A A
DCCC1106/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1106 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Hussain Afsar
F F
----------------------
G G
Before: H H Judge S D’Almada Remedios
Date: 23 February 2012 at 4.28 pm
H Present: Mr Wong Chun-hin Derek, PP, of the Department of H
Justice, for HKSAR
Mrs Mahinder M Panesar, instructed by Messrs Foo,
I Leung & Yeung, assigned by the Director of Legal Aid, I
for the Defendant
J Offence: Possession of arms without a licence (無牌管有槍械) J
K --------------------- K
L
Reasons for Sentence L
---------------------
M M
1. Defendant, you have pleaded guilty to one charge of
N N
possession of arms without a licence, contrary to section 13 of
O the Firearms and Ammunition Ordinance, Cap.238. O
P 2. You have admitted on the 8th day of August 2011, P
outside the MTR University station, East Rail line, Sha Tin, New
Q Territories in Hong Kong, you had in your possession arms, Q
namely, two stunning devices without a licence; effectively, two
R R
stun guns.
S S
3. The facts are very brief. You were seen by police
T officers outside the University station and they intercepted you T
for enquiries, and upon search they found the two stun guns
U inside a plastic bag which you were carrying. U
CRT33/23.2.2012/ML 1 DCCC1106/2011/Sentence
V V
A A
4. The police arrested you. Under caution, you remained
B B
silent and when you were brought back to the police station.
C With the assistance of an Urdu interpreter, you made certain C
statements under caution, in effect, denying that you knew that
D what you were carrying was a stun gun. D
E E
5. However, you admitted today before the court that you
came to know it was a stun gun shortly before you were arrested
F F
by the police officers.
G G
6. You are 28 years of age and of clear record. You come
H from India. Just prior to you being arrested in Hong Kong, you H
had, in fact, been working in Shenzhen, China as a cross-border
I I
salesman taking Indian provisions from Hong Kong to China.
J J
7. I am informed by your counsel, Miss Panesar, that you
K
took these stun guns to Hong Kong from China as you had met K
somebody in China called “Chand.” He asked you to bring these
L guns to Hong Kong and hand them over to another Pakistani male. L
M 8. At that time you agreed to bring them over, you did M
not know they were stun guns, but believed they were a torch or
N N
an object that was used for killing mosquitoes. However, when
you came to Hong Kong, your friend who was accompanying you saw
O O
these two stun guns and told you then that they were stun guns.
P P
9. You were told to deliver these guns to a person in
Q Hong Kong and you were to meet him at the University station. Q
However, prior to meeting him, you were arrested.
R R
10. I have been referred to many previously decided cases
S S
by your counsel, Miss Panesar, on the appropriate starting
T point. I recognise there is no tariff. T
U U
CRT33/23.2.2012/ML 2 DCCC1106/2011/Sentence
V V
A A
11. The major cases are that of HKSAR v Li Hung Kwan,
CACC 250/2002; HKSAR v Fan Kwok Wai, CACC 264/2005; and
B B
DCCC 713/2011, HKSAR v Zhou Yiping; and DCCC 479/2009, HKSAR v
C Lau Wai Hong. C
D 12. In short, Miss Panesar says that you are, in fact, a D
very hardworking, enterprising young man who had left India to
E E
try and make a living in China. The money you had made from
selling Indian provisions in China, you had used to buy mobile
F F
phones which you later took to and sold in India.
G G
13. You have all along been a law-abiding citizen and you
H were taking these stun guns to Hong Kong to just pass on to H
another person.
I I
14. Miss Panesar has recognised that the strongest
J J
mitigating factor in your case is, of course, your plea of
K
guilty. K
L 15. Miss Panesar, although recognising that the level of L
voltage is high in this case, has tried to persuade the court in
M mitigation that you never intended to use this for any unlawful M
purpose. On the evidence; I accept that to be the case.
N N
16. It is clear from the case of Fan Kwok Wai that in
O O
considering the sentence for stun guns, the court should take
P into account the power of the weapon, that is, what level of P
voltage it is capable of discharging.
Q Q
17. In this case, the peak-to-peak pulsating voltage
R R
generated from one of the guns was found to be 409,000-odd
volts. For the other gun, it was 540,000 odd volts.
S S
T 18. Compared to the other cases which have been submitted T
to me, that does seem to be in the higher range of voltage for
U arms of this type. U
CRT33/23.2.2012/ML 3 DCCC1106/2011/Sentence
V V
A A
19. The forensic pathologist opined that these two guns,
B B
when applied to the human body, were capable of causing
C localised pain, twitching of local skeletal muscles, resulting C
in jolting and shaking sensations and even temporary
D incapacitation. D
E E
20. The second consideration is, of course, whether there
is evidence that the offender or some other person may use the
F F
weapon for an unlawful purpose or to facilitate an unlawful
G activity. G
H 21. I accept from Miss Panesar, as I mentioned earlier, H
that there is no evidence that you would be using these guns for
I I
any unlawful purpose.
J J
22. You were, however, a mule in delivering these guns to
K
Hong Kong from China and it would have been likely that the guns K
may have been used to facilitate some unlawful activity.
L L
23. I note from the facts that you had mentioned that
M Chand had agreed to reward you 3 to 4 hundred dollars for taking M
these guns to Hong Kong.
N N
24. The cases that have been submitted as to their
O O
sentences have been very wide in their variance in sentence.
P P
25. I have taken into account the fact that you yourself
Q did not use the weapons for unlawful purpose however you had Q
brought two of these powerful weapons to Hong Kong for a third
R R
party. No doubt a deterrent sentence is warranted. On the facts
before this court, I think an appropriate starting point for
S S
this offence is one of 2½ years’ imprisonment.
T T
26. You have pleaded guilty before this court. Taking into
U account your plea of guilty, a discount of one third is U
CRT33/23.2.2012/ML 4 DCCC1106/2011/Sentence
V V
A A
warranted. In the circumstances you should be sentenced to 20
months’ imprisonment.
B B
C C
D
(S D’Almada Remedios) D
District Judge
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
U U
CRT33/23.2.2012/ML 5 DCCC1106/2011/Sentence
V V
A A
DCCC1106/2011
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 1106 OF 2011
C C
----------------------
D D
HKSAR
E v. E
Hussain Afsar
F F
----------------------
G G
Before: H H Judge S D’Almada Remedios
Date: 23 February 2012 at 4.28 pm
H Present: Mr Wong Chun-hin Derek, PP, of the Department of H
Justice, for HKSAR
Mrs Mahinder M Panesar, instructed by Messrs Foo,
I Leung & Yeung, assigned by the Director of Legal Aid, I
for the Defendant
J Offence: Possession of arms without a licence (無牌管有槍械) J
K --------------------- K
L
Reasons for Sentence L
---------------------
M M
1. Defendant, you have pleaded guilty to one charge of
N N
possession of arms without a licence, contrary to section 13 of
O the Firearms and Ammunition Ordinance, Cap.238. O
P 2. You have admitted on the 8th day of August 2011, P
outside the MTR University station, East Rail line, Sha Tin, New
Q Territories in Hong Kong, you had in your possession arms, Q
namely, two stunning devices without a licence; effectively, two
R R
stun guns.
S S
3. The facts are very brief. You were seen by police
T officers outside the University station and they intercepted you T
for enquiries, and upon search they found the two stun guns
U inside a plastic bag which you were carrying. U
CRT33/23.2.2012/ML 1 DCCC1106/2011/Sentence
V V
A A
4. The police arrested you. Under caution, you remained
B B
silent and when you were brought back to the police station.
C With the assistance of an Urdu interpreter, you made certain C
statements under caution, in effect, denying that you knew that
D what you were carrying was a stun gun. D
E E
5. However, you admitted today before the court that you
came to know it was a stun gun shortly before you were arrested
F F
by the police officers.
G G
6. You are 28 years of age and of clear record. You come
H from India. Just prior to you being arrested in Hong Kong, you H
had, in fact, been working in Shenzhen, China as a cross-border
I I
salesman taking Indian provisions from Hong Kong to China.
J J
7. I am informed by your counsel, Miss Panesar, that you
K
took these stun guns to Hong Kong from China as you had met K
somebody in China called “Chand.” He asked you to bring these
L guns to Hong Kong and hand them over to another Pakistani male. L
M 8. At that time you agreed to bring them over, you did M
not know they were stun guns, but believed they were a torch or
N N
an object that was used for killing mosquitoes. However, when
you came to Hong Kong, your friend who was accompanying you saw
O O
these two stun guns and told you then that they were stun guns.
P P
9. You were told to deliver these guns to a person in
Q Hong Kong and you were to meet him at the University station. Q
However, prior to meeting him, you were arrested.
R R
10. I have been referred to many previously decided cases
S S
by your counsel, Miss Panesar, on the appropriate starting
T point. I recognise there is no tariff. T
U U
CRT33/23.2.2012/ML 2 DCCC1106/2011/Sentence
V V
A A
11. The major cases are that of HKSAR v Li Hung Kwan,
CACC 250/2002; HKSAR v Fan Kwok Wai, CACC 264/2005; and
B B
DCCC 713/2011, HKSAR v Zhou Yiping; and DCCC 479/2009, HKSAR v
C Lau Wai Hong. C
D 12. In short, Miss Panesar says that you are, in fact, a D
very hardworking, enterprising young man who had left India to
E E
try and make a living in China. The money you had made from
selling Indian provisions in China, you had used to buy mobile
F F
phones which you later took to and sold in India.
G G
13. You have all along been a law-abiding citizen and you
H were taking these stun guns to Hong Kong to just pass on to H
another person.
I I
14. Miss Panesar has recognised that the strongest
J J
mitigating factor in your case is, of course, your plea of
K
guilty. K
L 15. Miss Panesar, although recognising that the level of L
voltage is high in this case, has tried to persuade the court in
M mitigation that you never intended to use this for any unlawful M
purpose. On the evidence; I accept that to be the case.
N N
16. It is clear from the case of Fan Kwok Wai that in
O O
considering the sentence for stun guns, the court should take
P into account the power of the weapon, that is, what level of P
voltage it is capable of discharging.
Q Q
17. In this case, the peak-to-peak pulsating voltage
R R
generated from one of the guns was found to be 409,000-odd
volts. For the other gun, it was 540,000 odd volts.
S S
T 18. Compared to the other cases which have been submitted T
to me, that does seem to be in the higher range of voltage for
U arms of this type. U
CRT33/23.2.2012/ML 3 DCCC1106/2011/Sentence
V V
A A
19. The forensic pathologist opined that these two guns,
B B
when applied to the human body, were capable of causing
C localised pain, twitching of local skeletal muscles, resulting C
in jolting and shaking sensations and even temporary
D incapacitation. D
E E
20. The second consideration is, of course, whether there
is evidence that the offender or some other person may use the
F F
weapon for an unlawful purpose or to facilitate an unlawful
G activity. G
H 21. I accept from Miss Panesar, as I mentioned earlier, H
that there is no evidence that you would be using these guns for
I I
any unlawful purpose.
J J
22. You were, however, a mule in delivering these guns to
K
Hong Kong from China and it would have been likely that the guns K
may have been used to facilitate some unlawful activity.
L L
23. I note from the facts that you had mentioned that
M Chand had agreed to reward you 3 to 4 hundred dollars for taking M
these guns to Hong Kong.
N N
24. The cases that have been submitted as to their
O O
sentences have been very wide in their variance in sentence.
P P
25. I have taken into account the fact that you yourself
Q did not use the weapons for unlawful purpose however you had Q
brought two of these powerful weapons to Hong Kong for a third
R R
party. No doubt a deterrent sentence is warranted. On the facts
before this court, I think an appropriate starting point for
S S
this offence is one of 2½ years’ imprisonment.
T T
26. You have pleaded guilty before this court. Taking into
U account your plea of guilty, a discount of one third is U
CRT33/23.2.2012/ML 4 DCCC1106/2011/Sentence
V V
A A
warranted. In the circumstances you should be sentenced to 20
months’ imprisonment.
B B
C C
D
(S D’Almada Remedios) D
District Judge
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
U U
CRT33/23.2.2012/ML 5 DCCC1106/2011/Sentence
V V