A A
DCCC 201/2019
B [2020] HKDC 712 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 201 OF 2019 D
____________
E HKSAR E
v
F F
YAU CHI KIT
____________
G G
Before: HH Judge Dufton
H H
Date: 21 August 2020
Present: Mr Lee Pak Chau, counsel on Fiat, for HKSAR
I Mr Michael Cheung instructed by Edwin So & Co, I
assigned by the Director of Legal Aid for the defendant
J Offence: J
Dealing in arms without a licence (無牌經營槍械)
K K
REASONS FOR SENTENCE
L L
1. The defendant pleads guilty to one charge of dealing in arms
M without a licence, contrary to section 14 of the Firearms and Ammunition M
Ordinance1. The maximum sentence on conviction on indictment is a fine
N N
at level 6 ($100,000) and imprisonment for 10 years.
O O
2. The arms in question are 600 crossbows.
P P
3. Full particulars of the offence are set out in the facts admitted
Q Q
2
by the defendant today . In summary at around 11:40 a.m. on 11 August
R R
2017 the defendant was driving a cross-boundary truck TS 3940 to Hong
S S
T T
1
Cap 238.
2
Mr Lee adopted the prosecution opening dated 20 January 2020 as the summary of facts.
U U
V V
-2-
A A
Kong when the truck was intercepted for customs clearance at the Lok Ma
B B
Chau Control Point.
C C
4. Upon inspection CO 7118 found inside the truck three hundred
D D
boxes containing six hundred crossbows together with an owner’s manual
E for Barnett crossbows. Mr Lee has clarified in court there was a manual for E
each crossbow.
F F
5. The defendant declared to CO 7118 that the boxes contained
G G
plastic crossbows. The manifest declared three hundred boxes of plastic
H crossbows3. H
I I
6. Under caution the defendant said that neither he nor his
J company had any proof that the draw weight of the crossbows fell below 6 J
kilograms or had any import and export licence for the crossbows 4.
K K
7. In a video recorded interview, the defendant, inter alia, said
L L
that he worked for a logistic company as a cross-boundary truck driver; on
M M
11 August 2017 he received instructions from his supervisor to take over a
N
truck from a Mainland driver which he was to drive to the warehouse of N
UPS in Chek Lap Kok; he would receive $600 for the job; he took over the
O O
truck at Huanggang Port on the Mainland; the truck was already loaded
P with the boxes; he did not open the boxes for inspection; the manifest given P
to him declared three hundred boxes of plastic crossbows and he did not
Q Q
know a licence was required to import the crossbows into Hong Kong.
R R
3
The summary of facts refers to the manifests showing the crossbows were to be exported to the USA.
S S
The manifest does not show this. This information appears to have been obtained from the Air
Waybill, a copy of which the defendant gave to the Customs when he was interviewed and which
T has been submitted to the court. This is further discussed at §28. T
4
Only a crossbow with a draw weight of more than 6 kilograms is within the definition of arms. See
Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D.
U U
V V
-3-
A A
8. Subsequent forensic examination on two of the crossbows
B B
found that the draw weight exceeded 6 kilograms 5. Photographs of the
C crossbows have been submitted to court. I have inspected one of the C
crossbows in court. Mr Lee confirms that all six hundred crossbows are of
D D
the same model.
E E
Mitigation
F F
9. In passing sentence, I have carefully considered the oral and
G G
written submissions of Mr Cheung, including that the defendant having
H separated from his wife in June 2019 is responsible for looking after the H
two children of the marriage, a son aged 15 and a daughter aged 9 who live
I I
6
with him in Shenzhen .
J J
10. The defendant has been a cross-boundary truck driver for
K K
twenty odd years. The defendant was working for YY Logistics when he
L was asked to transport the crossbows. Soon after the defendant lost his job L
with YY Logistics. The defendant has continued to work as cross-
M M
boundary truck driver but owing to the social unrest of 2019 and the onset
N of the covid-19 pandemic this year his income has substantially reduced. N
Recently the defendant was able to secure employment with another
O O
logistics company and is presently earning on average about $10,000 per
P month whereby he can hardly make ends meet7. P
Q Q
11. I have read the defendant’s mitigation letter in which he
R explains the circumstances he came to commit the offences, expresses his R
S S
5
Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D declared that crossbows
with a draw weight of more than 6 kilograms to be within the definition of arms.
T T
6
See §3 of the written grounds of mitigation.
7
See §4 of the written grounds of mitigation and the defendant’s mitigation letter.
U U
V V
-4-
A A
remorse and asks for a lenient sentence so he may continue to take care of
B B
his children. I have also read the letters written by the children 8.
C C
12. I take into account that the defendant, aged 42, has no similar
D D
previous convictions and that his only convictions were in 2005 when he
E was sentenced to 12 months’ imprisonment for offences of dealing with E
goods to which the Dutiable Commodities Ordinance applied and
F F
possession for the purpose of manufacture goods to which forged trade
G marks were applied. G
H 13. Mr Cheung submits that the defendant committed the offence H
out of ignorance of the law when executing his company’s orders and
I I
9
therefore the offence can be regarded as a technical breach .
J J
14. Mr Cheung submits the circumstances of the offending are
K K
exceptional and that the defendant can properly be sentenced by way of a
L non-custodial sentence and asks the court to consider the defendant’s L
suitability for community service10.
M M
N
15. In support of his submissions Mr Cheung has referred the N
11
court to a number of sentencing cases in the District Court . I have
O O
considered these cases.
P P
Q Q
R R
8
See §§8 & 9 of the written grounds of mitigation.
9
S See §§6, 7, 8 & 12 of the written grounds of mitigation. S
10
See §12 of the written grounds of mitigation. The offence is an excepted offence for which a
T suspended sentence cannot be imposed. T
11
HKSAR v He Honglu DCCC 950/2009; HKSAR v Bar Rotem DCCC 995/2015 and two cases in
Chinese DCC 505/2010 and DCCC 709/2014.
U U
V V
-5-
A A
Discussion
B B
C
16. There is no tariff for these offences sentence very much C
depending on the circumstances of the individual case. The courts have
D D
however repeated that deterrent sentences are required 12.
E E
17. The crossbows clearly have the potential of causing very
F serious injury. F
G G
18. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
H recognising that there are varying degrees of culpability said only by H
adopting a stringent approach to the unlicensed possession of arms and
I I
ammunition the court can ensure Hong Kong continues to be a safe city13.
J J
19. Similarly in Secretary for Justice v Yan Shen the Court of
K Appeal said one of the reasons Hong Kong is a safe city is the strict gun K
control laws14.
L L
M 20. In Secretary for Justice v Yan Shen the Court accepted that M
whilst unlicensed possession of a firearm will normally result in an
N N
immediate custodial term, often a substantial term, there will be truly
O exceptional cases where the imposition of a non-custodial term may be O
justified; although the sentencing tribunal will be expected to furnish a
P P
15
sensible and clear explanation for taking that exceptional course .
Q Q
21. I do not agree this was a technical breach. No checks were
R R
made, whether by the defendant or his employer, to ascertain whether a
S 12 S
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
13
CAAR 6/2012 (unreported) at §§44 & 45.
T T
14
[2012] 3 HKLRD 652 at §38.
15
Judgment at §35.
U U
V V
-6-
A A
licence was required. Steps must be taken by everyone involved in
B B
bringing goods into Hong Kong, in particular those in the business of
C transporting goods, to ensure that the goods can legally be imported into C
Hong Kong including whether a licence is required.
D D
E 22. I accept that the defendant did not know a licence was needed. E
Ignorance of the law is however no defence but may constitute mitigation
F F
whereby a merciful sentence can be imposed as culpability is less than
G someone who has deliberately flouted the law16. The case law shows that G
notwithstanding ignorance of the need for a licence an immediate custodial
H H
sentence is usually imposed17.
I I
23. In passing sentence emphasis is placed on whether there is any
J evidence the arms and ammunition were to be used for an unlawful purpose J
and not on whether the offender knew of the need for a licence. Where
K K
there is no such evidence a more lenient sentence will be imposed.
L L
24. One case often referred to is R v Hirai Hirotsugu18 where a
M M
financial penalty was imposed for possession of weapons from the Second
N World War which were properly stored and posed no risk or threat to the N
public.
O O
P 25. In HKSAR v Mohamed P Shafik19, a case concerning stun guns, P
the Court of Appeal said that even though there may be no present intent
Q Q
R 16
See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214. R
17
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC
S 551/1998 and HKSAR v Hung Chun Kit CACC 579/1998 together with more recent sentence cases S
in the District Court for example HKSAR v Meng Min DCCC 1023/2009; HKSAR v Tang Yanqing
DCCC 1394/2010 and HKSAR v Lam Lai Chiu DCCC 87/2014.
T T
18
HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.
19
CACC 224/2014 at §§29-32.
U U
V V
-7-
A A
established on the part of the offender to use the weapon in any such
B B
unlawful way, where there is a real risk in the circumstances that the
C weapon will fall into the hands of someone who will use it for such purpose, C
that is also a factor which will result in a higher starting point of sentence20.
D D
E 26. Mr Cheung emphasises that there was no illegal intention to E
use the crossbows in Hong Kong and because the defendant delivered the
F F
crossbows directly to the warehouse of UPS at Chek Lap Kok, the final
G destination of the crossbows being the USA where possession of crossbows G
is generally legal for hunting purposes, there was no danger to the public in
H H
Hong Kong21.
I I
27. Mr Cheung explained that the original intention was that the
J crossbows would be directly exported to the USA from Guangzhou airport J
and not taken to Hong Kong. However due to air-flight capacity being full
K K
22
the crossbows were exported to Hong Kong for transit to the USA .
L L
28. I have been shown the Air Waybill for shipment from
M M
Guangzhou to Tampa (USA). When the defendant was interviewed he
N gave a copy of the Air Waybill to the Customs. Mr Lee informs the court N
that the Customs then went to the Shenzhen office of UPS who confirmed
O O
the details that the crossbows were originally to be sent to the USA from
P Guangzhou airport. P
Q Q
29. Mr Lee also accepts that the crossbows were “in transit” to be
R shipped to the USA. R
S S
20
Judgment at §32.
T T
21
See §§6 & 12 of the written grounds of mitigation.
22
See §7 of the written grounds of mitigation.
U U
V V
-8-
A A
30. The intended place of delivery by the defendant being the
B B
warehouse of UPS at the airport I accept that the crossbows were to be
C exported to the USA and that there was no risk the crossbows would fall C
into the hands of someone who will use them for an unlawful purpose.
D D
E Delay E
F 31. Where there has been unreasonable delay in bringing an F
offender to justice this is a mitigating factor which may be taken into
G G
account in sentence. All the circumstances must be looked at including
H whether the offender has acknowledged guilt; where the delay has given H
the offender the opportunity to rehabilitate himself; whether restitution has
I I
been made; whether there was a legitimate expectation the matter will not
J be further pursued; the size of the investigation and whether the time taken J
to bring the case to court was longer than necessary23.
K K
L 32. The defendant was arrested on 11 August 2017 and first L
appeared in court over 18 months later on 20 February 2019. Mr Lee
M M
informs the court that the investigation was completed in November 2017
N and the file sent to the Department of Justice on 23 November 2017. N
Legal advice was given on 30 January 2019. Fourteen months seems an
O O
extraordinary long time to furnish advice given the case is not complex.
P P
33. Since first appearing in court the delay in bringing the case to
Q Q
trial has been firstly, the granting of several adjournments over a period of
R six months for the defendant to receive legal advice and secondly, R
adjournments arising from the covid-19 pandemic.
S S
T T
23
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
U U
V V
-9-
A A
34. The matter has now been hanging over the defendant for just
B B
over three years. I am satisfied this is a factor which I can take into
C account in passing sentence24. C
D D
Sentence
E E
35. Taking into account all the circumstances in which the offence
F came to be committed including that the manifest declared the goods were F
crossbows, albeit plastic crossbows, and not goods of an entirely different
G G
nature; the defendant acted out of ignorance of the law when executing his
H company’s orders; there was no risk the crossbows would fall into the H
hands of someone who will use them for an unlawful purpose; the
I I
crossbows were to be exported to the USA, originally from Guangzhou
J airport and the crossbows are generally legal in the USA, I am satisfied the J
defendant’s culpability is at the lower end of the scale for which a deterrent
K K
sentence is not necessary.
L L
36. Taking into account just over three years have elapsed since
M M
the defendant was arrested and the personal circumstances of the defendant
N that he has two young children to look after, I am satisfied a non-custodial N
sentence is appropriate.
O O
P 37. I am satisfied that the defendant living in Shenzen is highly P
unlikely to be suitable for community service, in particular during the
Q Q
present pandemic.
R R
38. I am satisfied a financial penalty is appropriate with the
S defendant being given time to pay. Mr Cheung informs the court that the S
defendant can pay up to $30,000 within 2 months.
T T
24
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
V V
- 10 -
A A
39. Taking into account the defendant’s limited income as a cross-
B B
boundary driver, I am satisfied a fine of $20,000 is appropriate. The
C defendant is convicted and sentenced to a fine of $20,000. C
D D
Payment of the fine
E E
40. The defendant having consented to his bail money being used
F in part payment of the fine, the balance of the fine in the sum of $18,000 is F
to be paid on or before 15 September 2020. In default of payment the
G G
defendant will serve 2 months’ imprisonment.
H H
I I
J (D. J. DUFTON) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
DCCC 201/2019
B [2020] HKDC 712 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 201 OF 2019 D
____________
E HKSAR E
v
F F
YAU CHI KIT
____________
G G
Before: HH Judge Dufton
H H
Date: 21 August 2020
Present: Mr Lee Pak Chau, counsel on Fiat, for HKSAR
I Mr Michael Cheung instructed by Edwin So & Co, I
assigned by the Director of Legal Aid for the defendant
J Offence: J
Dealing in arms without a licence (無牌經營槍械)
K K
REASONS FOR SENTENCE
L L
1. The defendant pleads guilty to one charge of dealing in arms
M without a licence, contrary to section 14 of the Firearms and Ammunition M
Ordinance1. The maximum sentence on conviction on indictment is a fine
N N
at level 6 ($100,000) and imprisonment for 10 years.
O O
2. The arms in question are 600 crossbows.
P P
3. Full particulars of the offence are set out in the facts admitted
Q Q
2
by the defendant today . In summary at around 11:40 a.m. on 11 August
R R
2017 the defendant was driving a cross-boundary truck TS 3940 to Hong
S S
T T
1
Cap 238.
2
Mr Lee adopted the prosecution opening dated 20 January 2020 as the summary of facts.
U U
V V
-2-
A A
Kong when the truck was intercepted for customs clearance at the Lok Ma
B B
Chau Control Point.
C C
4. Upon inspection CO 7118 found inside the truck three hundred
D D
boxes containing six hundred crossbows together with an owner’s manual
E for Barnett crossbows. Mr Lee has clarified in court there was a manual for E
each crossbow.
F F
5. The defendant declared to CO 7118 that the boxes contained
G G
plastic crossbows. The manifest declared three hundred boxes of plastic
H crossbows3. H
I I
6. Under caution the defendant said that neither he nor his
J company had any proof that the draw weight of the crossbows fell below 6 J
kilograms or had any import and export licence for the crossbows 4.
K K
7. In a video recorded interview, the defendant, inter alia, said
L L
that he worked for a logistic company as a cross-boundary truck driver; on
M M
11 August 2017 he received instructions from his supervisor to take over a
N
truck from a Mainland driver which he was to drive to the warehouse of N
UPS in Chek Lap Kok; he would receive $600 for the job; he took over the
O O
truck at Huanggang Port on the Mainland; the truck was already loaded
P with the boxes; he did not open the boxes for inspection; the manifest given P
to him declared three hundred boxes of plastic crossbows and he did not
Q Q
know a licence was required to import the crossbows into Hong Kong.
R R
3
The summary of facts refers to the manifests showing the crossbows were to be exported to the USA.
S S
The manifest does not show this. This information appears to have been obtained from the Air
Waybill, a copy of which the defendant gave to the Customs when he was interviewed and which
T has been submitted to the court. This is further discussed at §28. T
4
Only a crossbow with a draw weight of more than 6 kilograms is within the definition of arms. See
Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D.
U U
V V
-3-
A A
8. Subsequent forensic examination on two of the crossbows
B B
found that the draw weight exceeded 6 kilograms 5. Photographs of the
C crossbows have been submitted to court. I have inspected one of the C
crossbows in court. Mr Lee confirms that all six hundred crossbows are of
D D
the same model.
E E
Mitigation
F F
9. In passing sentence, I have carefully considered the oral and
G G
written submissions of Mr Cheung, including that the defendant having
H separated from his wife in June 2019 is responsible for looking after the H
two children of the marriage, a son aged 15 and a daughter aged 9 who live
I I
6
with him in Shenzhen .
J J
10. The defendant has been a cross-boundary truck driver for
K K
twenty odd years. The defendant was working for YY Logistics when he
L was asked to transport the crossbows. Soon after the defendant lost his job L
with YY Logistics. The defendant has continued to work as cross-
M M
boundary truck driver but owing to the social unrest of 2019 and the onset
N of the covid-19 pandemic this year his income has substantially reduced. N
Recently the defendant was able to secure employment with another
O O
logistics company and is presently earning on average about $10,000 per
P month whereby he can hardly make ends meet7. P
Q Q
11. I have read the defendant’s mitigation letter in which he
R explains the circumstances he came to commit the offences, expresses his R
S S
5
Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D declared that crossbows
with a draw weight of more than 6 kilograms to be within the definition of arms.
T T
6
See §3 of the written grounds of mitigation.
7
See §4 of the written grounds of mitigation and the defendant’s mitigation letter.
U U
V V
-4-
A A
remorse and asks for a lenient sentence so he may continue to take care of
B B
his children. I have also read the letters written by the children 8.
C C
12. I take into account that the defendant, aged 42, has no similar
D D
previous convictions and that his only convictions were in 2005 when he
E was sentenced to 12 months’ imprisonment for offences of dealing with E
goods to which the Dutiable Commodities Ordinance applied and
F F
possession for the purpose of manufacture goods to which forged trade
G marks were applied. G
H 13. Mr Cheung submits that the defendant committed the offence H
out of ignorance of the law when executing his company’s orders and
I I
9
therefore the offence can be regarded as a technical breach .
J J
14. Mr Cheung submits the circumstances of the offending are
K K
exceptional and that the defendant can properly be sentenced by way of a
L non-custodial sentence and asks the court to consider the defendant’s L
suitability for community service10.
M M
N
15. In support of his submissions Mr Cheung has referred the N
11
court to a number of sentencing cases in the District Court . I have
O O
considered these cases.
P P
Q Q
R R
8
See §§8 & 9 of the written grounds of mitigation.
9
S See §§6, 7, 8 & 12 of the written grounds of mitigation. S
10
See §12 of the written grounds of mitigation. The offence is an excepted offence for which a
T suspended sentence cannot be imposed. T
11
HKSAR v He Honglu DCCC 950/2009; HKSAR v Bar Rotem DCCC 995/2015 and two cases in
Chinese DCC 505/2010 and DCCC 709/2014.
U U
V V
-5-
A A
Discussion
B B
C
16. There is no tariff for these offences sentence very much C
depending on the circumstances of the individual case. The courts have
D D
however repeated that deterrent sentences are required 12.
E E
17. The crossbows clearly have the potential of causing very
F serious injury. F
G G
18. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
H recognising that there are varying degrees of culpability said only by H
adopting a stringent approach to the unlicensed possession of arms and
I I
ammunition the court can ensure Hong Kong continues to be a safe city13.
J J
19. Similarly in Secretary for Justice v Yan Shen the Court of
K Appeal said one of the reasons Hong Kong is a safe city is the strict gun K
control laws14.
L L
M 20. In Secretary for Justice v Yan Shen the Court accepted that M
whilst unlicensed possession of a firearm will normally result in an
N N
immediate custodial term, often a substantial term, there will be truly
O exceptional cases where the imposition of a non-custodial term may be O
justified; although the sentencing tribunal will be expected to furnish a
P P
15
sensible and clear explanation for taking that exceptional course .
Q Q
21. I do not agree this was a technical breach. No checks were
R R
made, whether by the defendant or his employer, to ascertain whether a
S 12 S
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
13
CAAR 6/2012 (unreported) at §§44 & 45.
T T
14
[2012] 3 HKLRD 652 at §38.
15
Judgment at §35.
U U
V V
-6-
A A
licence was required. Steps must be taken by everyone involved in
B B
bringing goods into Hong Kong, in particular those in the business of
C transporting goods, to ensure that the goods can legally be imported into C
Hong Kong including whether a licence is required.
D D
E 22. I accept that the defendant did not know a licence was needed. E
Ignorance of the law is however no defence but may constitute mitigation
F F
whereby a merciful sentence can be imposed as culpability is less than
G someone who has deliberately flouted the law16. The case law shows that G
notwithstanding ignorance of the need for a licence an immediate custodial
H H
sentence is usually imposed17.
I I
23. In passing sentence emphasis is placed on whether there is any
J evidence the arms and ammunition were to be used for an unlawful purpose J
and not on whether the offender knew of the need for a licence. Where
K K
there is no such evidence a more lenient sentence will be imposed.
L L
24. One case often referred to is R v Hirai Hirotsugu18 where a
M M
financial penalty was imposed for possession of weapons from the Second
N World War which were properly stored and posed no risk or threat to the N
public.
O O
P 25. In HKSAR v Mohamed P Shafik19, a case concerning stun guns, P
the Court of Appeal said that even though there may be no present intent
Q Q
R 16
See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214. R
17
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC
S 551/1998 and HKSAR v Hung Chun Kit CACC 579/1998 together with more recent sentence cases S
in the District Court for example HKSAR v Meng Min DCCC 1023/2009; HKSAR v Tang Yanqing
DCCC 1394/2010 and HKSAR v Lam Lai Chiu DCCC 87/2014.
T T
18
HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.
19
CACC 224/2014 at §§29-32.
U U
V V
-7-
A A
established on the part of the offender to use the weapon in any such
B B
unlawful way, where there is a real risk in the circumstances that the
C weapon will fall into the hands of someone who will use it for such purpose, C
that is also a factor which will result in a higher starting point of sentence20.
D D
E 26. Mr Cheung emphasises that there was no illegal intention to E
use the crossbows in Hong Kong and because the defendant delivered the
F F
crossbows directly to the warehouse of UPS at Chek Lap Kok, the final
G destination of the crossbows being the USA where possession of crossbows G
is generally legal for hunting purposes, there was no danger to the public in
H H
Hong Kong21.
I I
27. Mr Cheung explained that the original intention was that the
J crossbows would be directly exported to the USA from Guangzhou airport J
and not taken to Hong Kong. However due to air-flight capacity being full
K K
22
the crossbows were exported to Hong Kong for transit to the USA .
L L
28. I have been shown the Air Waybill for shipment from
M M
Guangzhou to Tampa (USA). When the defendant was interviewed he
N gave a copy of the Air Waybill to the Customs. Mr Lee informs the court N
that the Customs then went to the Shenzhen office of UPS who confirmed
O O
the details that the crossbows were originally to be sent to the USA from
P Guangzhou airport. P
Q Q
29. Mr Lee also accepts that the crossbows were “in transit” to be
R shipped to the USA. R
S S
20
Judgment at §32.
T T
21
See §§6 & 12 of the written grounds of mitigation.
22
See §7 of the written grounds of mitigation.
U U
V V
-8-
A A
30. The intended place of delivery by the defendant being the
B B
warehouse of UPS at the airport I accept that the crossbows were to be
C exported to the USA and that there was no risk the crossbows would fall C
into the hands of someone who will use them for an unlawful purpose.
D D
E Delay E
F 31. Where there has been unreasonable delay in bringing an F
offender to justice this is a mitigating factor which may be taken into
G G
account in sentence. All the circumstances must be looked at including
H whether the offender has acknowledged guilt; where the delay has given H
the offender the opportunity to rehabilitate himself; whether restitution has
I I
been made; whether there was a legitimate expectation the matter will not
J be further pursued; the size of the investigation and whether the time taken J
to bring the case to court was longer than necessary23.
K K
L 32. The defendant was arrested on 11 August 2017 and first L
appeared in court over 18 months later on 20 February 2019. Mr Lee
M M
informs the court that the investigation was completed in November 2017
N and the file sent to the Department of Justice on 23 November 2017. N
Legal advice was given on 30 January 2019. Fourteen months seems an
O O
extraordinary long time to furnish advice given the case is not complex.
P P
33. Since first appearing in court the delay in bringing the case to
Q Q
trial has been firstly, the granting of several adjournments over a period of
R six months for the defendant to receive legal advice and secondly, R
adjournments arising from the covid-19 pandemic.
S S
T T
23
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
U U
V V
-9-
A A
34. The matter has now been hanging over the defendant for just
B B
over three years. I am satisfied this is a factor which I can take into
C account in passing sentence24. C
D D
Sentence
E E
35. Taking into account all the circumstances in which the offence
F came to be committed including that the manifest declared the goods were F
crossbows, albeit plastic crossbows, and not goods of an entirely different
G G
nature; the defendant acted out of ignorance of the law when executing his
H company’s orders; there was no risk the crossbows would fall into the H
hands of someone who will use them for an unlawful purpose; the
I I
crossbows were to be exported to the USA, originally from Guangzhou
J airport and the crossbows are generally legal in the USA, I am satisfied the J
defendant’s culpability is at the lower end of the scale for which a deterrent
K K
sentence is not necessary.
L L
36. Taking into account just over three years have elapsed since
M M
the defendant was arrested and the personal circumstances of the defendant
N that he has two young children to look after, I am satisfied a non-custodial N
sentence is appropriate.
O O
P 37. I am satisfied that the defendant living in Shenzen is highly P
unlikely to be suitable for community service, in particular during the
Q Q
present pandemic.
R R
38. I am satisfied a financial penalty is appropriate with the
S defendant being given time to pay. Mr Cheung informs the court that the S
defendant can pay up to $30,000 within 2 months.
T T
24
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
V V
- 10 -
A A
39. Taking into account the defendant’s limited income as a cross-
B B
boundary driver, I am satisfied a fine of $20,000 is appropriate. The
C defendant is convicted and sentenced to a fine of $20,000. C
D D
Payment of the fine
E E
40. The defendant having consented to his bail money being used
F in part payment of the fine, the balance of the fine in the sum of $18,000 is F
to be paid on or before 15 September 2020. In default of payment the
G G
defendant will serve 2 months’ imprisonment.
H H
I I
J (D. J. DUFTON) J
District Judge
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V