A HCCC38/2012 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 38 OF 2012
C C
-----------------
D HKSAR D
v
E E
Leung Kwok-chi (梁國熾)
F F
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G Before: The Honourable Madam Justice Beeson G
Date: 26 October 2012 at 11.01 am
Present: Mr David Chan, ADPP of the Department of Justice, for
H H
HKSAR
Mr Chan Siu-ming, instructed by Kevin Ng & Co,
I assigned by DLA, for the Accused I
Offence: Possession of arms and ammunition without licence (無牌
管有彈藥)
J J
---------------------------------
K Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant, Leung Kwok-chi, pleaded guilty to one
charge of possession of arms and ammunition without a
M M
licence, contrary to section 13(1) and (2) of the Firearms
and Ammunition Ordinance, Cap.238.
N N
The charge alleged that on 15 April 2011 at his home in
Fu Cheong Estate, the defendant had in his possession a
O large quantity of ammunition and a number of firearms O
without a licence; those items are set out in the
particulars of the charge as items 1 to 15:
P P
(1) one United States origin Thompson Contender firearm
Q consisting of one “receiver assembly” and one Q
barrel;
(2) eight silencers;
R (3) four firearm barrels; R
(4) one Crosman Classic Pellet Rifle (air gun);
(5) one ERMA WERKE Mod EGR 66 Kal 9 mm Revolver;
S S
(6) one RAM Combat cal. 43 S/N RC08F00305 (air gun);
(7) one PTB Revolver;
T (8) one Crosman air gun; T
(9) one ORION 12Ga Calibre Flare Pistol;
(10) one piece of 38 mm cartridge smoke yellow;
U U
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A (11) one piece of 1.5 inch Ferret liquid CS, Barricade- A
penetrating cartridge, complete;
(12) 2,173 rounds of 0.22 calibre ammunition;
B (13) 640 rounds of 0.38 calibre ammunition; B
(14) 659 rounds of 9 mm calibre ammunition; and
(15) 109 rounds of 357 Mag calibre ammunition.
C C
The offence came to light because the defendant went to the
D hospital to obtain medical treatment for a gunshot wound to D
his left thigh. The case was reported to the police by the
hospital staff and in answer to inquiries, the defendant
E said that he shot himself accidentally while he was cleaning E
a rifle. He had given the same explanation to the hospital
staff.
F F
The defendant was treated at the hospital for a 1 cm wound
G over the anteromedial thigh on the left side and an exit G
wound, also 1 cm, over the posterior thigh. He underwent an
emergency operation on 19 April 2011 and was discharged from
H hospital on 27 April 2011. He had been arrested on 16 April H
2011 and a statement was taken from him while he was in the
I
hospital. I
A police search of the flat revealed, inter alia, a licensed
J Thompson Contender 0.22 calibre rifle on the floor with a J
fired cartridge case jammed in the chamber. A bullet hole
was found on a chair and a bullet fragment was found beneath
K the chair. A large quantity of firearms, pistols, guns, K
component parts for guns, ammunition and miscellaneous arms-
L related items were found in the flat. L
The defendant, at the time of this offence, held Arms and
M Ammunition Licence No. 7755, which was first issued on M
8 March 1985 and which permitted him to have specific
firearms with recorded serial numbers and a prescribed
N quantity of appropriate ammunition. Of the 14 items which N
were licensed, three were required to be kept at the Rifle
O Association premises but the other items were permitted to O
remain in the defendant’s flat. A shotgun, two rifles and a
pistol, all of which were operative, were kept in the flat
P together with other items of weaponry which were deactivated P
in accordance with the authorisation.
Q Q
Under the terms of his licence, the defendant was permitted
to have ammunition inside the flat, namely 300 rounds of 12
R gauge calibre ammunition and 400 rounds of 0.22 calibre R
ammunition. In fact, the defendant kept ammunition as
follows: 300 rounds of 12 gauge calibre ammunition; 2,573
S rounds of 0.22 calibre ammunition; 659 rounds of 9 mm S
calibre ammunition; 940 rounds of 0.38 calibre ammunition
and 109 rounds of 357 Mag calibre ammunition.
T T
Firearms and ammunition which were not authorised by the
U licence were found in the flat. There was a metal locker in U
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V V
A the flat which was purportedly a gun locker but it was not A
large enough to store all the firearms and ammunition
recovered, and when the police searched the flat, it did not
B have anything inside it except the magazine of a gun. It B
was open.
C C
The defendant was asked about the source of the unlicensed
firearms and other items but could only give vague answers.
D The basis of his admissions was that he had purchased the D
items many years ago but could not recall where he had
purchased them from. Eight silencers which were found in
E his flat, which is item 2 in the charge, were said to have E
been purchased many years ago and he could not recall the
name of the shop.
F F
He had picked up a live smoke grenade - which is Exhibit 161
G - from a firing range in Pak Lai years ago and had since G
kept it for his collection. A CS grenade, which is a ‘tear
gas’ grenade - Exhibit 162 - he had picked up in a refugee
H camp and kept. The CS grenade contained noxious liquid and H
gas which, on impact, could be released. However, there was
I
no firing device such as was needed for it in the flat. The I
defendant recalled that one firearm had been bought from the
Universal Toy Gun Shop in Waterloo Road more than 20 years
J ago. The defendant was a retired Correctional Services J
Officer and presumably was working as such when he found the
tear gas grenade in the refugee camp.
K K
There are a number of matters pertinent to consideration of
L sentence relating to this offence. First of all, this is by L
its nature a very serious offence punishable by a maximum of
14 years’ imprisonment and a maximum fine of $100,000 as set
M out in the Ordinance. Here there was a very large number of M
items, none of which seemed to be properly secured and
photographs show that the whole flat appears to have been
N used as an insecure gun locker. The items, including the N
ammunition, appear to have been kept under lock and key in
O some cases but, in most cases, were accessible to anybody. O
A sketch plan showed how widespread the distribution of
P ammunition and arms was and the photographs produced P
confirmed that. Some of the items were gun component parts
which could be easily converted to working order, for
Q Q
example, silencers, barrels, receivers and adapters.
Further, there was a plenitude of compatible ammunition far
R in excess of the quantities that were permitted by the R
defendant’s licence.
S The defendant had a clear record. The court, concerned by S
the number and nature of the items found in the flat and the
defendant’s insistence that he did not remember, despite his
T T
collecting habit, where the items had come from, considered
it was appropriate to obtain a background report and a
U psychologist’s report before sentencing. The background U
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V V
A report was obtained. It was detailed and set out the A
defendant’s family history, his education history and his
employment history.
B B
Before joining the Hong Kong Correctional Services
Department in 1970, he had done various jobs. Later, he
C C
worked as a Prison Officer and Assistant Officer until his
retirement in 2001. He had worked in a number of
D correctional institutions, refugee camps, remand centres, D
detention centre and drug treatment centre.
E He had been a member of the Hong Kong Rifle Association E
since 1984 and the CSD Gun Club since 1986 as well as the
Hong Kong Practical and Shooting Association since 1988. In
F F
addition, he belonged to other overseas gun clubs such as
the Winnipeg Police Revolver Club and Canadian Police
G Combaters Association. G
The defendant told the reporting officer that he collected
H and obtained the guns that had been deactivated and bought H
from his friends. He also collected air guns and electric
I
guns from gun toyshops. He said he only used a few of the I
guns while many of those in his possession had not been used
at all.
J J
According to him, most of the bullets found could not be
used while those that could be used were used for practising
K and competitions. He said he sometimes bought more bullets K
as they were out of stock on occasion. He said he was not
L aware that he had so many non-used bullets left after L
practising and competitions. According to him, the guns had
been bought before his retirement for practising and taking
M part in such competitions. He spent at that time $1,500 to M
$2,000 on bullets a month, with $5,000 to $10,000 being
spent on buying guns each month before his retirement.
N N
The defendant’s wife described her husband as a responsible
O husband and loving father. According to her, the accused O
had no vices and his hobbies were making model planes,
collecting antiques and guns. His gun hobby, according to
P her, had not affected the family and he had made regular P
financial contribution to the family. According to his
wife, the accused was careful about locking the guns up
Q Q
properly at home. It is difficult to consider that as being
particularly accurate given the number of guns that were
R found in the photographs. R
Both the accused and his wife pleaded with the reporting
S officer for a lenient sentence. The wife said that she S
needed the husband to take care of her because she was
suffering from diabetes, hypertension and gallstones and she
T T
said she was finding it difficult to believe that the
accused was in prison when he had once worked in prison
U himself. U
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A A
The other report was a psychologist report which was
prepared by Dr Anita C Leung who interviewed Mr Leung and
B his wife. She confirmed that the defendant had been brought B
up in humble circumstances and had completed only up to
Primary 5. In 1970, he applied for a job in Correctional
C C
Services Department and worked there until his retirement.
He had married in 1972 and had a daughter and a son, born in
D 1974 and 1978 respectively. His daughter had suffered from D
Systemic Lupus Erythematosus for four to five years which
involved her going in and out of hospital.
E E
In 1992 his daughter died suddenly, aged 18 years, and from
about that time, the defendant became more absorbed in his
F F
interest in arms and shooting. He became obsessed by
collecting all sorts of deactivated firearms, model guns,
G air guns, accessories, and blank or deactivated cartridges G
and derived satisfaction from cleaning this collection when
nobody was around at home.
H H
He had joined the Hong Kong Rifle Association as a member in
I
1984 and was a founding member of the Gun Club of the I
Correctional Services Department Sports Association which
was formed in 1985. He represented the Correctional
J Services in competitive shooting matches. He served as a J
volunteer in the shooting range before and after his
retirement. He had developed satisfying relationships in
K the field of shooting, both locally and overseas. K
L The defendant retired in 2004 at the age of 54 because he L
was suffering from heart problems. In 2003, his son’s spine
was injured while he was working as a temporary casual
M worker and the defendant used up the lump sum from his M
pension on medical treatment and rehabilitation for his son.
N According to Dr Leung, Mr Leung felt confused and helpless N
at this stage. He had attempted to jump out of a window
O while he was in the hospital. He had been transferred to O
Siu Lam Psychiatric Centre and remanded for more than 70
days. He told her that he had trouble sleeping at night and
P had nightmares. The defendant also told Dr Leung that he P
intended to give up his hobby and give away all his arms and
ammunition in case he committed an offence again. He had
Q Q
begun to develop other interests, such as fishing and
construction of model airplanes to play with his grandson.
R R
A psychological profile of the defendant was done according
to the Millon Clinical Multiaxial Inventory. That portrayed
S a rule-bound and duty-bound personality, concerned about S
doing things correctly and responsibly and accepting
punishment for wrongdoing. It was also suggested that he
T T
was committed to personal relationships and modest about his
own accomplishments. The psychologist noted prominent
U U
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A symptoms of anxiety, depression and post-traumatic stress A
disorder.
B Dr Leung described the defendant as an upright and modest B
person, law-abiding and committed to his family. Shooting
had been his only hobby for the past 25 years. He had
C C
achieved much in international games and had developed
satisfying relationships internationally and locally through
D the sport. He had acquired the qualification of a Range D
Conducting Officer and had volunteered for that service for
a number of years.
E E
The death of his daughter, his failing health and his son’s
injury caused him to feel losses and this had led to him
F F
becoming more obsessed and collecting all sorts of
deactivated firearms, air guns, model guns, accessories and
G blank or deactivated cartridges and cleaning his collection. G
His accidental injury, his being charged with possession of
H firearms and ammunition without a licence and his H
experiences in the police custodial cell and Siu Lam
I
Psychiatric Centre were all causes of trauma to him. He I
regretted his obsession with his hobby and presented to
Dr Leung as anxious, depressed and helpless.
J J
Dr Leung assessed him as a person of good character and
described him as a constructive asset to the community. She
K said that he needed to be helped to overcome his grief and K
trauma and to have his quality of life enhanced.
L L
As well as those reports, after I had adjourned for
sentence, I considered it advisable to have some explanation
M from the Licensing Authority about policy regarding arms and M
ammunition. Accordingly, on 16 October 2012, a hearing was
arranged where Chief Inspector Chow Ngai-kong, who is
N attached to the Police Licensing Office, very kindly N
attended court, all parties being present, to answer
O questions relating to policies and practices governing arms O
and ammunition licensing and to tell the court what
supervision was given to licensees. I must say that I am
P very grateful to the Chief Inspector for that information. P
I paraphrase what was discovered as a result of what the
Q Q
Chief Inspector told the court. Firearms and ammunition
licences can be applied for by any citizen of Hong Kong aged
R 18 or above, who is a fit and proper person, who has a good R
reason for possession and who will keep the guns and
ammunition in such a way that they will not cause concern
S for the security or safety of the public. The reasons for S
possession are effectively for sports competitions and
recreation purposes. Each licence holder must be affiliated
T T
to a gun club. Applicants do not have to provide referees;
no fingerprints are taken; and health checks are not
U mandatory. U
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V V
A A
There are 19 registered gun clubs in Hong Kong. Guns are
inspected prior to the licence being granted. The gun club
B certifies the model number and description and makes a B
recommendation. Then what Chief Inspector Chow referred to
as ‘frontline officers’ would check the guns and their
C C
storage before and after the issue of the licence. The
amount of ammunition which is permitted to be kept depends
D on the amount which is needed for competitive purposes and D
which is appropriate for the particular firearm.
E The basic condition is that guns and ammunition are stored E
separately in locked containers if kept at home. The
licensee is subject to annual inspection, although this is
F F
not done on a surprise visit basis, but licensees are
informed in advance that an inspection will be carried out.
G I would comment that, in my view, such a form of inspection G
is of little value as advance notice means the licensee can
put his arms and ammunition in order solely for the purposes
H of inspection. H
I
As at 1 October 2012, there were 483 licensees in Hong Kong I
and those licences covered a total of 3,140 live weapons.
There are 23 licensed arms dealers. The dealer will issue
J an agreement saying that he will sell a gun before a licence J
is issued, but this occurs almost simultaneously with the
issue of the licence. Gun parts, component gun parts, are
K required to be licensed separately. K
L The court was informed that before 1997, arms and ammunition L
could be stored at the home of the licensee if approval was
given to storage conditions. After 1997, an applicant for a
M new licence had to store guns and ammunition at an approved M
armoury. However, those licensees who held licences before
1997 - and the defendant comes into this category - were and
N are still permitted to keep approved arms and ammunition at N
home. This appears to be based on a belief that the
O licensee should have a legitimate and reasonable expectation O
that the pre-1997 conditions should apply. However, that
cannot be right.
P P
There are 147 licensees who obtained licences before 1997
and those licences cover 372 guns which can still be stored
Q Q
at the home of the licence holder. The pre-1997 licensees
are allowed to keep the guns at home if they apply to do so.
R This applies to rifles, shotguns or air pistols. However, R
because handguns were easier to conceal, they were not
allowed to be stored at home either before or after 1997.
S There appeared to be no limit to the number of guns that can S
be held by one person and a licensee generally will have one
gun of each calibre and can have a spare gun in case of
T T
malfunction.
U U
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A So prior to 1997, deactivated firearms were not required to A
be stored in an armoury but since 1997, apparently, those
items must be stored in a secured cabinet at home.
B Amendments to the licensing conditions are printed out and B
notified to the licensee.
C C
There appear to be at least two flaws in the licensing
system, perhaps three. The first is that I note from the
D licence of the defendant that his photograph was still the D
same as it was in 1985. Second, there is no surprise
inspection done in respect of the licence holders. The most
E worrying flaw is that the licensees who still hold licences E
from pre-1997 are entitled to keep guns at home. I can see
no justification for maintaining that system in present-day
F F
Hong Kong. It should be the case that all firearms are kept
in an armoury attached to a properly licensed gun club.
G G
It is particularly difficult to understand, for instance,
why it was justified or necessary for the defendant, who was
H living in a small public housing flat in an urban area, to H
have a shotgun, two rifles and a pistol together with a
I
substantial quantity of compatible ammunition kept at his I
home.
J Photographs taken for evidential purposes show that various J
items were strewn throughout the flat, which is about 300
square feet. There was no especially complicated lock on
K the front door of the flat which opened directly into the K
living area. Offending items were found on open shelves, in
L unlocked drawers and on the floor. Five boxes containing L
unlicensed ammunition of various calibres were found inside
the wardrobe in the bedroom, clearly exposed and accessible.
M A pistol was inside the cupboard, a Remington shotgun, a gun M
barrel, two firearm parts, a box containing a pistol were
also found in the bedroom. A black bag containing a Colt
N pistol and a box containing gun parts was found in the N
bedroom. Another revolver in a brown holster was found in
O the wardrobe and other gun-related items were found in the O
bedroom as well.
P I do accept that some of these items were replica items and P
I accept that a number of them were deactivated. However,
it is possible, although I am told it is difficult, to
Q Q
reactivate deactivated items, but it is also possible to
modify replica items so that they are capable of firing
R ammunition. R
A Crosman Classic Pellet rifle was found near the computer
S desk in the living room. A revolver with a black holster S
was found underneath the computer desk. A 7.62 mm pistol,
one of the licensed firearms, was found on a bookshelf in
T T
the living room. A quantity of ammunition was found in a
display cabinet in the living room. Another cabinet
U contained yet more ammunition. There was no strong lock on U
CRT18/26.10.2012/CC 8 HCCC38/2012/Sentence
V V
A either cabinet apparent from the photographs. A box A
containing firearms was found on top of the wardrobe. A box
containing an air gun was found on the floor underneath the
B coffee table. B
I catalogue the placement of these items and their
C C
apparently inadequate storage to show how dangerous the
collection of guns could actually be.
D D
A large amount of material was put before the court in the
course of mitigation. I have read it all and I have
E considered it carefully, but I do not propose to repeat it E
all here. There were a number of letters from persons who
have and have had close connections with the defendant,
F F
mostly through the Correctional Services Department or the
gun clubs to which he belonged, and those writers
G effectively gave character evidence for this defendant. G
Mr Lee Gar-san, the retired General Manager of Correctional
H Services Department, had worked with the defendant and also H
took part in sports shooting activities and competitions in
I
Hong Kong and overseas with him and had taken courses on I
guns maintenance and firearms training. He confirmed that
the defendant was an enthusiastic participant in competitive
J shooting and had also used his expertise in the course of J
his duties. He believed that he was a conscientious husband
and father.
K K
Mr Samson Chan who had worked with the defendant and had
L contact with him through the formation of the CSD shooting L
club, referred to him as a highly responsible and self-
disciplined CSD officer who had not taken any nonsense from
M other shooting team members, regardless of their rank, M
during shooting practices and competitions. He confirmed
that after the defendant’s daughter’s death and later, his
N son’s serious injury, the defendant had been helped through N
those difficult times by his passion for shooting sports and
O the comradeship and support of his team members. Mr Samson O
Chan attributed the defendant’s present predicament to an
over-zealous passion for the shooting sports.
P P
Included in the mitigation material were letters from the
persons who were involved with the defendant through the
Q Q
Hong Kong Practical Shooting Association and the Hong Kong
Rifle Association, both of whom attested to his enthusiasm
R and the amount of time and effort he had put into his R
activities. They sought leniency for the defendant.
S There was also a letter from the defendant himself, S
expressing his great remorse. His wife, his son, his
daughter-in-law and grandson had all written letters
T T
extolling the good qualities of the defendant as husband,
father and grandfather. All referred to him as being
U U
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A traumatised by these events and sought leniency in terms of A
sentence.
B Other letters in mitigation related to his work with B
Correctional Services Department from 1970 to 2001 when he
retired, including a commendation that he received from the
C C
Commissioner of Correctional Services.
D A large number of certificates was exhibited which attested D
to the defendant’s skill as a marksman and gave some idea of
the many occasions on which he had been a competitor in
E competitions both in Hong Kong and overseas between 1986 and E
2010.
F F
Details of his Range Officer appointment were set out for
the period 1996 until 2009.
G G
The court was also informed of the charitable assistance
that the defendant had given to sponsor children in need.
H H
Having digested the material put before me, it appears that
I
the defendant is not just a man of clear record, but that he I
is a man of positive good character. He was considered a
good employee while working for CSD. He is known by his
J family as a loving and supportive husband, father and J
grandfather.
K He was an enthusiastic participant in shooting sports and at K
times of personal stress appears to have become even more
L zealous in taking part in such sports. Unfortunately, the L
present offence indicates that at some stage this urge to
collect gun-related items has become more of an obsession
M than the absorbing hobby that it should have been. M
No other explanation seems to account satisfactorily for his
N having so much unlicensed and potentially dangerous material N
at home. Examples of immediate dangers posed by that
O material are the tear gas canister and the grenade, both of O
which were considered by the ballistics expert to be very
volatile.
P P
There was no real explanation offered as to the reason the
rifle that he was cleaning had been loaded. Nor has there
Q Q
been any satisfactory account as to where so much of the
unlicensed material came from.
R R
After 25 years as a licensed gun holder, the defendant can
have been in no doubt that he was wrongfully in possession
S of unlicensed material. I accept that he is not charged S
specifically with breaches of his licence conditions, but
the fact that these licensed weapons were not stored
T T
correctly is indicative of how far he has strayed from
commonsense and prudence when dealing with firearms and
U ammunition. U
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V V
A A
The defendant had invested a lot of time and energy in his
work as a Range Officer. He was licensed as a Range Officer
B at the time of this offence. That makes it even more B
reprehensible that he should possess unlicensed arms and
ammunition, but worse than that, he was living in a house
C C
where this dangerous material was not properly stored. I
note that the defendant had a 9-year-old grandson who could
D certainly have been at risk if he had visited the home where D
his grandfather lived, given the amount of unsecured
material that was there.
E E
The defendant appears to have forgotten entirely the safety
laws that he must have known and practised over the years.
F F
It may be that after 25 years, he considered himself so
proficient with firearms that he thought the rules could be
G ignored. It appears that the gun with which he shot himself G
was a licensed weapon and that he was cleaning it when it
was loaded. That is not the kind of elementary mistake that
H one would expect from a man of his experience. H
I
As I said earlier, the maximum penalty for sentence was 14 I
years’ imprisonment and a fine of $100,000. A starting
point for sentence in excess of 10 years is regularly
J adopted in case such as this. In R v Ho Chun [1992] 1 HKCLR J
86, a sentence of at least 8 years’ imprisonment after a
guilty plea was imposed for possession of firearms and
K ammunition without a licence. That involved a 7.62 mm x 25 K
calibre semi-automatic pistol and 12 rounds of live
L ammunition for that pistol. It was an aggravating feature L
in that case that the gun had been fired.
M In R v Man Hung Pui [1993] 2 HKC 174, a 17-year-old youth M
who pleaded guilty was sentenced to 32 months’ imprisonment.
I note that the possession of a loaded firearm would attract
N a heavier sentence than possession of a firearm without N
ammunition. The possession of an unloaded firearm and
O ammunition calls for a more severe sentence than that for O
possession of an unloaded firearm alone and the possession
of ammunition is usually less serious than the possession of
P arms. P
In this case I note at least one of the guns must have been
Q Q
loaded for the defendant to have caused himself an injury,
but no other guns were found to be loaded in the flat.
R R
In R v Au Yeung Wai Kwong, CACC238/1994, unreported, a
sentence of 8 years after a guilty plea was given and a
S starting point of 12 years was considered appropriate. S
In R v Leung Shiu Lun [1997] HKC 758, which related to
T T
possession of air rifles and air pistols, the court
considered them less serious than the possession of
U U
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V V
A unlicensed firearms proper and took a starting point of 15 A
months’ imprisonment as being adequate.
B In HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, the guns involved B
were a 9 mm short calibre self-loading pistol, two pistol
magazines designed for a 9 mm short calibre pistol, a 9 mm
C C
pistol silencer, a metal aerosol canister containing tear
gas, and 13 rounds of 9 mm short calibre ammunition. That
D attracted a sentence of 7 years and 4 months’ imprisonment D
after a guilty plea.
E The court commented in that case they would not have E
criticised the judge if he had adopted 12 years as the
appropriate starting point. Such a starting point was said
F F
to be normally appropriate for those who arm themselves with
weapons of this kind in working condition and with
G ammunition available. I accept that that case is not on all G
fours with the present situation.
H In HKSAR v Yau Siu Kai [2001] 1 HKC 427, the weapon involved H
was a fully loaded converted revolver. The defendant was
I
sentenced to 7 years’ imprisonment after a guilty plea. I
In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the general rule
J was stated that deterrence is the purpose of a sentence in a J
case such as this and there is a need to assess the
potential risk posed by the firearms, and it set out the
K factors for consideration which had been referred to by K
Mr Chan.
L L
Chan Chi Fun set out the matters that will be noted, that
the court should take into account; the types of arms and
M ammunition involved; whether the defendant had physically M
carried the arms and ammunition; whether the arms were
loaded; whether the arms had been used; whether the
N defendant intended to use the arms for illegal purposes; N
whether the items were properly cared for or stored or
O whether they were easily accessible by criminals; and O
whether the defendant had a clear record.
P The court went on to say that determination of sentence P
depends on the court’s assessment of the potential risk
imposed by the arms and ammunition under the possession of
Q Q
the defendant, taking into account the circumstances of the
case, the defendant’s background and the possibility of the
R arms and ammunition being used by other persons. Under R
circumstances where the defendant carried the arms which
were loaded and the arms had been used, the starting point
S on conviction would be 12 years’ imprisonment. S
In HKSAR v Kwai Ping Hung [2007] 1 HKC 620, there was a
T T
maximum sentence of 14 years’ imprisonment given because the
guns and ammunition in that case were effectively an arsenal
U of a great number of items. U
CRT18/26.10.2012/CC 12 HCCC38/2012/Sentence
V V
A A
In HKSAR v Chau Lap Pui [2007] 2 HKC 342, which related to
possession of a bottle of pepper spray, a starting point of
B 6 months’ imprisonment was considered proper. B
In HKSAR v Lui Fui [2008] 3 HKC 218, which involved the
C C
possession of a grenade, there was no evidence that the
defendant had any intention to use it and a sentence of 33
D months was upheld by the court. D
The most recent case of significance is that of Secretary
E for Justice v Yan Shen CAAR10/2011 which was an application E
for review by the Secretary for Justice on the grounds that
the sentence imposed was manifestly inadequate and wrong in
F F
principle. The applicant had been found at the airport in
possession of a pistol with a magazine without a licence.
G He had been sentenced to 260 hours of community service and G
fined $50,000. It was accepted by the applicant that the
respondent did not intentionally or knowingly take the gun
H to the airport for various reasons which were set out in the H
judgment and it had slipped his mind that he had it in his
I
possession. I
In that case, a psychologist’s report and a psychiatrist’s
J report were put before the court and the judge called for a J
psychologist’s report to be prepared by a government
psychologist and also asked for a background report. The
K defendant was said to be suffering from an adjustment K
disorder and anxiety but no evidence of any violent
L temperament was found and although the government L
psychologist did not make a similar diagnosis, he did not
contradict the finding of the other psychologist.
M M
The court in Yan Shen considered the sentencing exercise
difficult because the defendant in that case was a man of
N unblemished and impressive record, who was highly successful N
in his banking career, but had nevertheless been convicted
O of a very serious offence. The judge accepted that he had O
no intention to use the firearm and that he had previously
taken great precautions to keep the firearm in safe custody.
P The court stated at page 14: P
“However, in the case of unlicensed possession of
Q Q
firearms, societal protection is a paramount
consideration; it is a category of offence in which the
R sentencing court is expected to give particular weight R
to that paramount consideration. It is a category of
offence which in general requires a deterrent sentence
S by which is meant ‘sentences that pay less attention to S
the personal circumstances of the offender and focus
primarily upon the need for the courts to convey a
T T
message that an offender can expect to be dealt with
more severely so as to deter others than he would be
U were it only his personal wrongdoing which the court U
CRT18/26.10.2012/CC 13 HCCC38/2012/Sentence
V V
A had to consider’. But that does not require a blind A
eye to be turned to individual circumstances. Whilst,
normally, unlicensed possession of a firearm will
B result in an immediate custodial sentence, often a B
substantial term, there will be truly exceptional cases
where the imposition of a non-custodial term may be
C C
justified; although the sentencing tribunal will be
expected to furnish a sensible and clear explanation
D for taking that exceptional course.” D
At paragraph 37, the court stated:
E E
“...As a major and densely populated city, Hong Kong is
a remarkably safe place and known to be so. One of the
F F
reasons it is safe, we suggest, is to be found in the
strict gun control laws of this jurisdiction and the
G absence of guns on its streets. The community, with G
the assistance of the courts, is intent on keeping it
that way.
H H
38. What then are exceptional circumstances? It would
I
be unwise to suggest examples but we suggest that an I
exceptional case will tend to be the case where the
reasons for a non-custodial sentence, when explained,
J will readily be understood by the public to be J
sufficiently unusual to warrant a departure from the
tough norm; in such a case general deterrence is not
K undermined. ...in many cases general deterrence is K
realistically the true and only deterrent objective and
L it is an objective which will tend significantly to L
outweigh considerations personal to the offender.”
M The court in Yan Shen concluded eventually that the M
circumstances described in that case were not so exceptional
as to justify a non-custodial sentence but because of post-
N sentencing factors, they would not allow the application for N
review. They indicated that the appropriate sentence in
O that case, after plea, should have been in the region of 18 O
months’ imprisonment.
P There are certain similarities between Yan Shen and the P
present situation in that the defendant is a person of good
character and reputation. He did not intend to use the
Q Q
items for an unlawful purpose. He had suffered symptoms of
depression as a result of the incident and his arrest, his
R remand and his waiting for trial had also caused him great R
personal distress.
S Similarly, his remand in Siu Lam Psychiatric Centre for more S
than 70 days had been traumatic for him. He had lost his
arms and ammunition licence. His hobby which had been such
T T
a mainstay of his life for 25 years is no longer available
to him. There is a financial loss involved in the
U confiscation of the weapons and ammunition which will be U
CRT18/26.10.2012/CC 14 HCCC38/2012/Sentence
V V
A ordered by the court, and it is possible that had he been A
obliged to keep all his arms and ammunition at an armoury,
away from his home, it is possible that this offence might
B not have occurred. B
The defendant has pleaded guilty and has been fully co-
C C
operative in the investigation. I must note, however, that
the defendant knew what he was doing and the risk he was
D running with unlicensed weapons. Giving him the benefit of D
as much doubt as I can, the storage arrangements were not
satisfactory. The guns would have been accessible to
E anybody who entered the flat with nefarious intent. Items E
such as the grenade and the tear gas cylinder were
intrinsically dangerous and could cause harm to the
F F
inhabitants of the flat.
G Under those circumstances, I do not see that a non-custodial G
sentence is a realistic option. However, I can see no
advantage in imposing a very lengthy sentence in this case
H and taking all factors into account, I believe that the case H
should be dealt with by a sentence which is deterrent but
I
which is not so severe as to destroy the defendant’s life. I
In this case, I have decided that 18 months’ imprisonment is
J the appropriate sentence and that is the sentence I pass. J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT18/26.10.2012/CC 15 HCCC38/2012/Sentence
V V
A HCCC38/2012 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 38 OF 2012
C C
-----------------
D HKSAR D
v
E E
Leung Kwok-chi (梁國熾)
F F
-----------------
G Before: The Honourable Madam Justice Beeson G
Date: 26 October 2012 at 11.01 am
Present: Mr David Chan, ADPP of the Department of Justice, for
H H
HKSAR
Mr Chan Siu-ming, instructed by Kevin Ng & Co,
I assigned by DLA, for the Accused I
Offence: Possession of arms and ammunition without licence (無牌
管有彈藥)
J J
---------------------------------
K Transcript of the Audio Recording K
of the Sentence in the above Case
---------------------------------
L L
COURT: The defendant, Leung Kwok-chi, pleaded guilty to one
charge of possession of arms and ammunition without a
M M
licence, contrary to section 13(1) and (2) of the Firearms
and Ammunition Ordinance, Cap.238.
N N
The charge alleged that on 15 April 2011 at his home in
Fu Cheong Estate, the defendant had in his possession a
O large quantity of ammunition and a number of firearms O
without a licence; those items are set out in the
particulars of the charge as items 1 to 15:
P P
(1) one United States origin Thompson Contender firearm
Q consisting of one “receiver assembly” and one Q
barrel;
(2) eight silencers;
R (3) four firearm barrels; R
(4) one Crosman Classic Pellet Rifle (air gun);
(5) one ERMA WERKE Mod EGR 66 Kal 9 mm Revolver;
S S
(6) one RAM Combat cal. 43 S/N RC08F00305 (air gun);
(7) one PTB Revolver;
T (8) one Crosman air gun; T
(9) one ORION 12Ga Calibre Flare Pistol;
(10) one piece of 38 mm cartridge smoke yellow;
U U
CRT18/26.10.2012/CC 1 HCCC38/2012/Sentence
V V
A (11) one piece of 1.5 inch Ferret liquid CS, Barricade- A
penetrating cartridge, complete;
(12) 2,173 rounds of 0.22 calibre ammunition;
B (13) 640 rounds of 0.38 calibre ammunition; B
(14) 659 rounds of 9 mm calibre ammunition; and
(15) 109 rounds of 357 Mag calibre ammunition.
C C
The offence came to light because the defendant went to the
D hospital to obtain medical treatment for a gunshot wound to D
his left thigh. The case was reported to the police by the
hospital staff and in answer to inquiries, the defendant
E said that he shot himself accidentally while he was cleaning E
a rifle. He had given the same explanation to the hospital
staff.
F F
The defendant was treated at the hospital for a 1 cm wound
G over the anteromedial thigh on the left side and an exit G
wound, also 1 cm, over the posterior thigh. He underwent an
emergency operation on 19 April 2011 and was discharged from
H hospital on 27 April 2011. He had been arrested on 16 April H
2011 and a statement was taken from him while he was in the
I
hospital. I
A police search of the flat revealed, inter alia, a licensed
J Thompson Contender 0.22 calibre rifle on the floor with a J
fired cartridge case jammed in the chamber. A bullet hole
was found on a chair and a bullet fragment was found beneath
K the chair. A large quantity of firearms, pistols, guns, K
component parts for guns, ammunition and miscellaneous arms-
L related items were found in the flat. L
The defendant, at the time of this offence, held Arms and
M Ammunition Licence No. 7755, which was first issued on M
8 March 1985 and which permitted him to have specific
firearms with recorded serial numbers and a prescribed
N quantity of appropriate ammunition. Of the 14 items which N
were licensed, three were required to be kept at the Rifle
O Association premises but the other items were permitted to O
remain in the defendant’s flat. A shotgun, two rifles and a
pistol, all of which were operative, were kept in the flat
P together with other items of weaponry which were deactivated P
in accordance with the authorisation.
Q Q
Under the terms of his licence, the defendant was permitted
to have ammunition inside the flat, namely 300 rounds of 12
R gauge calibre ammunition and 400 rounds of 0.22 calibre R
ammunition. In fact, the defendant kept ammunition as
follows: 300 rounds of 12 gauge calibre ammunition; 2,573
S rounds of 0.22 calibre ammunition; 659 rounds of 9 mm S
calibre ammunition; 940 rounds of 0.38 calibre ammunition
and 109 rounds of 357 Mag calibre ammunition.
T T
Firearms and ammunition which were not authorised by the
U licence were found in the flat. There was a metal locker in U
CRT18/26.10.2012/CC 2 HCCC38/2012/Sentence
V V
A the flat which was purportedly a gun locker but it was not A
large enough to store all the firearms and ammunition
recovered, and when the police searched the flat, it did not
B have anything inside it except the magazine of a gun. It B
was open.
C C
The defendant was asked about the source of the unlicensed
firearms and other items but could only give vague answers.
D The basis of his admissions was that he had purchased the D
items many years ago but could not recall where he had
purchased them from. Eight silencers which were found in
E his flat, which is item 2 in the charge, were said to have E
been purchased many years ago and he could not recall the
name of the shop.
F F
He had picked up a live smoke grenade - which is Exhibit 161
G - from a firing range in Pak Lai years ago and had since G
kept it for his collection. A CS grenade, which is a ‘tear
gas’ grenade - Exhibit 162 - he had picked up in a refugee
H camp and kept. The CS grenade contained noxious liquid and H
gas which, on impact, could be released. However, there was
I
no firing device such as was needed for it in the flat. The I
defendant recalled that one firearm had been bought from the
Universal Toy Gun Shop in Waterloo Road more than 20 years
J ago. The defendant was a retired Correctional Services J
Officer and presumably was working as such when he found the
tear gas grenade in the refugee camp.
K K
There are a number of matters pertinent to consideration of
L sentence relating to this offence. First of all, this is by L
its nature a very serious offence punishable by a maximum of
14 years’ imprisonment and a maximum fine of $100,000 as set
M out in the Ordinance. Here there was a very large number of M
items, none of which seemed to be properly secured and
photographs show that the whole flat appears to have been
N used as an insecure gun locker. The items, including the N
ammunition, appear to have been kept under lock and key in
O some cases but, in most cases, were accessible to anybody. O
A sketch plan showed how widespread the distribution of
P ammunition and arms was and the photographs produced P
confirmed that. Some of the items were gun component parts
which could be easily converted to working order, for
Q Q
example, silencers, barrels, receivers and adapters.
Further, there was a plenitude of compatible ammunition far
R in excess of the quantities that were permitted by the R
defendant’s licence.
S The defendant had a clear record. The court, concerned by S
the number and nature of the items found in the flat and the
defendant’s insistence that he did not remember, despite his
T T
collecting habit, where the items had come from, considered
it was appropriate to obtain a background report and a
U psychologist’s report before sentencing. The background U
CRT18/26.10.2012/CC 3 HCCC38/2012/Sentence
V V
A report was obtained. It was detailed and set out the A
defendant’s family history, his education history and his
employment history.
B B
Before joining the Hong Kong Correctional Services
Department in 1970, he had done various jobs. Later, he
C C
worked as a Prison Officer and Assistant Officer until his
retirement in 2001. He had worked in a number of
D correctional institutions, refugee camps, remand centres, D
detention centre and drug treatment centre.
E He had been a member of the Hong Kong Rifle Association E
since 1984 and the CSD Gun Club since 1986 as well as the
Hong Kong Practical and Shooting Association since 1988. In
F F
addition, he belonged to other overseas gun clubs such as
the Winnipeg Police Revolver Club and Canadian Police
G Combaters Association. G
The defendant told the reporting officer that he collected
H and obtained the guns that had been deactivated and bought H
from his friends. He also collected air guns and electric
I
guns from gun toyshops. He said he only used a few of the I
guns while many of those in his possession had not been used
at all.
J J
According to him, most of the bullets found could not be
used while those that could be used were used for practising
K and competitions. He said he sometimes bought more bullets K
as they were out of stock on occasion. He said he was not
L aware that he had so many non-used bullets left after L
practising and competitions. According to him, the guns had
been bought before his retirement for practising and taking
M part in such competitions. He spent at that time $1,500 to M
$2,000 on bullets a month, with $5,000 to $10,000 being
spent on buying guns each month before his retirement.
N N
The defendant’s wife described her husband as a responsible
O husband and loving father. According to her, the accused O
had no vices and his hobbies were making model planes,
collecting antiques and guns. His gun hobby, according to
P her, had not affected the family and he had made regular P
financial contribution to the family. According to his
wife, the accused was careful about locking the guns up
Q Q
properly at home. It is difficult to consider that as being
particularly accurate given the number of guns that were
R found in the photographs. R
Both the accused and his wife pleaded with the reporting
S officer for a lenient sentence. The wife said that she S
needed the husband to take care of her because she was
suffering from diabetes, hypertension and gallstones and she
T T
said she was finding it difficult to believe that the
accused was in prison when he had once worked in prison
U himself. U
CRT18/26.10.2012/CC 4 HCCC38/2012/Sentence
V V
A A
The other report was a psychologist report which was
prepared by Dr Anita C Leung who interviewed Mr Leung and
B his wife. She confirmed that the defendant had been brought B
up in humble circumstances and had completed only up to
Primary 5. In 1970, he applied for a job in Correctional
C C
Services Department and worked there until his retirement.
He had married in 1972 and had a daughter and a son, born in
D 1974 and 1978 respectively. His daughter had suffered from D
Systemic Lupus Erythematosus for four to five years which
involved her going in and out of hospital.
E E
In 1992 his daughter died suddenly, aged 18 years, and from
about that time, the defendant became more absorbed in his
F F
interest in arms and shooting. He became obsessed by
collecting all sorts of deactivated firearms, model guns,
G air guns, accessories, and blank or deactivated cartridges G
and derived satisfaction from cleaning this collection when
nobody was around at home.
H H
He had joined the Hong Kong Rifle Association as a member in
I
1984 and was a founding member of the Gun Club of the I
Correctional Services Department Sports Association which
was formed in 1985. He represented the Correctional
J Services in competitive shooting matches. He served as a J
volunteer in the shooting range before and after his
retirement. He had developed satisfying relationships in
K the field of shooting, both locally and overseas. K
L The defendant retired in 2004 at the age of 54 because he L
was suffering from heart problems. In 2003, his son’s spine
was injured while he was working as a temporary casual
M worker and the defendant used up the lump sum from his M
pension on medical treatment and rehabilitation for his son.
N According to Dr Leung, Mr Leung felt confused and helpless N
at this stage. He had attempted to jump out of a window
O while he was in the hospital. He had been transferred to O
Siu Lam Psychiatric Centre and remanded for more than 70
days. He told her that he had trouble sleeping at night and
P had nightmares. The defendant also told Dr Leung that he P
intended to give up his hobby and give away all his arms and
ammunition in case he committed an offence again. He had
Q Q
begun to develop other interests, such as fishing and
construction of model airplanes to play with his grandson.
R R
A psychological profile of the defendant was done according
to the Millon Clinical Multiaxial Inventory. That portrayed
S a rule-bound and duty-bound personality, concerned about S
doing things correctly and responsibly and accepting
punishment for wrongdoing. It was also suggested that he
T T
was committed to personal relationships and modest about his
own accomplishments. The psychologist noted prominent
U U
CRT18/26.10.2012/CC 5 HCCC38/2012/Sentence
V V
A symptoms of anxiety, depression and post-traumatic stress A
disorder.
B Dr Leung described the defendant as an upright and modest B
person, law-abiding and committed to his family. Shooting
had been his only hobby for the past 25 years. He had
C C
achieved much in international games and had developed
satisfying relationships internationally and locally through
D the sport. He had acquired the qualification of a Range D
Conducting Officer and had volunteered for that service for
a number of years.
E E
The death of his daughter, his failing health and his son’s
injury caused him to feel losses and this had led to him
F F
becoming more obsessed and collecting all sorts of
deactivated firearms, air guns, model guns, accessories and
G blank or deactivated cartridges and cleaning his collection. G
His accidental injury, his being charged with possession of
H firearms and ammunition without a licence and his H
experiences in the police custodial cell and Siu Lam
I
Psychiatric Centre were all causes of trauma to him. He I
regretted his obsession with his hobby and presented to
Dr Leung as anxious, depressed and helpless.
J J
Dr Leung assessed him as a person of good character and
described him as a constructive asset to the community. She
K said that he needed to be helped to overcome his grief and K
trauma and to have his quality of life enhanced.
L L
As well as those reports, after I had adjourned for
sentence, I considered it advisable to have some explanation
M from the Licensing Authority about policy regarding arms and M
ammunition. Accordingly, on 16 October 2012, a hearing was
arranged where Chief Inspector Chow Ngai-kong, who is
N attached to the Police Licensing Office, very kindly N
attended court, all parties being present, to answer
O questions relating to policies and practices governing arms O
and ammunition licensing and to tell the court what
supervision was given to licensees. I must say that I am
P very grateful to the Chief Inspector for that information. P
I paraphrase what was discovered as a result of what the
Q Q
Chief Inspector told the court. Firearms and ammunition
licences can be applied for by any citizen of Hong Kong aged
R 18 or above, who is a fit and proper person, who has a good R
reason for possession and who will keep the guns and
ammunition in such a way that they will not cause concern
S for the security or safety of the public. The reasons for S
possession are effectively for sports competitions and
recreation purposes. Each licence holder must be affiliated
T T
to a gun club. Applicants do not have to provide referees;
no fingerprints are taken; and health checks are not
U mandatory. U
CRT18/26.10.2012/CC 6 HCCC38/2012/Sentence
V V
A A
There are 19 registered gun clubs in Hong Kong. Guns are
inspected prior to the licence being granted. The gun club
B certifies the model number and description and makes a B
recommendation. Then what Chief Inspector Chow referred to
as ‘frontline officers’ would check the guns and their
C C
storage before and after the issue of the licence. The
amount of ammunition which is permitted to be kept depends
D on the amount which is needed for competitive purposes and D
which is appropriate for the particular firearm.
E The basic condition is that guns and ammunition are stored E
separately in locked containers if kept at home. The
licensee is subject to annual inspection, although this is
F F
not done on a surprise visit basis, but licensees are
informed in advance that an inspection will be carried out.
G I would comment that, in my view, such a form of inspection G
is of little value as advance notice means the licensee can
put his arms and ammunition in order solely for the purposes
H of inspection. H
I
As at 1 October 2012, there were 483 licensees in Hong Kong I
and those licences covered a total of 3,140 live weapons.
There are 23 licensed arms dealers. The dealer will issue
J an agreement saying that he will sell a gun before a licence J
is issued, but this occurs almost simultaneously with the
issue of the licence. Gun parts, component gun parts, are
K required to be licensed separately. K
L The court was informed that before 1997, arms and ammunition L
could be stored at the home of the licensee if approval was
given to storage conditions. After 1997, an applicant for a
M new licence had to store guns and ammunition at an approved M
armoury. However, those licensees who held licences before
1997 - and the defendant comes into this category - were and
N are still permitted to keep approved arms and ammunition at N
home. This appears to be based on a belief that the
O licensee should have a legitimate and reasonable expectation O
that the pre-1997 conditions should apply. However, that
cannot be right.
P P
There are 147 licensees who obtained licences before 1997
and those licences cover 372 guns which can still be stored
Q Q
at the home of the licence holder. The pre-1997 licensees
are allowed to keep the guns at home if they apply to do so.
R This applies to rifles, shotguns or air pistols. However, R
because handguns were easier to conceal, they were not
allowed to be stored at home either before or after 1997.
S There appeared to be no limit to the number of guns that can S
be held by one person and a licensee generally will have one
gun of each calibre and can have a spare gun in case of
T T
malfunction.
U U
CRT18/26.10.2012/CC 7 HCCC38/2012/Sentence
V V
A So prior to 1997, deactivated firearms were not required to A
be stored in an armoury but since 1997, apparently, those
items must be stored in a secured cabinet at home.
B Amendments to the licensing conditions are printed out and B
notified to the licensee.
C C
There appear to be at least two flaws in the licensing
system, perhaps three. The first is that I note from the
D licence of the defendant that his photograph was still the D
same as it was in 1985. Second, there is no surprise
inspection done in respect of the licence holders. The most
E worrying flaw is that the licensees who still hold licences E
from pre-1997 are entitled to keep guns at home. I can see
no justification for maintaining that system in present-day
F F
Hong Kong. It should be the case that all firearms are kept
in an armoury attached to a properly licensed gun club.
G G
It is particularly difficult to understand, for instance,
why it was justified or necessary for the defendant, who was
H living in a small public housing flat in an urban area, to H
have a shotgun, two rifles and a pistol together with a
I
substantial quantity of compatible ammunition kept at his I
home.
J Photographs taken for evidential purposes show that various J
items were strewn throughout the flat, which is about 300
square feet. There was no especially complicated lock on
K the front door of the flat which opened directly into the K
living area. Offending items were found on open shelves, in
L unlocked drawers and on the floor. Five boxes containing L
unlicensed ammunition of various calibres were found inside
the wardrobe in the bedroom, clearly exposed and accessible.
M A pistol was inside the cupboard, a Remington shotgun, a gun M
barrel, two firearm parts, a box containing a pistol were
also found in the bedroom. A black bag containing a Colt
N pistol and a box containing gun parts was found in the N
bedroom. Another revolver in a brown holster was found in
O the wardrobe and other gun-related items were found in the O
bedroom as well.
P I do accept that some of these items were replica items and P
I accept that a number of them were deactivated. However,
it is possible, although I am told it is difficult, to
Q Q
reactivate deactivated items, but it is also possible to
modify replica items so that they are capable of firing
R ammunition. R
A Crosman Classic Pellet rifle was found near the computer
S desk in the living room. A revolver with a black holster S
was found underneath the computer desk. A 7.62 mm pistol,
one of the licensed firearms, was found on a bookshelf in
T T
the living room. A quantity of ammunition was found in a
display cabinet in the living room. Another cabinet
U contained yet more ammunition. There was no strong lock on U
CRT18/26.10.2012/CC 8 HCCC38/2012/Sentence
V V
A either cabinet apparent from the photographs. A box A
containing firearms was found on top of the wardrobe. A box
containing an air gun was found on the floor underneath the
B coffee table. B
I catalogue the placement of these items and their
C C
apparently inadequate storage to show how dangerous the
collection of guns could actually be.
D D
A large amount of material was put before the court in the
course of mitigation. I have read it all and I have
E considered it carefully, but I do not propose to repeat it E
all here. There were a number of letters from persons who
have and have had close connections with the defendant,
F F
mostly through the Correctional Services Department or the
gun clubs to which he belonged, and those writers
G effectively gave character evidence for this defendant. G
Mr Lee Gar-san, the retired General Manager of Correctional
H Services Department, had worked with the defendant and also H
took part in sports shooting activities and competitions in
I
Hong Kong and overseas with him and had taken courses on I
guns maintenance and firearms training. He confirmed that
the defendant was an enthusiastic participant in competitive
J shooting and had also used his expertise in the course of J
his duties. He believed that he was a conscientious husband
and father.
K K
Mr Samson Chan who had worked with the defendant and had
L contact with him through the formation of the CSD shooting L
club, referred to him as a highly responsible and self-
disciplined CSD officer who had not taken any nonsense from
M other shooting team members, regardless of their rank, M
during shooting practices and competitions. He confirmed
that after the defendant’s daughter’s death and later, his
N son’s serious injury, the defendant had been helped through N
those difficult times by his passion for shooting sports and
O the comradeship and support of his team members. Mr Samson O
Chan attributed the defendant’s present predicament to an
over-zealous passion for the shooting sports.
P P
Included in the mitigation material were letters from the
persons who were involved with the defendant through the
Q Q
Hong Kong Practical Shooting Association and the Hong Kong
Rifle Association, both of whom attested to his enthusiasm
R and the amount of time and effort he had put into his R
activities. They sought leniency for the defendant.
S There was also a letter from the defendant himself, S
expressing his great remorse. His wife, his son, his
daughter-in-law and grandson had all written letters
T T
extolling the good qualities of the defendant as husband,
father and grandfather. All referred to him as being
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A traumatised by these events and sought leniency in terms of A
sentence.
B Other letters in mitigation related to his work with B
Correctional Services Department from 1970 to 2001 when he
retired, including a commendation that he received from the
C C
Commissioner of Correctional Services.
D A large number of certificates was exhibited which attested D
to the defendant’s skill as a marksman and gave some idea of
the many occasions on which he had been a competitor in
E competitions both in Hong Kong and overseas between 1986 and E
2010.
F F
Details of his Range Officer appointment were set out for
the period 1996 until 2009.
G G
The court was also informed of the charitable assistance
that the defendant had given to sponsor children in need.
H H
Having digested the material put before me, it appears that
I
the defendant is not just a man of clear record, but that he I
is a man of positive good character. He was considered a
good employee while working for CSD. He is known by his
J family as a loving and supportive husband, father and J
grandfather.
K He was an enthusiastic participant in shooting sports and at K
times of personal stress appears to have become even more
L zealous in taking part in such sports. Unfortunately, the L
present offence indicates that at some stage this urge to
collect gun-related items has become more of an obsession
M than the absorbing hobby that it should have been. M
No other explanation seems to account satisfactorily for his
N having so much unlicensed and potentially dangerous material N
at home. Examples of immediate dangers posed by that
O material are the tear gas canister and the grenade, both of O
which were considered by the ballistics expert to be very
volatile.
P P
There was no real explanation offered as to the reason the
rifle that he was cleaning had been loaded. Nor has there
Q Q
been any satisfactory account as to where so much of the
unlicensed material came from.
R R
After 25 years as a licensed gun holder, the defendant can
have been in no doubt that he was wrongfully in possession
S of unlicensed material. I accept that he is not charged S
specifically with breaches of his licence conditions, but
the fact that these licensed weapons were not stored
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correctly is indicative of how far he has strayed from
commonsense and prudence when dealing with firearms and
U ammunition. U
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A A
The defendant had invested a lot of time and energy in his
work as a Range Officer. He was licensed as a Range Officer
B at the time of this offence. That makes it even more B
reprehensible that he should possess unlicensed arms and
ammunition, but worse than that, he was living in a house
C C
where this dangerous material was not properly stored. I
note that the defendant had a 9-year-old grandson who could
D certainly have been at risk if he had visited the home where D
his grandfather lived, given the amount of unsecured
material that was there.
E E
The defendant appears to have forgotten entirely the safety
laws that he must have known and practised over the years.
F F
It may be that after 25 years, he considered himself so
proficient with firearms that he thought the rules could be
G ignored. It appears that the gun with which he shot himself G
was a licensed weapon and that he was cleaning it when it
was loaded. That is not the kind of elementary mistake that
H one would expect from a man of his experience. H
I
As I said earlier, the maximum penalty for sentence was 14 I
years’ imprisonment and a fine of $100,000. A starting
point for sentence in excess of 10 years is regularly
J adopted in case such as this. In R v Ho Chun [1992] 1 HKCLR J
86, a sentence of at least 8 years’ imprisonment after a
guilty plea was imposed for possession of firearms and
K ammunition without a licence. That involved a 7.62 mm x 25 K
calibre semi-automatic pistol and 12 rounds of live
L ammunition for that pistol. It was an aggravating feature L
in that case that the gun had been fired.
M In R v Man Hung Pui [1993] 2 HKC 174, a 17-year-old youth M
who pleaded guilty was sentenced to 32 months’ imprisonment.
I note that the possession of a loaded firearm would attract
N a heavier sentence than possession of a firearm without N
ammunition. The possession of an unloaded firearm and
O ammunition calls for a more severe sentence than that for O
possession of an unloaded firearm alone and the possession
of ammunition is usually less serious than the possession of
P arms. P
In this case I note at least one of the guns must have been
Q Q
loaded for the defendant to have caused himself an injury,
but no other guns were found to be loaded in the flat.
R R
In R v Au Yeung Wai Kwong, CACC238/1994, unreported, a
sentence of 8 years after a guilty plea was given and a
S starting point of 12 years was considered appropriate. S
In R v Leung Shiu Lun [1997] HKC 758, which related to
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possession of air rifles and air pistols, the court
considered them less serious than the possession of
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A unlicensed firearms proper and took a starting point of 15 A
months’ imprisonment as being adequate.
B In HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, the guns involved B
were a 9 mm short calibre self-loading pistol, two pistol
magazines designed for a 9 mm short calibre pistol, a 9 mm
C C
pistol silencer, a metal aerosol canister containing tear
gas, and 13 rounds of 9 mm short calibre ammunition. That
D attracted a sentence of 7 years and 4 months’ imprisonment D
after a guilty plea.
E The court commented in that case they would not have E
criticised the judge if he had adopted 12 years as the
appropriate starting point. Such a starting point was said
F F
to be normally appropriate for those who arm themselves with
weapons of this kind in working condition and with
G ammunition available. I accept that that case is not on all G
fours with the present situation.
H In HKSAR v Yau Siu Kai [2001] 1 HKC 427, the weapon involved H
was a fully loaded converted revolver. The defendant was
I
sentenced to 7 years’ imprisonment after a guilty plea. I
In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the general rule
J was stated that deterrence is the purpose of a sentence in a J
case such as this and there is a need to assess the
potential risk posed by the firearms, and it set out the
K factors for consideration which had been referred to by K
Mr Chan.
L L
Chan Chi Fun set out the matters that will be noted, that
the court should take into account; the types of arms and
M ammunition involved; whether the defendant had physically M
carried the arms and ammunition; whether the arms were
loaded; whether the arms had been used; whether the
N defendant intended to use the arms for illegal purposes; N
whether the items were properly cared for or stored or
O whether they were easily accessible by criminals; and O
whether the defendant had a clear record.
P The court went on to say that determination of sentence P
depends on the court’s assessment of the potential risk
imposed by the arms and ammunition under the possession of
Q Q
the defendant, taking into account the circumstances of the
case, the defendant’s background and the possibility of the
R arms and ammunition being used by other persons. Under R
circumstances where the defendant carried the arms which
were loaded and the arms had been used, the starting point
S on conviction would be 12 years’ imprisonment. S
In HKSAR v Kwai Ping Hung [2007] 1 HKC 620, there was a
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maximum sentence of 14 years’ imprisonment given because the
guns and ammunition in that case were effectively an arsenal
U of a great number of items. U
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A A
In HKSAR v Chau Lap Pui [2007] 2 HKC 342, which related to
possession of a bottle of pepper spray, a starting point of
B 6 months’ imprisonment was considered proper. B
In HKSAR v Lui Fui [2008] 3 HKC 218, which involved the
C C
possession of a grenade, there was no evidence that the
defendant had any intention to use it and a sentence of 33
D months was upheld by the court. D
The most recent case of significance is that of Secretary
E for Justice v Yan Shen CAAR10/2011 which was an application E
for review by the Secretary for Justice on the grounds that
the sentence imposed was manifestly inadequate and wrong in
F F
principle. The applicant had been found at the airport in
possession of a pistol with a magazine without a licence.
G He had been sentenced to 260 hours of community service and G
fined $50,000. It was accepted by the applicant that the
respondent did not intentionally or knowingly take the gun
H to the airport for various reasons which were set out in the H
judgment and it had slipped his mind that he had it in his
I
possession. I
In that case, a psychologist’s report and a psychiatrist’s
J report were put before the court and the judge called for a J
psychologist’s report to be prepared by a government
psychologist and also asked for a background report. The
K defendant was said to be suffering from an adjustment K
disorder and anxiety but no evidence of any violent
L temperament was found and although the government L
psychologist did not make a similar diagnosis, he did not
contradict the finding of the other psychologist.
M M
The court in Yan Shen considered the sentencing exercise
difficult because the defendant in that case was a man of
N unblemished and impressive record, who was highly successful N
in his banking career, but had nevertheless been convicted
O of a very serious offence. The judge accepted that he had O
no intention to use the firearm and that he had previously
taken great precautions to keep the firearm in safe custody.
P The court stated at page 14: P
“However, in the case of unlicensed possession of
Q Q
firearms, societal protection is a paramount
consideration; it is a category of offence in which the
R sentencing court is expected to give particular weight R
to that paramount consideration. It is a category of
offence which in general requires a deterrent sentence
S by which is meant ‘sentences that pay less attention to S
the personal circumstances of the offender and focus
primarily upon the need for the courts to convey a
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message that an offender can expect to be dealt with
more severely so as to deter others than he would be
U were it only his personal wrongdoing which the court U
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A had to consider’. But that does not require a blind A
eye to be turned to individual circumstances. Whilst,
normally, unlicensed possession of a firearm will
B result in an immediate custodial sentence, often a B
substantial term, there will be truly exceptional cases
where the imposition of a non-custodial term may be
C C
justified; although the sentencing tribunal will be
expected to furnish a sensible and clear explanation
D for taking that exceptional course.” D
At paragraph 37, the court stated:
E E
“...As a major and densely populated city, Hong Kong is
a remarkably safe place and known to be so. One of the
F F
reasons it is safe, we suggest, is to be found in the
strict gun control laws of this jurisdiction and the
G absence of guns on its streets. The community, with G
the assistance of the courts, is intent on keeping it
that way.
H H
38. What then are exceptional circumstances? It would
I
be unwise to suggest examples but we suggest that an I
exceptional case will tend to be the case where the
reasons for a non-custodial sentence, when explained,
J will readily be understood by the public to be J
sufficiently unusual to warrant a departure from the
tough norm; in such a case general deterrence is not
K undermined. ...in many cases general deterrence is K
realistically the true and only deterrent objective and
L it is an objective which will tend significantly to L
outweigh considerations personal to the offender.”
M The court in Yan Shen concluded eventually that the M
circumstances described in that case were not so exceptional
as to justify a non-custodial sentence but because of post-
N sentencing factors, they would not allow the application for N
review. They indicated that the appropriate sentence in
O that case, after plea, should have been in the region of 18 O
months’ imprisonment.
P There are certain similarities between Yan Shen and the P
present situation in that the defendant is a person of good
character and reputation. He did not intend to use the
Q Q
items for an unlawful purpose. He had suffered symptoms of
depression as a result of the incident and his arrest, his
R remand and his waiting for trial had also caused him great R
personal distress.
S Similarly, his remand in Siu Lam Psychiatric Centre for more S
than 70 days had been traumatic for him. He had lost his
arms and ammunition licence. His hobby which had been such
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a mainstay of his life for 25 years is no longer available
to him. There is a financial loss involved in the
U confiscation of the weapons and ammunition which will be U
CRT18/26.10.2012/CC 14 HCCC38/2012/Sentence
V V
A ordered by the court, and it is possible that had he been A
obliged to keep all his arms and ammunition at an armoury,
away from his home, it is possible that this offence might
B not have occurred. B
The defendant has pleaded guilty and has been fully co-
C C
operative in the investigation. I must note, however, that
the defendant knew what he was doing and the risk he was
D running with unlicensed weapons. Giving him the benefit of D
as much doubt as I can, the storage arrangements were not
satisfactory. The guns would have been accessible to
E anybody who entered the flat with nefarious intent. Items E
such as the grenade and the tear gas cylinder were
intrinsically dangerous and could cause harm to the
F F
inhabitants of the flat.
G Under those circumstances, I do not see that a non-custodial G
sentence is a realistic option. However, I can see no
advantage in imposing a very lengthy sentence in this case
H and taking all factors into account, I believe that the case H
should be dealt with by a sentence which is deterrent but
I
which is not so severe as to destroy the defendant’s life. I
In this case, I have decided that 18 months’ imprisonment is
J the appropriate sentence and that is the sentence I pass. 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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