A HCCC 287/2019 A
[2020] HKCFI 2478
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 287 OF 2019
D ----------------- D
HKSAR
E E
v
F F
Chan Tung-wing
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 3 September 2020 at 10.01 am H
Present: Ms Sheroy Tam, SPP of the Department of Justice, for
I
HKSAR I
Mr Chan Pak-kong, instructed by K B Chau & Co, assigned
by DLA, for the accused
J Offence: Possession of arms and ammunition without a licence J
(無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: Defendant, you pleaded guilty before a magistrate at the M
Eastern Magistracy on 26 August 2019 to a charge of
possession of arms and ammunition without a licence,
N N
contrary to section 13(1) and (2) of the Firearms and
Ammunition Ordinance, Chapter 238. As a result of your plea
O of guilty and admission of facts in the Summary of Facts, O
you were committed here to the Court of First Instance for
sentence.
P P
You have admitted that on 21 July 2018, at Sham Shui Po,
Kowloon, you had in your possession arms and ammunition,
Q Q
namely one shotgun and seven live shotgun cartridges in
12 gauge calibre ammunition, without a licence.
R R
At about 1.40 am on 21 July, a uniformed police officer
patrolling along Tung Chau Street, Sham Shui Po saw you
S loitering near some temporary wooden huts under the Tung S
Chau Street flyover. The officer and his colleague
T
approached you for an enquiry. When one of the officers T
used his torch and shone it on you and declared his
identity, you ignored him and ran along the footpath outside
U Tung Chau Street away from the officers. U
CRT26/3.9.2020/JC/sc 1 HCCC 287/2019(1)/Sentence
V V
A A
You were eventually stopped outside a tennis court of Tung
Chau Street Park. Upon search of your backpack, a shotgun
B loaded with a live round of shotgun cartridges was found. B
You were arrested and cautioned. You stated that you were
worried someone would kill you. Sweeping was conducted
C C
along the route of your escape of which the police officers
found a total of six shotgun cartridges.
D D
In a video-recorded interview, under caution, you stated
that about four years ago a person with the surname Xie gave
E you $3,000 and asked you to take this shotgun from the E
mainland to Hong Kong. You accepted the offer. You first
dismantled the gun in the mainland, then took the parts back
F F
to Hong Kong.
G Upon your return to Hong Kong, you reassembled the gun at G
home and kept the shotgun and cartridges at your residence
as Xie asked you to keep the gun for him. You knew Xie
H needed the gun as Xie was in debt. Xie later told you that H
you did not have enough shotgun cartridges. You therefore
I
got more cartridges from a person named So Chi-hung. I
You continued to store the gun and cartridges at your home
J for Xie and Xie told you that he would come to pick it up J
when something came up. However, Xie never came to pick
them up.
K K
Two days before you were arrested, a female friend of yours
L asked you for a weapon as her boyfriend had earlier been L
assaulted. You told her you had a gun. She asked you to
bring the gun out for her. You agreed. You were arrested
M when you were on your way to meet up with this friend. You M
accepted that the six shotgun cartridges subsequently found
by the police were dropped by you when you were trying to
N escape. You also told the police you never used the gun. N
O Following examination, the gun seized was found to be one O
live shotgun in 12 gauge calibre. The examination conducted
on it for firing was conducted successfully. The seven
P cartridges seized were found to be live shotgun cartridges. P
There was DNA found on the cartridge that could have
Q Q
originated from you, and DNA found on the shotgun was a
mixture of at least three DNA sources of which one was the
R possible source from you. You do not hold a licence for R
firearms or ammunition.
S Defendant, you are 58 years of age. You have two previous S
convictions which are minor convictions. Before your
arrest, you were a casual decoration worker. You are a drug
T T
abuser and you are educated up to Primary level 5. You
cohabitate with your girlfriend and her son. You have never
U been sentenced to imprisonment before. U
CRT26/3.9.2020/JC/sc 2 HCCC 287/2019(1)/Sentence
V V
A A
Mr P K Chan has submitted full mitigation on your behalf and
I have taken into account what he has had to say. It is
B clear from your admissions after arrest that you have been B
fully co-operative with the police. Apart from giving a
full and frank admission to the offence, your exposure of Mr
C C
So Chi-hung had led to his arrest. I am informed that he
was charged and has since been convicted of possession of
D ammunition without a licence. In fact, you gave evidence D
for the prosecution in that case, District Court case,
against Mr So, and I am informed that there is no dispute
E that you gave truthful and material evidence and this E
provided useful assistance to the prosecution and resulted
in the conviction of Mr So. I am informed that in fact he
F F
was only convicted a few days ago, that is on
28 August 2020, and he is pending sentence.
G G
Mr Chan has been forthright in conceding that there are two
aggravating factors in this case. The first is that the
H shotgun and shotgun cartridges were obtained from mainland H
China so that there is an international element, and the
I
second is that the shotgun was loaded when you were I
arrested.
J He, however, relies on other mitigating factors and they are J
your plea of guilty at the first opportunity, the fact that
you have never used the gun or the cartridges even after you
K had obtained them some four years ago. You were only K
keeping the arms and ammunition for another person. You
L have no similar record for use of violence or for a similar L
offence and do not have any triad background.
M Mr Chan submits that the court should adopt a sentence of M
not more than 12 years’ imprisonment and give you a 50 per
cent discount incorporating the one-third discount for your
N plea of guilty as a result of your assistance provided to N
the authorities. I accept Mr Chan’s mitigation in that you
O should be given a 50 per cent discount from the sentence O
point as you had given material and truthful evidence
against Mr So and you had pleaded guilty at the first
P opportunity, and the authority I rely upon and to which Mr P
Chan has referred me to is that of Z v HKSAR [2007] 10
HKCFAR 183.
Q Q
In respect of the appropriate sentence for the possession of
R firearms and ammunition, Mr Chan has accepted the cases put R
forward by the prosecution and those are R v Au Yeung Wai
Kwong, CACC 238/1994, HKSAR v Chan Hoi Ngam, CACC 243/1999,
S HKSAR v Sau Yi(Yau Siu?) Kai, CACC 148/2000, HKSAR v Cheung S
Sik Wai, Terry, CACC 373/2009, and R v Man Hung Pui,
CACC 222/1992.
T T
He further relies upon the case of HKSAR - a more recent
U case - HKSAR v Hu Quanwu [2011] 3 HKLRD 686 whereby the U
CRT26/3.9.2020/JC/sc 3 HCCC 287/2019(1)/Sentence
V V
A Court of Appeal there confirmed that the 12-year starting A
point was appropriate for an offence of this type where
there was a live ammunition. In that case of Hu, the Court
B of First Instance, the sentencing court, had imposed a B
starting point of 13 years as the gun was imported into
Hong Kong. The Court of Appeal, however, allowed the appeal
C C
and found the starting point was manifestly excessive and
reduced the starting point to 12 years’ imprisonment.
D D
At paragraph 27, Yeung JA, or VP as he is now, said the
following:
E E
“The judge, in her reasons for sentence, clearly took
into consideration that the firearm and ammunition were
F F
imported into Hong Kong. We agreed that if a gun ‘was
brought into Hong Kong’ for a criminal purpose, it
G would be an aggravating factor. However, the evidence G
was unclear on this issue, as conceded by Ms Rosa Lo
for the respondent. The applicant said he was told to
H come to Hong Kong and ‘to bring something’, but the gun H
was given to him by Li in a park in Temple Street. We
I
were persuaded that the judge was wrong to have taken I
into account, as an aggravating factor, that the gun
was brought into Hong Kong.”
J J
I distinguish this case from Hu’s case in that in this case
the defendant had imported the gun into Hong Kong, knowing
K that Xie needed the gun as Xie was in debt. This is a clear K
irresistible inference that the gun was to be used for a
L crime. L
Furthermore, in this case, on the defendant’s admission, on
M the evening he was arrested he was going to give this gun to M
a friend as that friend’s boyfriend had been assaulted.
Again, this is clearly for a criminal purpose, for a crime.
N So, I distinguish the case from Hu’s case and consider that N
there is an aggravating factor here to which the starting
O point of 12 years’ imprisonment should be enhanced. O
Defendant, had you been convicted after trial, I would have
P taken a starting point of 12 years’ imprisonment. I enhance P
that starting point by 6 months for the importation of the
gun for a criminal purpose and also the fact that on the
Q Q
early morning that you were arrested you were also going to
give this gun to somebody else for another criminal purpose.
R R
You have pleaded guilty at the first opportunity and you
have also given evidence and provided assistance to the
S authorities. In those circumstances, I will discount the S
sentencing point by 50 per cent which includes the one-third
discount.
T T
In the circumstances, defendant, you are sentenced to
U 6 years and 3 months’ imprisonment. U
CRT26/3.9.2020/JC/sc 4 HCCC 287/2019(1)/Sentence
V V
A A
B B
C C
D D
E E
F F
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
CRT26/3.9.2020/JC/sc 5 HCCC 287/2019(1)/Sentence
V V
A HCCC 287/2019 A
[2020] HKCFI 2478
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 287 OF 2019
D ----------------- D
HKSAR
E E
v
F F
Chan Tung-wing
G ----------------- G
Before: Hon D’Almada Remedios J
H Date: 3 September 2020 at 10.01 am H
Present: Ms Sheroy Tam, SPP of the Department of Justice, for
I
HKSAR I
Mr Chan Pak-kong, instructed by K B Chau & Co, assigned
by DLA, for the accused
J Offence: Possession of arms and ammunition without a licence J
(無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: Defendant, you pleaded guilty before a magistrate at the M
Eastern Magistracy on 26 August 2019 to a charge of
possession of arms and ammunition without a licence,
N N
contrary to section 13(1) and (2) of the Firearms and
Ammunition Ordinance, Chapter 238. As a result of your plea
O of guilty and admission of facts in the Summary of Facts, O
you were committed here to the Court of First Instance for
sentence.
P P
You have admitted that on 21 July 2018, at Sham Shui Po,
Kowloon, you had in your possession arms and ammunition,
Q Q
namely one shotgun and seven live shotgun cartridges in
12 gauge calibre ammunition, without a licence.
R R
At about 1.40 am on 21 July, a uniformed police officer
patrolling along Tung Chau Street, Sham Shui Po saw you
S loitering near some temporary wooden huts under the Tung S
Chau Street flyover. The officer and his colleague
T
approached you for an enquiry. When one of the officers T
used his torch and shone it on you and declared his
identity, you ignored him and ran along the footpath outside
U Tung Chau Street away from the officers. U
CRT26/3.9.2020/JC/sc 1 HCCC 287/2019(1)/Sentence
V V
A A
You were eventually stopped outside a tennis court of Tung
Chau Street Park. Upon search of your backpack, a shotgun
B loaded with a live round of shotgun cartridges was found. B
You were arrested and cautioned. You stated that you were
worried someone would kill you. Sweeping was conducted
C C
along the route of your escape of which the police officers
found a total of six shotgun cartridges.
D D
In a video-recorded interview, under caution, you stated
that about four years ago a person with the surname Xie gave
E you $3,000 and asked you to take this shotgun from the E
mainland to Hong Kong. You accepted the offer. You first
dismantled the gun in the mainland, then took the parts back
F F
to Hong Kong.
G Upon your return to Hong Kong, you reassembled the gun at G
home and kept the shotgun and cartridges at your residence
as Xie asked you to keep the gun for him. You knew Xie
H needed the gun as Xie was in debt. Xie later told you that H
you did not have enough shotgun cartridges. You therefore
I
got more cartridges from a person named So Chi-hung. I
You continued to store the gun and cartridges at your home
J for Xie and Xie told you that he would come to pick it up J
when something came up. However, Xie never came to pick
them up.
K K
Two days before you were arrested, a female friend of yours
L asked you for a weapon as her boyfriend had earlier been L
assaulted. You told her you had a gun. She asked you to
bring the gun out for her. You agreed. You were arrested
M when you were on your way to meet up with this friend. You M
accepted that the six shotgun cartridges subsequently found
by the police were dropped by you when you were trying to
N escape. You also told the police you never used the gun. N
O Following examination, the gun seized was found to be one O
live shotgun in 12 gauge calibre. The examination conducted
on it for firing was conducted successfully. The seven
P cartridges seized were found to be live shotgun cartridges. P
There was DNA found on the cartridge that could have
Q Q
originated from you, and DNA found on the shotgun was a
mixture of at least three DNA sources of which one was the
R possible source from you. You do not hold a licence for R
firearms or ammunition.
S Defendant, you are 58 years of age. You have two previous S
convictions which are minor convictions. Before your
arrest, you were a casual decoration worker. You are a drug
T T
abuser and you are educated up to Primary level 5. You
cohabitate with your girlfriend and her son. You have never
U been sentenced to imprisonment before. U
CRT26/3.9.2020/JC/sc 2 HCCC 287/2019(1)/Sentence
V V
A A
Mr P K Chan has submitted full mitigation on your behalf and
I have taken into account what he has had to say. It is
B clear from your admissions after arrest that you have been B
fully co-operative with the police. Apart from giving a
full and frank admission to the offence, your exposure of Mr
C C
So Chi-hung had led to his arrest. I am informed that he
was charged and has since been convicted of possession of
D ammunition without a licence. In fact, you gave evidence D
for the prosecution in that case, District Court case,
against Mr So, and I am informed that there is no dispute
E that you gave truthful and material evidence and this E
provided useful assistance to the prosecution and resulted
in the conviction of Mr So. I am informed that in fact he
F F
was only convicted a few days ago, that is on
28 August 2020, and he is pending sentence.
G G
Mr Chan has been forthright in conceding that there are two
aggravating factors in this case. The first is that the
H shotgun and shotgun cartridges were obtained from mainland H
China so that there is an international element, and the
I
second is that the shotgun was loaded when you were I
arrested.
J He, however, relies on other mitigating factors and they are J
your plea of guilty at the first opportunity, the fact that
you have never used the gun or the cartridges even after you
K had obtained them some four years ago. You were only K
keeping the arms and ammunition for another person. You
L have no similar record for use of violence or for a similar L
offence and do not have any triad background.
M Mr Chan submits that the court should adopt a sentence of M
not more than 12 years’ imprisonment and give you a 50 per
cent discount incorporating the one-third discount for your
N plea of guilty as a result of your assistance provided to N
the authorities. I accept Mr Chan’s mitigation in that you
O should be given a 50 per cent discount from the sentence O
point as you had given material and truthful evidence
against Mr So and you had pleaded guilty at the first
P opportunity, and the authority I rely upon and to which Mr P
Chan has referred me to is that of Z v HKSAR [2007] 10
HKCFAR 183.
Q Q
In respect of the appropriate sentence for the possession of
R firearms and ammunition, Mr Chan has accepted the cases put R
forward by the prosecution and those are R v Au Yeung Wai
Kwong, CACC 238/1994, HKSAR v Chan Hoi Ngam, CACC 243/1999,
S HKSAR v Sau Yi(Yau Siu?) Kai, CACC 148/2000, HKSAR v Cheung S
Sik Wai, Terry, CACC 373/2009, and R v Man Hung Pui,
CACC 222/1992.
T T
He further relies upon the case of HKSAR - a more recent
U case - HKSAR v Hu Quanwu [2011] 3 HKLRD 686 whereby the U
CRT26/3.9.2020/JC/sc 3 HCCC 287/2019(1)/Sentence
V V
A Court of Appeal there confirmed that the 12-year starting A
point was appropriate for an offence of this type where
there was a live ammunition. In that case of Hu, the Court
B of First Instance, the sentencing court, had imposed a B
starting point of 13 years as the gun was imported into
Hong Kong. The Court of Appeal, however, allowed the appeal
C C
and found the starting point was manifestly excessive and
reduced the starting point to 12 years’ imprisonment.
D D
At paragraph 27, Yeung JA, or VP as he is now, said the
following:
E E
“The judge, in her reasons for sentence, clearly took
into consideration that the firearm and ammunition were
F F
imported into Hong Kong. We agreed that if a gun ‘was
brought into Hong Kong’ for a criminal purpose, it
G would be an aggravating factor. However, the evidence G
was unclear on this issue, as conceded by Ms Rosa Lo
for the respondent. The applicant said he was told to
H come to Hong Kong and ‘to bring something’, but the gun H
was given to him by Li in a park in Temple Street. We
I
were persuaded that the judge was wrong to have taken I
into account, as an aggravating factor, that the gun
was brought into Hong Kong.”
J J
I distinguish this case from Hu’s case in that in this case
the defendant had imported the gun into Hong Kong, knowing
K that Xie needed the gun as Xie was in debt. This is a clear K
irresistible inference that the gun was to be used for a
L crime. L
Furthermore, in this case, on the defendant’s admission, on
M the evening he was arrested he was going to give this gun to M
a friend as that friend’s boyfriend had been assaulted.
Again, this is clearly for a criminal purpose, for a crime.
N So, I distinguish the case from Hu’s case and consider that N
there is an aggravating factor here to which the starting
O point of 12 years’ imprisonment should be enhanced. O
Defendant, had you been convicted after trial, I would have
P taken a starting point of 12 years’ imprisonment. I enhance P
that starting point by 6 months for the importation of the
gun for a criminal purpose and also the fact that on the
Q Q
early morning that you were arrested you were also going to
give this gun to somebody else for another criminal purpose.
R R
You have pleaded guilty at the first opportunity and you
have also given evidence and provided assistance to the
S authorities. In those circumstances, I will discount the S
sentencing point by 50 per cent which includes the one-third
discount.
T T
In the circumstances, defendant, you are sentenced to
U 6 years and 3 months’ imprisonment. U
CRT26/3.9.2020/JC/sc 4 HCCC 287/2019(1)/Sentence
V V
A A
B B
C C
D D
E E
F F
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
CRT26/3.9.2020/JC/sc 5 HCCC 287/2019(1)/Sentence
V V