HCCC135/2009 HKSAR v. CHEUNG SIK WAI, TERRY - LawHero
HCCC135/2009
高等法院（刑事）McMahon J15/10/2009
HCCC135/2009
A HCCC135/2009 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 135 OF 2009
C C
-----------------
D D
HKSAR
E v. E
Cheung Sik-wai, Terry
F F
-----------------
G G
Before: Hon McMahon J
Date: 16 October 2009 at 2.50 pm
H Present: Ms Kathie Cheung, SPP, of the Department of Justice, H
for HKSAR
I
Mr Jackson Poon, instructed by Anthony Ho & Co., I
for the Accused
Offence: (1) Possession of arms without a licence (無牌管有槍械)
J (2) Possession of an offensive weapon in a public place J
(在公眾地方管有攻擊性武器)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: The defendant was convicted, after trial, of possessing a M
.38 calibre revolver contrary to section 13(1) of the
N Firearms and Ammunition Ordinance. The weapon was not N
loaded and no ammunition was ever found in the defendant’s
possession.
O O
He had also, prior to trial, pleaded guilty to an offence of
possession of an offensive weapon, namely, an iron bar,
P contrary to section 33(1) of the Public Order Ordinance. P
Q So far as the firearms offence is concerned, the verdict of Q
the jury must have been based on the defendant’s admissions
to the effect that he had purchased the revolver in China
R and had had it delivered to him in Hong Kong, where he had R
hidden it in the bodywork of his BMW motor vehicle.
S S
On the basis of information provided to them, police
intercepted the defendant on 4 February of this year and
T searched his vehicle. The weapon was found hidden behind T
the internal mudguard of the car. By the Admitted Facts
agreed at trial, the revolver was in working order but,
U U
CRT35/16.10.2009/CC 1 HCCC135/2009/Sentence
V V
A prior to its testing, displayed no evidence of having been A
fired.
B Possession of a revolver is a serious offence. On the basis B
of the facts I have set out, I would have taken a starting
point of sentence of 9 years’ imprisonment, even though the
C C
revolver had not previously been fired, was not loaded, and
the defendant possessed no ammunition. However, I note also
D that, in 2004, the defendant was sentenced in the District D
Court to consecutive sentences of 2 years’ imprisonment and
2 months’ imprisonment for an offence of possession of arms
E and ammunition and an offence of possession of a simulated E
bomb, respectively.
F F
I accept, given the apparent leniency of those sentences,
the statements from the Bar table that the arms involved in
G the first offence was a stun gun, and the simulated bomb was G
non-operable and intended only to frighten. Nevertheless,
these offences being quite recent and also involving
H weaponry and simulated weaponry, I take as aggravating H
factors.
I I
Also, in my view, the importation of the present firearm
into Hong Kong by the defendant is an aggravating factor.
J Logically, and not simply by analogy to drug cases, the J
bringing of a firearm into Hong Kong adds to the pool of
weaponry available to criminals and heightens the risk to
K our citizens. K
L I accordingly enhance the starting point to one of 11 years’ L
imprisonment on the basis of both those aggravating factors.
M There has been no mitigation of substance presented to me in M
respect of this offence and the defendant is sentenced to 11
years’ imprisonment in respect of the offence of possession
N of a firearm. N
O So far as the offence of the possession of the iron bar is O
concerned, that weapon was found in the boot of the car
during the same search that resulted in the finding of the
P revolver. The iron bar is of considerable size, being P
1 metre long, and is designed for use. One end was wrapped
so as to provide a proper handgrip.
Q Q
I take a starting point of sentence of 6 months’
R imprisonment. That is reduced to a sentence of 4 months’ R
imprisonment given the defendant’s plea of guilty to this
offence, which is the only mitigation available to him.
S S
Having considered the totality of sentence, I order that
2 months of the sentence imposed in respect of his
T T
possession of the iron bar be served concurrently with the
sentence imposed in respect of the firearm offence. That is
U a totality of 11 years 2 months’ imprisonment. U
CRT35/16.10.2009/CC 2 HCCC135/2009/Sentence
V V
A A
I might add that although there was evidence of the
defendant having a chronic condition of bipolar affective
B disorder, I do not regard what I have heard in evidence in B
regard to his illness in that regard to be of such severity
that it warrants any consideration as mitigation. The
C C
symptoms of that illness, as described by the psychiatrist
called on behalf of the defendant during the course of the
D trial, in no way impinged upon the understanding that he D
must have had as to his commission of these offences.
E I might conclude by saying this. In my view, the defendant, E
given his present and prior convictions for possession of
weapons or simulated weapons, including the finding of the
F F
iron bar in his motor vehicle, is plainly a danger to the
community in Hong Kong.
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT35/16.10.2009/CC 3 HCCC135/2009/Sentence
V V
A HCCC135/2009 A
IN THE HIGH COURT OF THE
B HONG KONG SPECIAL ADMINISTRATIVE REGION B
COURT OF FIRST INSTANCE
CRIMINAL CASE NO. 135 OF 2009
C C
-----------------
D D
HKSAR
E v. E
Cheung Sik-wai, Terry
F F
-----------------
G G
Before: Hon McMahon J
Date: 16 October 2009 at 2.50 pm
H Present: Ms Kathie Cheung, SPP, of the Department of Justice, H
for HKSAR
I
Mr Jackson Poon, instructed by Anthony Ho & Co., I
for the Accused
Offence: (1) Possession of arms without a licence (無牌管有槍械)
J (2) Possession of an offensive weapon in a public place J
(在公眾地方管有攻擊性武器)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: The defendant was convicted, after trial, of possessing a M
.38 calibre revolver contrary to section 13(1) of the
N Firearms and Ammunition Ordinance. The weapon was not N
loaded and no ammunition was ever found in the defendant’s
possession.
O O
He had also, prior to trial, pleaded guilty to an offence of
possession of an offensive weapon, namely, an iron bar,
P contrary to section 33(1) of the Public Order Ordinance. P
Q So far as the firearms offence is concerned, the verdict of Q
the jury must have been based on the defendant’s admissions
to the effect that he had purchased the revolver in China
R and had had it delivered to him in Hong Kong, where he had R
hidden it in the bodywork of his BMW motor vehicle.
S S
On the basis of information provided to them, police
intercepted the defendant on 4 February of this year and
T searched his vehicle. The weapon was found hidden behind T
the internal mudguard of the car. By the Admitted Facts
agreed at trial, the revolver was in working order but,
U U
CRT35/16.10.2009/CC 1 HCCC135/2009/Sentence
V V
A prior to its testing, displayed no evidence of having been A
fired.
B Possession of a revolver is a serious offence. On the basis B
of the facts I have set out, I would have taken a starting
point of sentence of 9 years’ imprisonment, even though the
C C
revolver had not previously been fired, was not loaded, and
the defendant possessed no ammunition. However, I note also
D that, in 2004, the defendant was sentenced in the District D
Court to consecutive sentences of 2 years’ imprisonment and
2 months’ imprisonment for an offence of possession of arms
E and ammunition and an offence of possession of a simulated E
bomb, respectively.
F F
I accept, given the apparent leniency of those sentences,
the statements from the Bar table that the arms involved in
G the first offence was a stun gun, and the simulated bomb was G
non-operable and intended only to frighten. Nevertheless,
these offences being quite recent and also involving
H weaponry and simulated weaponry, I take as aggravating H
factors.
I I
Also, in my view, the importation of the present firearm
into Hong Kong by the defendant is an aggravating factor.
J Logically, and not simply by analogy to drug cases, the J
bringing of a firearm into Hong Kong adds to the pool of
weaponry available to criminals and heightens the risk to
K our citizens. K
L I accordingly enhance the starting point to one of 11 years’ L
imprisonment on the basis of both those aggravating factors.
M There has been no mitigation of substance presented to me in M
respect of this offence and the defendant is sentenced to 11
years’ imprisonment in respect of the offence of possession
N of a firearm. N
O So far as the offence of the possession of the iron bar is O
concerned, that weapon was found in the boot of the car
during the same search that resulted in the finding of the
P revolver. The iron bar is of considerable size, being P
1 metre long, and is designed for use. One end was wrapped
so as to provide a proper handgrip.
Q Q
I take a starting point of sentence of 6 months’
R imprisonment. That is reduced to a sentence of 4 months’ R
imprisonment given the defendant’s plea of guilty to this
offence, which is the only mitigation available to him.
S S
Having considered the totality of sentence, I order that
2 months of the sentence imposed in respect of his
T T
possession of the iron bar be served concurrently with the
sentence imposed in respect of the firearm offence. That is
U a totality of 11 years 2 months’ imprisonment. U
CRT35/16.10.2009/CC 2 HCCC135/2009/Sentence
V V
A A
I might add that although there was evidence of the
defendant having a chronic condition of bipolar affective
B disorder, I do not regard what I have heard in evidence in B
regard to his illness in that regard to be of such severity
that it warrants any consideration as mitigation. The
C C
symptoms of that illness, as described by the psychiatrist
called on behalf of the defendant during the course of the
D trial, in no way impinged upon the understanding that he D
must have had as to his commission of these offences.
E I might conclude by saying this. In my view, the defendant, E
given his present and prior convictions for possession of
weapons or simulated weapons, including the finding of the
F F
iron bar in his motor vehicle, is plainly a danger to the
community in Hong Kong.
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT35/16.10.2009/CC 3 HCCC135/2009/Sentence
V V