HCCC 152/2022
A [2023] HKCFI 1533 A
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C CRIMINAL CASE NO 152 OF 2022 C
-----------------
D D
HKSAR
E E
v
F Cheng Cheuk-hung F
-----------------
G G
Before: Hon Barnes J
H Date: 19 May 2023 at 3.17 pm H
Present: Ms Lee Pui-kei Paggie, SPP of the Department of
Justice, for HKSAR
I Ms Wong Wing-man Vivian, instructed by Cheung & Liu, I
assigned by DLA, for the accused
J
Offence: (1) Burglary (入屋犯法罪) J
(2) Possession of arms and ammunition without a licence
(無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendant, Cheng Cheuk-hung, faced the following two
counts: (1) burglary, contrary to section 11(1)(b) and section
N (4) of the Theft Ordinance, Chapter 210; and (2) possession N
of arms and ammunition without a licence, contrary to section
13(1) and (2) of the Firearms and Ammunition Ordinance,
O O
Chapter 238.
P The defendant pleaded guilty to both charges before a P
magistrate and is committed to the Court of First Instance of
the High Court for sentence.
Q Q
The Admitted Facts.
R R
The burglary occurred at a house in Kam Tin. The tenant,
Madam Wong, rented the 2nd and 3rd floor of the house with
S her boyfriend surnamed Lui. Lui was remanded in custody for S
a criminal case since 15 August 2020. Madam Wong came to
know the defendant through Lui before Lui was remanded.
T T
Around 12.30 am on 21 August 2020, the defendant went to look
U for Lui and borrowed $200 from Madam Wong. Then around 9 am U
CRT22/19.5.2023/LS/csy 1 HCCC 152/2022(1)/Sentence
V V
the same day, Madam Wong left for work after securing all the
A doors and windows. And she had, however, placed a spare key A
to her premises inside the mailbox on the ground-floor
B entrance. B
Then around 6.57 pm, Madam Wong checked the surveillance
C camera to see her dogs at home. She received notification C
from the surveillance system that something was moving and
she saw the defendant ransacking her bedroom. So she
D D
immediately made a report to the police and returned home.
E Madam Wong met the police on the ground floor of her home at E
around 6.32 pm and went inside. The defendant was subdued in
the study on the 3rd floor. A pair of black scissors were
F found in the defendant’s rear pants pocket and $24 cash was F
found in his front pants pocket. A key and a black hood were
also found from the defendant.
G G
And Madam Wong checked and found the following items missing
H from their original locations inside the house: H
A computer laptop valued at $8,000;
I I
A notebook computer valued at $2,000;
J J
A wristwatch valued at $23,000;
K An external charger, $300; K
Two boxes of face masks, $300; and
L L
Various items of small value and a pair of scissors and
spare cash of $24 also missing.
M M
Upon enquiry, the defendant claimed that Lui had given him
N the key for safekeeping and he had used the key to gain N
entrance to the premises as he had no money. The pair of
scissors and the cash found on him were from the premises.
O O
The police searched the premises and located a paper bag
P
inside the bedroom containing all the items Madam Wong found P
missing (except the scissors and the cash of $24). Defendant
admitted he had ransacked the premises and put the items in
Q the paper bag. He hid the paper bag in the bedroom as he was Q
afraid someone was returning.
R The defendant was arrested and under caution he admitted he R
had been unemployed for two years. He had no money, so he
S burgled the premises to steal valuables. S
After the defendant was brought back to the Pat Heung Police
T Station, the defendant disclosed to the police that Lui had T
given him a paper box for safekeeping at the end of June 2020.
He suspected there were arms and ammunitions inside the box.
U U
CRT22/19.5.2023/LS/csy 2 HCCC 152/2022(1)/Sentence
V V
The police went to the defendant’s home in Pat Heung and
A conducted a search. A
B Inside a paper box behind a wooden plank near the window, the B
police found the following:
C (a) A cocked 2.5 feet long rifle with its safety switch C
switched on, chambered with one round of .22LR calibre
ammunition;
D D
(b) A magazine storing one round of .22LR calibre ammunition;
E E
(c) 29 rounds of .22LR calibre ammunition.
F On the ground of the room, the police found: F
(d) One round of .22LR calibre ammunition; and
G G
(e) A fired cartridge case in .22LR calibre.
H H
The defendant was arrested and under caution the defendant
admitted that the above items were given to him by Lui.
I I
Firearm experts confirmed that the rifle was a semi-auto rifle
designed to discharge .22LR calibre ammunition. The total of
J J
32.22LR calibre ammunitions seized at the scene were suitable
for discharge by the rifle. The magazine was designed to
K store .22LR calibre ammunition. Test firing of the rifle was K
conducted successfully using two rounds of .22LR calibre
ammunitions.
L L
In subsequent video-recorded interviews, the defendant made
admission in relation to the burglary. As for the arms and
M M
ammunition, the defendant said he obtained them from a ball
court about a month ago. At first he thought it was a toy
N gun, but later he found the ammunition so he knew it might be N
a genuine gun. He hid the arms and ammunition out of fear
inside the storage room. He had taken the rifle out but had
O not fired it. He believed the cartridge case and one round O
of ammunition (that is the items found on the floor) dropped
P
out from the paper box. He also admitted he wrongly accused P
Lui by saying Lui had given him the items as he was scared
when he was arrested.
Q Q
The defendant led the police to a ball court in Kam Tin and
pointed out a bush there, saying he found the arms and
R ammunition there. The defendant does not hold any licence R
for arm.
S S
The defendant admitted having entered as a trespasser of the
premises, he stole the items which were placed inside a paper
T bag and he had in his possession the seized item of arm and T
ammunition without a licence. So those were the Admitted
Facts.
U U
CRT22/19.5.2023/LS/csy 3 HCCC 152/2022(1)/Sentence
V V
Background and mitigation.
A A
The defendant was born in November 1964 so he is 58 years of
B age. He is not a man with a clear record. He has appeared B
in court on 14 occasions and has 18 convictions. Most of the
convictions are for possession of dangerous drug. He had one
C conviction of robbery in 1982 and three thefts in 1982, 2005 C
and 2006.
D D
Defence counsel, Ms Vivian Wong, gave this Court more details
about the defendant’s background. The defendant was married
E but his wife had passed away. He has a grown-up daughter who E
is married and lives apart. Before his remand, the defendant
was living with his nephew in a village house and he occupied
F the whole floor. The defendant worked as a construction site F
worker, a warehouse worker and in a dry cleaning factory
before. About one year prior to his arrest, the dry cleaning
G G
factory closed down and he lost his job. He was not able to
secure another job since then.
H H
The defendant suffers from nasopharyngeal carcinoma (at stage
3 in July 2022). Although chemotherapy was planned, the
I defendant was unable to have the chemotherapy by way of I
injection so an invasion surgery needs to be done to insert
a permanent tube near his heart to avoid blood clot. At the
J J
time when Ms Wong filed her written submission to this Court,
the defendant had not yet had the operation. However, during
K the hearing Ms Wong informed this Court that the defendant K
had started the chemotherapy two days ago on 17 May.
L While an updated medical report had not been received, L
according to the defendant, he was diagnosed with stage 4 of
cancer by the doctor as the tumours had spread to his lymph
M M
nodes. The defendant suffers from nose bleed every morning
and he takes medication to stop internal bleeding.
N N
In mitigation, Ms Wong submitted the defendant committed the
offence of burglary alone in the afternoon in an
O unsophisticated way. There was no loss to the victim and no O
weapon was used. Accepting the starting point for burglary
P
in domestic premises is 3 years, Ms Wong stressed that the P
defendant pleaded guilty at the earliest practicable
opportunity and is entitled to a one-third discount.
Q Q
In view of the terminal illness suffered by the defendant,
his chance of reoffending is extremely low or nil, Ms Wong
R submitted. Ms Wong also urged this Court not to enhance the R
sentence as his last conviction of a similar nature was
S 17 years ago. S
As for the 2nd count, Ms Wong stressed that the defendant
T picked up the arm and ammunition in a ball court. He thought T
it was a toy gun and was shocked when he realised it was a
real gun after thorough examination. He was scared and he
U U
dared not take the items to the police as he was afraid of
CRT22/19.5.2023/LS/csy 4 HCCC 152/2022(1)/Sentence
V V
taking them out onto the street. He left them inside the
A paper box and hid the box behind a wooden board in the A
storeroom. As the defendant occupied the whole of the 2nd
B floor of the village house, no one else would gain easy access B
to these items.
C Ms Wong also stressed that after the defendant was arrested C
for burglary, he took the initiative and owned up to the
police about the items and led the police to his home to
D D
locate them.
E Ms Wong referred this Court to the authorities HKSAR v Chan E
Chi Fun, R v Milhench and R v Szeto Chi Keung. She submitted
the arms and ammunition were kept safe by the defendant in
F his storeroom at home which was not easily accessible; the F
arm and ammunition had never been used and the defendant had
no intention of using them for any purpose. The items were
G G
unconnected with the burglary count. And there was one
firearm with safety switch switched on, a magazine stored
H with one round of ammunition and there were 29 rounds of H
ammunition in this case. The number was smaller than those
cited in the three cases.
I I
Ms Wong also submitted there was no international element
involved and that the defendant committed the offence out of
J J
stupidity and naivety.
K Lastly, accepting that a considerable term of imprisonment K
would be expected for the two counts, Ms Wong urged this Court
to be as lenient as possible in totality given the medical
L condition of the defendant. L
My consideration of the sentence.
M M
I will deal with the burglary offence first. As submitted by
N Ms Wong, the guideline of 3 years for a burglary of domestic N
premises is well established (as the case of HKSAR v Lau
Pang). I accept in the circumstances of this case a starting
O point of 3 years is appropriate. There were no aggravating O
factors during the commission of the offence. I will not
P
enhance the starting point as the last similar offence was 17 P
years ago. The defendant pleaded guilty at the earliest
available opportunity and he is entitled to a full one-third
Q discount. So the sentence for the 1st count is 2 years. Q
As for the 2nd count, in the case of HKSAR v Tsiang On Yan
R [2019] 5 HKLRD 100, the Court of Appeal said the unlicensed R
possession of firearm posed a danger to the public and
S societal protection was a paramount consideration. A S
deterrent sentence was generally required. And as the maximum
penalty for the simple possession of firearm under section 13
T of the Ordinance was 14 years, a starting point of 12 years’ T
imprisonment after trial was appropriate unless there were
special features warranting a reduction.
U U
CRT22/19.5.2023/LS/csy 5 HCCC 152/2022(1)/Sentence
V V
And in the case of Chan Chi Fun which was referred to by
A defence counsel, the Court of Appeal has stated the following: A
B “As a rule, this type of offence would attract a severe B
and deterrent sentence for the reason that firearms and
ammunitions pose a potential great danger to the society.
C In determining the appropriate sentence, the mitigating C
or aggravating factors include: (a) the type of firearm
and ammunition involved; (b) whether the defendant
D D
physically carried the firearm and ammunition; (c)
whether the firearm was loaded; (d) whether the firearm
E had been used; (e) whether the defendant intended to use E
the firearm for illegal purposes; (f) whether the firearm
and ammunition were properly stored or whether they were
F easily accessible by offenders; and (g) whether the F
defendant had a clear record. The level of sentence
depended on the court’s view of the potential risk posed
G G
by the firearm and ammunition in question, taking into
account the circumstances of the case and the defendant’s
H background.” H
These relevant factors were adopted in the case of Secretary
I for Justice v Yan Shen, and also the Court of Appeal in that I
case stated that societal protection is the paramount
consideration in order to maintain the safety of Hong Kong.
J J
An immediate sentence - often for a substantial term - should
be imposed except in truly exceptional circumstances.
K K
Then let us look at these factors in this case:
L (a) The firearm involved here was a semi-automatic rifle L
which was cocked with its safety switch switched on and
one round of ammunition in its chamber. There was a
M M
magazine with one round of ammunition and another
29 rounds of ammunition, the above all found inside a
N paper box. And on the ground there was one round of N
ammunition and a fired cartridge case.
O (b) The defendant was not physically carrying the arm or O
ammunition.
P P
(c) The firearm was loaded with safety switch on.
Q (d) There is no evidence the defendant intended to use the Q
firearm for illegal purpose.
R (e) The way the paper box containing the firearm and R
ammunition was placed behind a wooden board and the way
S one ammunition and a fired cartridge was found lying S
around on the ground do not constitute “proper storage”.
Further, while the defendant was the only person residing
T at the particular floor on which these items were found, T
should a burglar enter the premises, he or she could
easily gain access to them, so therefore there is a risk
U U
CRT22/19.5.2023/LS/csy 6 HCCC 152/2022(1)/Sentence
V V
of these items falling into wrong hands and pose danger
A to our society. A
B (f) The defendant does not have a clear record although he B
does not have a similar record involving firearm.
C So having considered all the circumstances of this case with C
the factors that I already mentioned, and in particular when
it was the defendant who brought to the police’s notice about
D D
the presence of the arm and ammunition (although he falsely
accused his friend Lui at first) and together -- I am of the
E view that a starting point of 7 years is appropriate. Now, E
to make it quite clear, I think that the starting point of 8
years is appropriate in the circumstances of this case but I
F give a 1-year discount because the defendant owned up about F
the offence voluntarily to the police. That is how I bring
it down to 7 years’ starting point.
G G
And the defendant pleaded guilty, again, at the earliest
H available opportunity and so he is entitled to a full one- H
third discount. So the resultant sentence is one of
4 years and 8 months for the 2nd charge.
I I
Now I have to consider totality.
J J
The burglary offence and the offence of possession of arms
and ammunition are two distinct and separate offences, they
K are not related, and so normally speaking, the sentence should K
be served totally separately. However, having considered
firstly the totality principle and secondly the fact that the
L defendant is suffering from cancer and undergoing invasive L
chemotherapy, I am prepared to temper justice with mercy and
order the two sentences to run concurrently, making a total
M M
of 4 years and 8 months.
N So for this purpose, the sentence will be as follows: the 1st N
count, 2 years’ imprisonment; 2nd count, 4 years and 8 months’
imprisonment; all sentences to run concurrently,
O O
making a total of 4 years and 8 months.
P P
Q Q
R R
S S
T T
U U
CRT22/19.5.2023/LS/csy 7 HCCC 152/2022(1)/Sentence
V V
HCCC 152/2022
A [2023] HKCFI 1533 A
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C CRIMINAL CASE NO 152 OF 2022 C
-----------------
D D
HKSAR
E E
v
F Cheng Cheuk-hung F
-----------------
G G
Before: Hon Barnes J
H Date: 19 May 2023 at 3.17 pm H
Present: Ms Lee Pui-kei Paggie, SPP of the Department of
Justice, for HKSAR
I Ms Wong Wing-man Vivian, instructed by Cheung & Liu, I
assigned by DLA, for the accused
J
Offence: (1) Burglary (入屋犯法罪) J
(2) Possession of arms and ammunition without a licence
(無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendant, Cheng Cheuk-hung, faced the following two
counts: (1) burglary, contrary to section 11(1)(b) and section
N (4) of the Theft Ordinance, Chapter 210; and (2) possession N
of arms and ammunition without a licence, contrary to section
13(1) and (2) of the Firearms and Ammunition Ordinance,
O O
Chapter 238.
P The defendant pleaded guilty to both charges before a P
magistrate and is committed to the Court of First Instance of
the High Court for sentence.
Q Q
The Admitted Facts.
R R
The burglary occurred at a house in Kam Tin. The tenant,
Madam Wong, rented the 2nd and 3rd floor of the house with
S her boyfriend surnamed Lui. Lui was remanded in custody for S
a criminal case since 15 August 2020. Madam Wong came to
know the defendant through Lui before Lui was remanded.
T T
Around 12.30 am on 21 August 2020, the defendant went to look
U for Lui and borrowed $200 from Madam Wong. Then around 9 am U
CRT22/19.5.2023/LS/csy 1 HCCC 152/2022(1)/Sentence
V V
the same day, Madam Wong left for work after securing all the
A doors and windows. And she had, however, placed a spare key A
to her premises inside the mailbox on the ground-floor
B entrance. B
Then around 6.57 pm, Madam Wong checked the surveillance
C camera to see her dogs at home. She received notification C
from the surveillance system that something was moving and
she saw the defendant ransacking her bedroom. So she
D D
immediately made a report to the police and returned home.
E Madam Wong met the police on the ground floor of her home at E
around 6.32 pm and went inside. The defendant was subdued in
the study on the 3rd floor. A pair of black scissors were
F found in the defendant’s rear pants pocket and $24 cash was F
found in his front pants pocket. A key and a black hood were
also found from the defendant.
G G
And Madam Wong checked and found the following items missing
H from their original locations inside the house: H
A computer laptop valued at $8,000;
I I
A notebook computer valued at $2,000;
J J
A wristwatch valued at $23,000;
K An external charger, $300; K
Two boxes of face masks, $300; and
L L
Various items of small value and a pair of scissors and
spare cash of $24 also missing.
M M
Upon enquiry, the defendant claimed that Lui had given him
N the key for safekeeping and he had used the key to gain N
entrance to the premises as he had no money. The pair of
scissors and the cash found on him were from the premises.
O O
The police searched the premises and located a paper bag
P
inside the bedroom containing all the items Madam Wong found P
missing (except the scissors and the cash of $24). Defendant
admitted he had ransacked the premises and put the items in
Q the paper bag. He hid the paper bag in the bedroom as he was Q
afraid someone was returning.
R The defendant was arrested and under caution he admitted he R
had been unemployed for two years. He had no money, so he
S burgled the premises to steal valuables. S
After the defendant was brought back to the Pat Heung Police
T Station, the defendant disclosed to the police that Lui had T
given him a paper box for safekeeping at the end of June 2020.
He suspected there were arms and ammunitions inside the box.
U U
CRT22/19.5.2023/LS/csy 2 HCCC 152/2022(1)/Sentence
V V
The police went to the defendant’s home in Pat Heung and
A conducted a search. A
B Inside a paper box behind a wooden plank near the window, the B
police found the following:
C (a) A cocked 2.5 feet long rifle with its safety switch C
switched on, chambered with one round of .22LR calibre
ammunition;
D D
(b) A magazine storing one round of .22LR calibre ammunition;
E E
(c) 29 rounds of .22LR calibre ammunition.
F On the ground of the room, the police found: F
(d) One round of .22LR calibre ammunition; and
G G
(e) A fired cartridge case in .22LR calibre.
H H
The defendant was arrested and under caution the defendant
admitted that the above items were given to him by Lui.
I I
Firearm experts confirmed that the rifle was a semi-auto rifle
designed to discharge .22LR calibre ammunition. The total of
J J
32.22LR calibre ammunitions seized at the scene were suitable
for discharge by the rifle. The magazine was designed to
K store .22LR calibre ammunition. Test firing of the rifle was K
conducted successfully using two rounds of .22LR calibre
ammunitions.
L L
In subsequent video-recorded interviews, the defendant made
admission in relation to the burglary. As for the arms and
M M
ammunition, the defendant said he obtained them from a ball
court about a month ago. At first he thought it was a toy
N gun, but later he found the ammunition so he knew it might be N
a genuine gun. He hid the arms and ammunition out of fear
inside the storage room. He had taken the rifle out but had
O not fired it. He believed the cartridge case and one round O
of ammunition (that is the items found on the floor) dropped
P
out from the paper box. He also admitted he wrongly accused P
Lui by saying Lui had given him the items as he was scared
when he was arrested.
Q Q
The defendant led the police to a ball court in Kam Tin and
pointed out a bush there, saying he found the arms and
R ammunition there. The defendant does not hold any licence R
for arm.
S S
The defendant admitted having entered as a trespasser of the
premises, he stole the items which were placed inside a paper
T bag and he had in his possession the seized item of arm and T
ammunition without a licence. So those were the Admitted
Facts.
U U
CRT22/19.5.2023/LS/csy 3 HCCC 152/2022(1)/Sentence
V V
Background and mitigation.
A A
The defendant was born in November 1964 so he is 58 years of
B age. He is not a man with a clear record. He has appeared B
in court on 14 occasions and has 18 convictions. Most of the
convictions are for possession of dangerous drug. He had one
C conviction of robbery in 1982 and three thefts in 1982, 2005 C
and 2006.
D D
Defence counsel, Ms Vivian Wong, gave this Court more details
about the defendant’s background. The defendant was married
E but his wife had passed away. He has a grown-up daughter who E
is married and lives apart. Before his remand, the defendant
was living with his nephew in a village house and he occupied
F the whole floor. The defendant worked as a construction site F
worker, a warehouse worker and in a dry cleaning factory
before. About one year prior to his arrest, the dry cleaning
G G
factory closed down and he lost his job. He was not able to
secure another job since then.
H H
The defendant suffers from nasopharyngeal carcinoma (at stage
3 in July 2022). Although chemotherapy was planned, the
I defendant was unable to have the chemotherapy by way of I
injection so an invasion surgery needs to be done to insert
a permanent tube near his heart to avoid blood clot. At the
J J
time when Ms Wong filed her written submission to this Court,
the defendant had not yet had the operation. However, during
K the hearing Ms Wong informed this Court that the defendant K
had started the chemotherapy two days ago on 17 May.
L While an updated medical report had not been received, L
according to the defendant, he was diagnosed with stage 4 of
cancer by the doctor as the tumours had spread to his lymph
M M
nodes. The defendant suffers from nose bleed every morning
and he takes medication to stop internal bleeding.
N N
In mitigation, Ms Wong submitted the defendant committed the
offence of burglary alone in the afternoon in an
O unsophisticated way. There was no loss to the victim and no O
weapon was used. Accepting the starting point for burglary
P
in domestic premises is 3 years, Ms Wong stressed that the P
defendant pleaded guilty at the earliest practicable
opportunity and is entitled to a one-third discount.
Q Q
In view of the terminal illness suffered by the defendant,
his chance of reoffending is extremely low or nil, Ms Wong
R submitted. Ms Wong also urged this Court not to enhance the R
sentence as his last conviction of a similar nature was
S 17 years ago. S
As for the 2nd count, Ms Wong stressed that the defendant
T picked up the arm and ammunition in a ball court. He thought T
it was a toy gun and was shocked when he realised it was a
real gun after thorough examination. He was scared and he
U U
dared not take the items to the police as he was afraid of
CRT22/19.5.2023/LS/csy 4 HCCC 152/2022(1)/Sentence
V V
taking them out onto the street. He left them inside the
A paper box and hid the box behind a wooden board in the A
storeroom. As the defendant occupied the whole of the 2nd
B floor of the village house, no one else would gain easy access B
to these items.
C Ms Wong also stressed that after the defendant was arrested C
for burglary, he took the initiative and owned up to the
police about the items and led the police to his home to
D D
locate them.
E Ms Wong referred this Court to the authorities HKSAR v Chan E
Chi Fun, R v Milhench and R v Szeto Chi Keung. She submitted
the arms and ammunition were kept safe by the defendant in
F his storeroom at home which was not easily accessible; the F
arm and ammunition had never been used and the defendant had
no intention of using them for any purpose. The items were
G G
unconnected with the burglary count. And there was one
firearm with safety switch switched on, a magazine stored
H with one round of ammunition and there were 29 rounds of H
ammunition in this case. The number was smaller than those
cited in the three cases.
I I
Ms Wong also submitted there was no international element
involved and that the defendant committed the offence out of
J J
stupidity and naivety.
K Lastly, accepting that a considerable term of imprisonment K
would be expected for the two counts, Ms Wong urged this Court
to be as lenient as possible in totality given the medical
L condition of the defendant. L
My consideration of the sentence.
M M
I will deal with the burglary offence first. As submitted by
N Ms Wong, the guideline of 3 years for a burglary of domestic N
premises is well established (as the case of HKSAR v Lau
Pang). I accept in the circumstances of this case a starting
O point of 3 years is appropriate. There were no aggravating O
factors during the commission of the offence. I will not
P
enhance the starting point as the last similar offence was 17 P
years ago. The defendant pleaded guilty at the earliest
available opportunity and he is entitled to a full one-third
Q discount. So the sentence for the 1st count is 2 years. Q
As for the 2nd count, in the case of HKSAR v Tsiang On Yan
R [2019] 5 HKLRD 100, the Court of Appeal said the unlicensed R
possession of firearm posed a danger to the public and
S societal protection was a paramount consideration. A S
deterrent sentence was generally required. And as the maximum
penalty for the simple possession of firearm under section 13
T of the Ordinance was 14 years, a starting point of 12 years’ T
imprisonment after trial was appropriate unless there were
special features warranting a reduction.
U U
CRT22/19.5.2023/LS/csy 5 HCCC 152/2022(1)/Sentence
V V
And in the case of Chan Chi Fun which was referred to by
A defence counsel, the Court of Appeal has stated the following: A
B “As a rule, this type of offence would attract a severe B
and deterrent sentence for the reason that firearms and
ammunitions pose a potential great danger to the society.
C In determining the appropriate sentence, the mitigating C
or aggravating factors include: (a) the type of firearm
and ammunition involved; (b) whether the defendant
D D
physically carried the firearm and ammunition; (c)
whether the firearm was loaded; (d) whether the firearm
E had been used; (e) whether the defendant intended to use E
the firearm for illegal purposes; (f) whether the firearm
and ammunition were properly stored or whether they were
F easily accessible by offenders; and (g) whether the F
defendant had a clear record. The level of sentence
depended on the court’s view of the potential risk posed
G G
by the firearm and ammunition in question, taking into
account the circumstances of the case and the defendant’s
H background.” H
These relevant factors were adopted in the case of Secretary
I for Justice v Yan Shen, and also the Court of Appeal in that I
case stated that societal protection is the paramount
consideration in order to maintain the safety of Hong Kong.
J J
An immediate sentence - often for a substantial term - should
be imposed except in truly exceptional circumstances.
K K
Then let us look at these factors in this case:
L (a) The firearm involved here was a semi-automatic rifle L
which was cocked with its safety switch switched on and
one round of ammunition in its chamber. There was a
M M
magazine with one round of ammunition and another
29 rounds of ammunition, the above all found inside a
N paper box. And on the ground there was one round of N
ammunition and a fired cartridge case.
O (b) The defendant was not physically carrying the arm or O
ammunition.
P P
(c) The firearm was loaded with safety switch on.
Q (d) There is no evidence the defendant intended to use the Q
firearm for illegal purpose.
R (e) The way the paper box containing the firearm and R
ammunition was placed behind a wooden board and the way
S one ammunition and a fired cartridge was found lying S
around on the ground do not constitute “proper storage”.
Further, while the defendant was the only person residing
T at the particular floor on which these items were found, T
should a burglar enter the premises, he or she could
easily gain access to them, so therefore there is a risk
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of these items falling into wrong hands and pose danger
A to our society. A
B (f) The defendant does not have a clear record although he B
does not have a similar record involving firearm.
C So having considered all the circumstances of this case with C
the factors that I already mentioned, and in particular when
it was the defendant who brought to the police’s notice about
D D
the presence of the arm and ammunition (although he falsely
accused his friend Lui at first) and together -- I am of the
E view that a starting point of 7 years is appropriate. Now, E
to make it quite clear, I think that the starting point of 8
years is appropriate in the circumstances of this case but I
F give a 1-year discount because the defendant owned up about F
the offence voluntarily to the police. That is how I bring
it down to 7 years’ starting point.
G G
And the defendant pleaded guilty, again, at the earliest
H available opportunity and so he is entitled to a full one- H
third discount. So the resultant sentence is one of
4 years and 8 months for the 2nd charge.
I I
Now I have to consider totality.
J J
The burglary offence and the offence of possession of arms
and ammunition are two distinct and separate offences, they
K are not related, and so normally speaking, the sentence should K
be served totally separately. However, having considered
firstly the totality principle and secondly the fact that the
L defendant is suffering from cancer and undergoing invasive L
chemotherapy, I am prepared to temper justice with mercy and
order the two sentences to run concurrently, making a total
M M
of 4 years and 8 months.
N So for this purpose, the sentence will be as follows: the 1st N
count, 2 years’ imprisonment; 2nd count, 4 years and 8 months’
imprisonment; all sentences to run concurrently,
O O
making a total of 4 years and 8 months.
P P
Q Q
R R
S S
T T
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