍械) J
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. The defendant, Mr Yan Shen, pleads guilty to one count of possession
O of arms without a licence, contrary to section 13 of the Firearms and Ammunition O
Ordinance, Cap.238. The particulars of offence are that the defendant on the 18th
P P
day of May 2011 at the security check point, Departure Hall North (airside), Level
Q 7, Passenger Terminal 1, Hong Kong International Airport, Chek Lap Kok, New Q
Territories, in Hong Kong had in his possession arms, namely one pistol with
R R
magazine, without a licence.
S S
Facts Admitted
T T
2. At 2333 hours on 18 May 2011, when the defendant was departing for
U Seoul, Korea, at the Hong Kong International Airport, a pistol-like object was U
CRT34/6.10.2011/SY 1 DCCC723/2011/Sentence
V V
A A
detected by X-ray screening inside the rucksack carried by the defendant. The
B security staff could not locate the object, and with the help of the defendant, a B
black case containing a pistol with an empty magazine (“the firearm”) was taken
C C
out from a partition of the rucksack.
D D
3. Under arrest and caution by the police, the defendant admitted that the
E E
firearm was given to him by his classmate whom he was staying with in the United
F States of America, and he brought it with him when he came to Hong Kong in F
2002 not knowing that it was an offence to do so.
G G
H 4. In a subsequently conducted video recorded interview in the presence H
of his lawyer, the defendant admitted, inter alia, that when he was studying in a
I I
university in the United States of America, his classmate Matt who shared a flat
J with him gave him the firearm between 1988 and 1989 when Matt was unable to J
pay his share of the rent.
K K
L 5. The defendant shipped his belongings together with the firearm to L
Hong Kong when he came to work in Hong Kong in 2002, not knowing that it was
M M
illegal to do so. He kept the firearm for memorial purpose and had not used it.
N The firearm was kept in his residence, but as he moved to a hotel sometime last N
year, he placed it in his personal safe in his office.
O O
P 6. On 18 May 2011, he put the firearm into his rucksack and took it back P
to his new residence for safekeeping. He forgot about it when he proceeded on a
Q Q
business trip to Seoul, Korea, later the same night. He took the firearm to the
R airport and was detected during security check. R
S S
7. The firearm was found upon forensic examination to be an Egyptian
T Helwan M51 self-loading pistol of 9 x 19 mm calibre with a matching magazine. T
The firearm was found to be functional and test firing was carried out successfully.
U U
CRT34/6.10.2011/SY 2 DCCC723/2011/Sentence
V V
A A
8. The firearm is within the meaning of “arms” under the Firearms and
B Ammunition Ordinance, Cap. 238, and the defendant did not have nor was he B
exempted from holding a licence to possess it.
C C
D Criminal Record D
9. The defendant has a clear criminal record.
E E
F Psychological Reports F
10. The defence submits a psychological report on the defendant
G G
compiled by Dr Peter Lee who assessed the defendant on five occasions from 8
H June 2011 to 24 June 2011 for a total of 8½ hours. Dr Lee also interviewed the H
wife of the defendant separately.
I I
J 11. The background of the defendant is set out in the report. He was J
born in China and is the younger of two siblings. His parents were medical
K K
doctors and they both had very high demands on their children. He had an
L uneventful childhood. L
M M
12. At the age of 17, he was sent by his parents to further his studies in
N the United States. He experienced his dark years there as he had difficulty coping N
with his studies and the living in the United States. He was also financially tight
O O
and had no friends. He felt depressed, scared, insecure and miserable. Finding
P support in religion, he became a Christian at the age of 18. He finished college P
education in marketing and business administration with very good results in 1991,
Q Q
and he obtained a Master’s degree in 1998 while he was working.
R R
13. The defendant got married in 2001 and has three children, aged 8, 7
S S
and 5. He moved to Hong Kong in 2002 while working for Credit Suisse. He
T joined Deutsche Bank in 2006 and has achieved good career success. In 2008 his T
wife and children moved to Shanghai and the defendant visited them on a weekly
U U
basis. The marriage is described as being a good one, and the wife is supportive.
CRT34/6.10.2011/SY 3 DCCC723/2011/Sentence
V V
A A
14. The defendant took on investment sales job in the United States after
B graduating from college. The defendant regards himself as being weak in B
organization, indecisive and tends to put things off unless absolutely required. He
C C
was still able to move up the ranks and achieved a highly successful career because
D he had been making extreme efforts to overcome his weakness. D
E E
15. The defendant’s wife describes him as a person who attaches extreme
F value to things and can never throw anything away. He is extreme in F
procrastinating. He is mindful in spending and habitually buys fake brand
G G
clothing. He is mindful of his reputation and how others see him and is totally
H non-assertive. H
I I
16. Dr Lee sets out in the report of how the defendant came into
J possession of the firearm and how he took it to the airport which is in line with J
what the defendant told the police. The defendant completed a test of Minnesota
K K
Multiphasic Personality Inventory. Dr Lee is of the view that the defendant’s
L procrastination is compatible with the diagnosis of someone suffering from a L
dependent personality disorder with symptoms including having difficulty making
M M
daily decision and needing others to assume responsibility for major areas of his
N life. N
O O
17. Dr Lee is further of the view that the defendant’s possession of the
P firearm is attributable to his dependent personality disorder and the strong P
emotional attachment to things of the past, and that the defendant took the firearm
Q Q
to the airport because of poor awareness and lapse of attention. Dr Lee finds that
R the defendant is not a violent or dangerous person. He has advised the defendant R
to seek intensive psychological help.
S S
T 18. Dr Lee testifies in court and his testimony is in line with what he says T
in his report. According to a further report by Dr Lee, the defendant has received
U U
psychological treatment for six sessions of one hour each since the compilation of
CRT34/6.10.2011/SY 4 DCCC723/2011/Sentence
V V
A A
the psychological report and has made good progress. Mr Lee is of the view that
B the defendant is likely to make continued progress and is expected to have a B
positive and optimistic long-term prognosis.
C C
D 19. The court of his volition also obtains a psychological report on the D
defendant. The psychologist conducted tests of self-report inventory and sentence
E E
completion tests on the defendant and is of the view that the defendant has the
F maladaptive coping style in avoidance, submissiveness and suppression. F
G G
20. According to the psychologist, the defendant explained that he had
H committed the present offence because of his habit of deferment, special meaning H
of the gun, overwhelmed work stress and bad luck.
I I
J Psychiatric Report J
21. The defence also submits to court a psychiatric report on the
K K
defendant compiled by Dr Peter Wu who interviewed the defendant on 16 August
L 2011 for 40 minutes and on 18 August 2011 for half an hour. Dr Wu also L
interviewed the defendant’s parents on 18 August 2011.
M M
N 22. Dr Wu points out in the report that the defendant has a history of N
hypertension and irregular heart beat and was under great stress in his work. The
O O
sudden death of his mother-in-law who was close to him was also a shock to the
P defendant and all the family members. In the diagnosis of the defendant, Dr Wu P
states that he thinks the defendant had had symptoms characteristic of dependent
Q Q
personality disorder and adjustment disorder with anxiety.
R R
23. Dr Wu is of the view that the present offence is entirely attributable to
S S
the mental disorder of the defendant because he could not say no to the one who
T gave him the gun and procrastinated in deciding how to dispose of the gun. It is, T
in the view of Dr Wu, also due to the adjustment disorder of the defendant that he
U U
took the gun to the airport through a gross lapse of memory. Dr Wu points out
CRT34/6.10.2011/SY 5 DCCC723/2011/Sentence
V V
A A
that the defendant would not cause any risk or danger to society and recommends
B the defendant to continue with psychotherapy in an out-patient setting, saying that B
any custodial sentence would interrupt treatment, making it harder for the
C C
defendant to recover.
D D
Background and Community Service Order Suitability Reports
E E
24. The court obtains a background and a community service order
F suitability reports on the defendant. The contents of the background report are in F
line with those set out in the psychological report, and it is stated in the community
G G
service order suitability report that the defendant is a suitable person for
H community service order. H
I I
Mitigation
J 25. The senior counsel representing the defendant accepts in mitigation J
that the present offence inevitably attracts an immediate custodial sentence unless
K K
there are very exceptional circumstances. He, however, points out that there are
L such exceptional circumstances in the present case. He emphasizes that the L
defendant took the gun to the airport with no intention at all to take the gun on
M M
board of the flight he was taking.
N N
26. It is generally known that the security screening at the Hong Kong
O O
Airport is very tight and it is of no doubt that the defendant only took the gun to
P the airport through lapse of memory and attention. In this regard the senior P
counsel draws the attention of the court to the case of Chou Shih Bin v HKSAR,
Q Q
FACC11/2004, in which the Court of Final Appeal held that it was impossible for
R a person who was familiar with the standard security procedures at the airport to R
present his bag for security X-ray screening if he had the knowledge that there was
S S
an anti-riot handgun loaded with one round of ammunition inside the bag.
T T
27. The senior counsel explains that the travel and work schedules of the
U U
defendant were very hectic around the time of the offence. He intended to take
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the gun home for safe custody after he had secured a permanent residence in Tai
B Kok Tsui but forgot that the gun was still inside his rucksack when he went to the B
airport to go to Seoul, Korea.
C C
D 28. The senior counsel also points out that the defendant co-operated fully D
with the police at the airport once the gun was detected. The senior counsel
E E
stresses that there is no evidence that the gun had ever been or was to be used for
F crimes or intended to be so used. There was no ammunition in the defendant’s F
possession. Although the magazine was present, the gun has not been fired for 20
G G
years.
H H
29. The senior counsel tells the court about the background of the
I I
defendant and how he came into possession of the gun and taking the gun to the
J airport. They are in line with what the defendant told the police and those set out J
in the various reports.
K K
L 30. The senior counsel also submits to court a statement of Mr Matt L
Schoeb explaining how he gave the gun to the defendant for his share of rent back
M M
in 1989.
N N
31. The gun was shipped to Hong Kong with the belongings of the
O O
defendant in 2002 when he came to work in Hong Kong. The senior counsel
P
agrees that the defendant should have surrendered the gun or disposed of it. The P
defendant did not do so because he, as diagnosed by Dr Peter Lee, the
Q Q
psychologist, is suffering from dependent personality disorder which is
R
characterised, inter alia, by his procrastinating character and sentimental R
attachment to possession of things. The senior counsel goes on explaining to court
S S
the details of the opinion of Dr Lee.
T T
32. The senior counsel says that while the defendant was in possession of
U the gun, he kept the gun in safe custody, not even his wife was aware of the U
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existence of the gun. He has never intended to use the gun for any illegal
B purpose. There is no latent risk of the gun falling into wrong hands. It is always B
the intention of the defendant to plead guilty to the offence which reflects in the
C C
remorsefulness on his part.
D D
33. Apart from calling the psychologist to give evidence, the defence also
E E
calls Mr Zhang Yichen, the chief executive officer of Citic Capital, as the
F defendant’s character witness. Mr Cheung has known the defendant for 8 years F
and their families often had social gatherings since they have children of about the
G G
same age. He says that the defendant has an impeccable business reputation and
H is the most honest person he has ever known. He is of the view that the defendant H
is not a violent person and he was shocked when he learned about the offence.
I I
He points out that the defendant is remorseful for what he had done.
J J
34. The senior counsel also submits to court a number of mitigation
K K
letters. The authors of the letters all express a good opinion of the defendant
L saying that he is an honest and trustworthy person. They all ask the court to treat L
the defendant leniently.
M M
N 35. The senior counsel submits to court for reference the High Court case N
of R v Hirai Hilrotsugu, HCCC30/1995, in which Duffy J fined a defendant who
O O
was a fanatic collector of firearms for the possession of an arsenal of World War II
P weaponry. P
Q Q
36. The senior counsel asks the court to impose a community service
R order and if the court is minded to impose a custodial sentence, the sentence should R
be one of a short duration.
S S
T Sentence T
37. Possession of a firearm without a licence is a very serious offence.
U U
The maximum penalty is one of 14 years’ imprisonment and a fine of $100,000.
CRT34/6.10.2011/SY 8 DCCC723/2011/Sentence
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Of course such penalty is reserved for the most serious type of such offence. It is
B common sense that firearms if fallen into wrong hands could cause tremendous B
harm to society. That explains why the courts in Hong Kong have always taken
C C
the offence of possession of firearms without licence very seriously.
D D
38. There are ample authorities saying that a sentence of 6 years’
E E
imprisonment for simple possession of a gun is not the least excessive, and then a
F higher sentence is warranted if there is evidence that the gun is intended for illegal F
purpose.
G G
39. The sentencing exercise in the present case, the court must confess, is
H H
not an easy one. Here I have before me a man of unblemished and impressive
I record and is highly successful in his banking career. He, however, stands I
convicted of a very serious offence.
J J
K 40. I accept that the defendant had possessed the firearm without any K
intention to use it for any illegal purpose and he has all along taken great
L L
precaution to keep the firearm in safe custody to make sure that it did not fall into
M wrong hands. I am convinced that the possession of the firearm by the defendant M
did not pose a risk or danger to society. I also accept that the defendant did not
N N
surrender the firearm or dispose of it because of his procrastinating character and,
O O
more importantly, his sentimental attachment to the firearm which he regarded, in
P
the words of Dr Lee, as a memento of an important stage in his life. P
Q Q
41. I accept the view of Dr Lee that these are symptoms of the dependent
R
personality disorder which the defendant laboured under at the time of the offence. R
The defendant is now receiving treatment from Dr Lee and is making good
S S
progress.
T T
42. One thing, however, which troubles the court is that the defendant
U U
took the firearm into Hong Kong intentionally. He gave the excuse that he did
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not know it was an offence in Hong Kong to do so. The court finds this totally
B incredible. He was aged 24 when he came to Hong Kong. He is a well educated B
man and is extremely successful in his career, it is impossible that he did not know
C C
it was an offence to possess a firearm in Hong Kong let aside taking it into Hong
D Kong from another country. D
E E
43. As the court has already pointed out, the court is of the view that the
F defendant has never had the intention to use the firearm for any illegal purpose. F
Then the court has to ask the question: why should the defendant bring the firearm
G G
to Hong Kong? Having considered the whole circumstances of the case, the court
H is of the view that the only conclusion is that he was driven to do so by a H
compulsive desire to keep the firearm as, again in the words of Dr Lee, a memento
I I
of an important stage of his life.
J J
44. What the defendant did is no doubt an extremely stupid act and could
K K
be the result of a psychological disorder. I have now before me various reports of
L the defendant. Having considered all these reports and the circumstances of the L
case, the court considers that the sentencing options in the present case include an
M M
immediate custodial sentence and a non-custodial sentence including a suspended
N sentence and a fine. A community service order is of course also a sentencing N
option.
O O
P 45. The court must say that the present case is very similar to the case of P
R v Hirai Hilrotsugu dealt with by Duffy J. Similar to the defendant in that case,
Q Q
the defendant in the present case is a psychologically sick person who requires
R treatment. He is receiving treatment and is making good progress. The court R
accepts the view of Dr Wu that interruption in the treatment of the defendant may
S S
make him more difficult to recover.
T T
46. Having considered the strong mitigating factors and the special
U U
circumstances of the present case, the court has decided against an immediate
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custodial sentence. The court of course cannot lose sight of the serious nature of
B the case, particularly the intentional act of the defendant taking the firearm into B
Hong Kong from the United States. It is of no doubt that the defendant has to be
C C
punished by the law for his illegal act.
D D
47. The court is convinced that the defendant requires psychological
E E
treatment to help him reform. The court considers that allowing the defendant to
F reflect on his misdeeds through voluntary community work for society and at the F
same time to receive the necessary psychological treatment is in the best interest of
G G
society and justice and is the most appropriate sentence in the present case. The
H court therefore makes an order that the defendant is to perform 240 hours of H
community service order. The defendant is to continue to receive psychological
I I
treatment while performing this order.
J J
48. As pointed out by the defence counsel, this is not a soft sentencing
K K
option because a number of authorities including the statutes creating this
L sentencing option all say that community service order is equivalent to a term of L
imprisonment.
M M
N 49. To make sure that the offence bears more strongly and deeply in the N
mind of the defendant, as a warning for him not to breach the law again, the court
O O
also imposes a fine of $50,000.
P P
Q Q
R H H Judge Yau R
District Court Judge
S S
T T
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