A A
DCCC 941/2013
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 941 OF 2013 C
D
---------------------- D
HKSAR
E E
v
F Jang Youngsu F
G ----------------------- G
Before: Deputy District Judge Casewell
H Date: 12 February 2014 at 3.41 pm H
Present: Mr Karl Chu, PP of the Department of Justice, for
HKSAR
I Mr Wu Kam-fun, Roderick, instructed by S H Chan & Co, I
assigned by the Director of Legal Aid, for the
J defendant J
Offence: Attempted possession of arms and ammunition without a
licence (企圖無牌管有槍械及彈藥)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. The defendant has been convicted after trial of one N
offence of attempted possession of arms and ammunition without a
O licence, contrary to section 13 of the Firearms and Ammunition O
Ordinance.
P P
2. The details of the facts of the case can be seen in the
Q Q
reasons for conviction I gave earlier. A very brief summary is
R that the defendant attempted to snatch a police officer’s R
submachine gun at the airport. The incident was of very short
S duration and was dealt with without any great difficulty by the S
police officer concerned, simply creating a minor disturbance,
T T
the defendant’s motivation being unclear, but he appeared to be
overwrought and frustrated, and, on his own admission, had drunk
U U
heavily on the aeroplane before he arrived at the airport.
CRT31/12.2.2014/KS 1 DCCC 941/2013/Sentence
V V
A A
3. The defendant is a man of clear record in Hong Kong and
B B
also, I understand, in Korea. He is a Korean national who was
C coming here on holiday. He is aged 42. He is by occupation a C
labour attorney in Korea. His wife and his daughter live in the
D Republic of Korea. He is a resident of that country. His D
daughter is aged 12 and she is studying.
E E
4. As alluded to by his counsel, Mr Wu, the defendant has
F F
an excellent background report. He is clearly a man of
G accomplishment in his chosen field. He studied hard to achieve G
his position as a lawyer, was a scholarship student at the
H National University of Korea, served in the Army and the Police, H
and provided legal services to the underprivileged and minimum
I I
wage earners. It is somewhat extraordinary to find a man of that
accomplishment in the position he is in today. Clearly the
J J
events at the airport on 29 August were out of character for
K
this particular gentleman. K
L 5. Turning to the sentencing considerations, I am dealing L
here with an attempt to commit the offence, rather than
M completed offence, and in relation to these matters, it is a M
fairly important distinction in respect of this case. There is
N N
no overall tariff sentence for this offence, either the
completed offence or the attempt to do so. It has been observed
O O
that it would be unusual that an attempt should be visited with
P punishment to the maximum extent that the law permits in respect P
of the completed offence.
Q Q
6. In respect of offences involving firearms, they very
R R
much turn on their own particular facts. In respect of the
completed offence, it is obviously seen as a very serious matter
S S
in Hong Kong. Sentences of at least 8 years’ imprisonment after
T a guilty plea have been imposed for simple possession of T
firearms and ammunition without a licence.
U U
CRT31/12.2.2014/KS 2 DCCC 941/2013/Sentence
V V
A A
7. In one particular case, in HKSAR v Chan Chi Fu [2006]
4 HKLR, the case said that the general rule was that:
B B
C “Deterrence is the purpose of a sentence in cases such C
as this and there is a need to assess the potential
risk posed by the firearms in consideration. The court
D should take into account the types of arms and D
ammunition involved, whether the defendant had
physically carried the arms, whether the arms were
E E
loaded, whether they had been used, whether the
defendant intended to use the arms for illegal purpose,
F whether the defendant had a clear record; and the F
determination of sentence depends on the court’s
assessment of the potential risk imposed by the arms
G and ammunition.” G
H 8. In another case of Secretary for Justice v Yan Shan H
10/2011, the court said:
I I
“In the case of unlicensed possession of firearms,
J societal protection is of paramount consideration. The J
court is expected to give particular weight to that
K
paramount consideration. It is a category of offence K
which generally requires a deterrent sentence, and that
is a sentence that pays less attention to the personal
L circumstances of the offender and focuses on the need L
of the court to convey a message that an offender can
expect to be dealt with more severely so as to deter
M others. But that does not require a blind eye to be M
turned to individual circumstances.”
N N
9. There is an observation that Hong Kong is a major and
O densely-populated city. I might add that its airport is O
similarly dense and heavily populated.
P P
10. Looking at those principles in relation to this
Q Q
particular offence and the offender, what I have here is an
attempt to snatch or obtain a loaded firearm. Although it was a
R R
firearm that was on “safety” and in the hands of a professional
S officer, so the risk of accidental discharge was low, the S
firearm itself was a firearm with great lethal power: a Heckler
T and Koch machine gun with loaded ammunition; in the wrong hands, T
capable of extreme lethal destruction.
U U
CRT31/12.2.2014/KS 3 DCCC 941/2013/Sentence
V V
A A
11. The defendant’s actions took place in a crowded locale
with many passers-by and people coming through the airport, and
B B
almost a certainty of injury if there had been a discharge of
C the firearm. C
D 12. There is, of course, in any attempt to seize a firearm, D
a risk of its discharge. As I have said in my judgment, that
E E
risk was almost entirely eliminated by the professional actions
of the officer who was holding the submachine gun at the time.
F F
G 13. I now look at some of the mitigating factors. There is G
the personal background of the defendant. He has, as I say, a
H good, and as I said, at one point exceptional circumstances from H
his personal background, and his action has already led, as I
I I
understand, to great difficulties for him. He has been in
Hong Kong since the date of the offence. He has been absent from
J J
his wife and child for that period. He has been unable to
K
continue his practice. I am told that he faces personal K
bankruptcy. Any further detention in Hong Kong would, of course,
L subject him to further estrangement from his wife and child. L
M 14. Another factor is, of course, the nature of the attempt M
that took place. I believe it is safe to describe it as
N N
unpremeditated, being the result, apparently, of frustration and
annoyance. I am not dealing here with an attempt to escape
O O
custody or an attempt to escape arrest. The defendant was
P apparently in no danger of being arrested. Police officers were P
simply there because there was a disturbance. And I can describe
Q it as being a bare attempt in the sense that the defendant’s Q
attempt was frustrated at a very early stage by the cool
R R
professionalism of the police officer.
S S
15. Nevertheless, I consider that an attempt such as this
T on a weapon such as we are dealing with here must involve the T
imposition of a sentence of imprisonment.
U U
CRT31/12.2.2014/KS 4 DCCC 941/2013/Sentence
V V
A A
16. The completed offence is an excepted offence which
clearly shows the intent of the legislature that these offences
B B
should deter people from actions such as the defendant here was
C involved in on 29 August. C
D 17. I fully bear in mind I am dealing with a man of clear D
record. I consider the starting point for sentence for a person
E E
of clear record for an offence such as this should be one of
27 months’ imprisonment. There are no other mitigating factors
F F
to reduce that sentence, so that is the sentence I will impose:
G 27 months’ imprisonment. G
H H
I I
J (T Casewell) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/12.2.2014/KS 5 DCCC 941/2013/Sentence
V V
A A
DCCC 941/2013
B B
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C CRIMINAL CASE NO 941 OF 2013 C
D
---------------------- D
HKSAR
E E
v
F Jang Youngsu F
G ----------------------- G
Before: Deputy District Judge Casewell
H Date: 12 February 2014 at 3.41 pm H
Present: Mr Karl Chu, PP of the Department of Justice, for
HKSAR
I Mr Wu Kam-fun, Roderick, instructed by S H Chan & Co, I
assigned by the Director of Legal Aid, for the
J defendant J
Offence: Attempted possession of arms and ammunition without a
licence (企圖無牌管有槍械及彈藥)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N 1. The defendant has been convicted after trial of one N
offence of attempted possession of arms and ammunition without a
O licence, contrary to section 13 of the Firearms and Ammunition O
Ordinance.
P P
2. The details of the facts of the case can be seen in the
Q Q
reasons for conviction I gave earlier. A very brief summary is
R that the defendant attempted to snatch a police officer’s R
submachine gun at the airport. The incident was of very short
S duration and was dealt with without any great difficulty by the S
police officer concerned, simply creating a minor disturbance,
T T
the defendant’s motivation being unclear, but he appeared to be
overwrought and frustrated, and, on his own admission, had drunk
U U
heavily on the aeroplane before he arrived at the airport.
CRT31/12.2.2014/KS 1 DCCC 941/2013/Sentence
V V
A A
3. The defendant is a man of clear record in Hong Kong and
B B
also, I understand, in Korea. He is a Korean national who was
C coming here on holiday. He is aged 42. He is by occupation a C
labour attorney in Korea. His wife and his daughter live in the
D Republic of Korea. He is a resident of that country. His D
daughter is aged 12 and she is studying.
E E
4. As alluded to by his counsel, Mr Wu, the defendant has
F F
an excellent background report. He is clearly a man of
G accomplishment in his chosen field. He studied hard to achieve G
his position as a lawyer, was a scholarship student at the
H National University of Korea, served in the Army and the Police, H
and provided legal services to the underprivileged and minimum
I I
wage earners. It is somewhat extraordinary to find a man of that
accomplishment in the position he is in today. Clearly the
J J
events at the airport on 29 August were out of character for
K
this particular gentleman. K
L 5. Turning to the sentencing considerations, I am dealing L
here with an attempt to commit the offence, rather than
M completed offence, and in relation to these matters, it is a M
fairly important distinction in respect of this case. There is
N N
no overall tariff sentence for this offence, either the
completed offence or the attempt to do so. It has been observed
O O
that it would be unusual that an attempt should be visited with
P punishment to the maximum extent that the law permits in respect P
of the completed offence.
Q Q
6. In respect of offences involving firearms, they very
R R
much turn on their own particular facts. In respect of the
completed offence, it is obviously seen as a very serious matter
S S
in Hong Kong. Sentences of at least 8 years’ imprisonment after
T a guilty plea have been imposed for simple possession of T
firearms and ammunition without a licence.
U U
CRT31/12.2.2014/KS 2 DCCC 941/2013/Sentence
V V
A A
7. In one particular case, in HKSAR v Chan Chi Fu [2006]
4 HKLR, the case said that the general rule was that:
B B
C “Deterrence is the purpose of a sentence in cases such C
as this and there is a need to assess the potential
risk posed by the firearms in consideration. The court
D should take into account the types of arms and D
ammunition involved, whether the defendant had
physically carried the arms, whether the arms were
E E
loaded, whether they had been used, whether the
defendant intended to use the arms for illegal purpose,
F whether the defendant had a clear record; and the F
determination of sentence depends on the court’s
assessment of the potential risk imposed by the arms
G and ammunition.” G
H 8. In another case of Secretary for Justice v Yan Shan H
10/2011, the court said:
I I
“In the case of unlicensed possession of firearms,
J societal protection is of paramount consideration. The J
court is expected to give particular weight to that
K
paramount consideration. It is a category of offence K
which generally requires a deterrent sentence, and that
is a sentence that pays less attention to the personal
L circumstances of the offender and focuses on the need L
of the court to convey a message that an offender can
expect to be dealt with more severely so as to deter
M others. But that does not require a blind eye to be M
turned to individual circumstances.”
N N
9. There is an observation that Hong Kong is a major and
O densely-populated city. I might add that its airport is O
similarly dense and heavily populated.
P P
10. Looking at those principles in relation to this
Q Q
particular offence and the offender, what I have here is an
attempt to snatch or obtain a loaded firearm. Although it was a
R R
firearm that was on “safety” and in the hands of a professional
S officer, so the risk of accidental discharge was low, the S
firearm itself was a firearm with great lethal power: a Heckler
T and Koch machine gun with loaded ammunition; in the wrong hands, T
capable of extreme lethal destruction.
U U
CRT31/12.2.2014/KS 3 DCCC 941/2013/Sentence
V V
A A
11. The defendant’s actions took place in a crowded locale
with many passers-by and people coming through the airport, and
B B
almost a certainty of injury if there had been a discharge of
C the firearm. C
D 12. There is, of course, in any attempt to seize a firearm, D
a risk of its discharge. As I have said in my judgment, that
E E
risk was almost entirely eliminated by the professional actions
of the officer who was holding the submachine gun at the time.
F F
G 13. I now look at some of the mitigating factors. There is G
the personal background of the defendant. He has, as I say, a
H good, and as I said, at one point exceptional circumstances from H
his personal background, and his action has already led, as I
I I
understand, to great difficulties for him. He has been in
Hong Kong since the date of the offence. He has been absent from
J J
his wife and child for that period. He has been unable to
K
continue his practice. I am told that he faces personal K
bankruptcy. Any further detention in Hong Kong would, of course,
L subject him to further estrangement from his wife and child. L
M 14. Another factor is, of course, the nature of the attempt M
that took place. I believe it is safe to describe it as
N N
unpremeditated, being the result, apparently, of frustration and
annoyance. I am not dealing here with an attempt to escape
O O
custody or an attempt to escape arrest. The defendant was
P apparently in no danger of being arrested. Police officers were P
simply there because there was a disturbance. And I can describe
Q it as being a bare attempt in the sense that the defendant’s Q
attempt was frustrated at a very early stage by the cool
R R
professionalism of the police officer.
S S
15. Nevertheless, I consider that an attempt such as this
T on a weapon such as we are dealing with here must involve the T
imposition of a sentence of imprisonment.
U U
CRT31/12.2.2014/KS 4 DCCC 941/2013/Sentence
V V
A A
16. The completed offence is an excepted offence which
clearly shows the intent of the legislature that these offences
B B
should deter people from actions such as the defendant here was
C involved in on 29 August. C
D 17. I fully bear in mind I am dealing with a man of clear D
record. I consider the starting point for sentence for a person
E E
of clear record for an offence such as this should be one of
27 months’ imprisonment. There are no other mitigating factors
F F
to reduce that sentence, so that is the sentence I will impose:
G 27 months’ imprisonment. G
H H
I I
J (T Casewell) J
Deputy District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT31/12.2.2014/KS 5 DCCC 941/2013/Sentence
V V