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DCCC 215/2014
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IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 215 OF 2014
D ____________ D
HKSAR
E v E
GAN BO
F F
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G G
Before: HH Judge Dufton
Date: 8 May 2014
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Present: Mr Joe Hui, PP, of the Department of Justice, for HKSAR
Mr Sanny Kwong of Sanny Kwong & Co,
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assigned by the Director of Legal Aid for the defendant
Offences: (1) Possession of arms without a licence(無牌管有槍械)
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(2) Possession of a simulated bomb (管有假炸彈)
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REASONS FOR SENTENCE
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1. Gan Bo you have pleaded guilty to one charge of possession of
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arms without a licence, namely one stunning device, contrary to section 13
N of the Firearms and Ammunition Ordinance, Chapter 238 and not guilty to N
one charge of possession of a simulated bomb, contrary to section 19 of the
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Summary Offences Ordinance, Chapter 228.
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2. The prosecution ask that this charge be left on the court file
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not to be proceeded with without leave of the court or the Court of Appeal.
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The prosecution however submit that the circumstances of the possession R
of the simulated bomb together with the stunning device are relevant to
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sentence for possession of the stunning device.
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3. In summary in the early hours of the 27 December 2013 the
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police intercepted you outside Central Pier No. 4. On an initial search of
C your rucksack the police found the stunning device together with a C
rechargeable battery. You told the police this was for self-defence.
D D
E 4. On a further search of your rucksack the police found the E
simulated bomb made up of electric wire attached to a digital clock. No
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viable improvised explosive device or explosive was however found.
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5. In passing sentence I have carefully considered everything said
H on your behalf by Mr Kwong including your family circumstances, in H
particular the death of both your father and elder brother in 2011. I take
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into account that you have a clear record. This must however be viewed in
J the context that you had only been in Hong Kong for a few days prior to J
your arrest.
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L 6. There is no tariff for this offence the sentence very much L
depending on the circumstances of the individual case. As was said in
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HKSAR v Fan Kwok Wai CACC 264/2005 important considerations are the
N power of the weapon, that is, what level of voltage it is capable of N
discharging, and whether there is evidence the offender or some other
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person may use the weapon for an unlawful purpose or to facilitate an
P unlawful activity. P
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The power of the stunning device
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7. I have carefully read the two expert reports submitted by the
S prosecution. In summary Assistant Police Telecommunications Inspector S
Chan Che Wah measured the average peak to peak pulsating output voltage
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generated from the stunning device across a resistor load similar to the total
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body resistance of a human being at 77.995 kilo-volts (77,995 volts).
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When discharged for a continuous period of three seconds the stunning
C device is capable of generating 6,250 high voltage pulses. C
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8. The findings of Dr Lam, Senior Forensic Scientist, are that
E when a functional stun device is used on an average healthy person that E
person would be startled and experience intense local pain and muscle
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spasm. Applied for more than 3-5 seconds the person may fall to the
G ground due to muscle paralysis; remain dazed and weak or even G
immobilized for up to several minutes. The electrical shocks generated by
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such devices are however generally considered non-lethal for healthy
I persons. Abrasions or lacerations may result when the sharp metal I
electrodes of the device are pushed forcefully against the skin.
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The use of the stunning device
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L 9. You claim that in the summer of 2009 you were robbed at L
knife point when waiting for a bus and that in 2011 your elder brother was
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also robbed. Tragically your brother died of the wounds inflicted during
N the robbery. Fearful of being robbed again you therefore for self-defence N
bought the stunning device, which devices I am told can freely be
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purchased in electrical appliance shops in the Mainland. As the device has
P a torch function you used the device for illumination because the back alley P
where you lived in quarters provided by your employer had insufficient
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lighting.
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Case law
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C
10. A review of cases can be found in HKSAR v Li Hung Kwan C
[2003] 1 HKLRD 204 where the appellant, an illegal immigrant, claimed to
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pick up from a construction site a stun gun capable of generating some
E 12,000 volts into the human body, which is a much less powerful weapon E
than the one in your possession. The Court of Appeal having reviewed a
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number of cases involving the possession of stun guns said that a starting
G point of 20 months imprisonment was appropriate in the absence of any G
evidence suggesting the stun gun was to be used for illegal purpose.
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11. Mr Kwong refers the court to the case of HKSAR v Wong Wing
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Wong CACC 214/2002 which was considered by the Court of Appeal in Li
J Hung Kwan. The judgment is in Chinese for which there appears to be no J
translation. None has been provided to me due to the late notification that I
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would be hearing the case. However as mentioned in court I have read an
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English digest of this case in the February 2003 edition of the Criminal
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Appeals Bulletin. M
N 12. In Wong Wing Wong the appellant was intercepted at the N
border when he was found in possession of a stun gun with the average
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maximum voltage of 20,000 volts. The appellant claimed he had been
P robbed in the Mainland and therefore bought the stun gun for self- P
protection and for illumination purpose while working in a construction site.
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The appellant further claimed that he unintentionally brought the stun gun
R into Hong Kong. The Court of Appeal held there being no evidence the R
appellant intended to use the stun gun for an unlawful purpose in Hong
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Kong reduced the starting point of 2 years and 6 months to 18 months.
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13. A sentence of 2 years and 6 months imprisonment was
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however upheld for possession of a stun gun capable of discharging a
C maximum of 75,000 volts in HKSAR v Yung Ting Chun CACC 164/1999. C
In R v Wong Chuen Pong CACC 579/1996 a sentence of 2 years was
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affirmed where the appellant pleaded guilty to possession of a stun gun
E which could discharge 60,000 volts. Both these cases were considered by E
the Court of Appeal in Wong Wing Wong and Li Hung Kwan.
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G 14. Mr Kwong submits the facts of Wong Wing Wong are similar G
save that the maximum voltage of the stun gun is higher namely 20,000
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volts as opposed to 6,250 volts. In my view the reference to 20,000 volts in
I Wong Wing Wong is reference to the average peak to peak pulsating output I
voltage generated from the stun gun and not the number of high voltage
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pulses when the gun is discharged for a continuous period of three seconds.
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15. The average peak to peak pulsating output voltage generated
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from the stunning device being 77,997 volts makes the stunning device
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possessed by you more powerful than the one in Wong Wing Wong. The M
electrical effects are however similar the English digest in Wong Wing
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Wong reporting that a person stunned by the stun gun would be
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immobilized, feel pain and suffer loss of balance. O
P Unlawful purpose P
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16. Mr Kwong submits that there is no evidence you were to use
R the stunning device for unlawful purpose. Although no money was found R
on you on arrest Mr Kwong explains you had bank cards from which you
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could withdraw money, the bank cards having already been returned to you
T by the police. I am told your trip to Hong Kong was sponsored by your T
work colleagues who asked you to buy mobile phones and ointment.
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17. You say that you always carry the stunning device in your
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rucksack because no locker is provided in your quarters. You therefore did
C not intentionally bring the device with you to Hong Kong whilst at the C
same time being ignorant that these devices are illegal in Hong Kong.
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E 18. When asked in court for an explanation why you were also E
carrying a simulated bomb together with the stunning device Mr Kwong
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said that according to his understanding the simulated bomb had been put
G in your rucksack by a work colleague (an explanation which you also G
apparently gave to the police). Having sought your confirmation Mr
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Kwong withdrew this explanation and said that you bought the simulated
I bomb in China already connected. I
J 19. As indicated in court whilst you may have bought the stunning J
device for self protection in the Mainland I do not accept you brought the
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device together with the simulated bomb to Hong Kong because you kept
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the device in your rucksack. As is your right you have elected not to give
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evidence to support this claim. M
N 20. Whilst the expert evidence is that the bomb was harmless I am N
satisfied that being found together with the stunning device there was a real
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risk that the device would be used for an unlawful purpose. In all the
P circumstances I am satisfied a starting point of 2 years and 6 months P
imprisonment is appropriate. Giving you full credit for your plea of guilty
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you are convicted and sentenced to 1 year and 8 months imprisonment.
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S S
T (D. J. DUFTON) T
District Judge
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