A A
DCCC 363/2020
B [2020] HKDC 910 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 363 OF 2020 D
____________
E HKSAR E
v
F F
LO CHI YUEN
____________
G G
Before: HH Judge Dufton
H H
Date: 12 October 2020
Present: Mr Timothy Chen, PP, of the Department of Justice,
I for HKSAR I
Mr Fu Yu Hong of Sam Fu & Co, for the defendant
J Offence: Possession of arms and ammunition without a licence J
(無牌管有槍械及彈藥)
K K
REASONS FOR SENTENCE
L L
M
1. The defendant pleads guilty to one charge of possession of M
arms and ammunition without a licence, contrary to section 13 of the
N N
Firearms and Ammunition Ordinance 1 . The maximum sentence on
O conviction on indictment is a fine at level 6 ($100,000) and imprisonment O
for 14 years.
P P
2. The arms and ammunition in question are one silencer; one
Q Q
lower receiver of a pistol; two self-loading pistols with magazine; one self-
R loading pistol; one self-loading rifle with magazine; three self-loading rifles R
and six rounds of ammunition.
S S
T T
1
Cap 238.
U U
V V
-2-
A A
3. Full particulars of the offence are set out in the amended
B B
summary of facts admitted by the defendant today2.
C C
4. In summary at 11:09 a.m. on 17 July 2018 a Customs &
D D
Excise officer responsible for customs clearance at the Hong Kong
E International Airport discovered a suspected gun barrel in a carton box E
which had been imported by mail from the USA to Shop Easy Logistic Ltd,
F F
a logistic company in Mongkok. The contents of the carton box were
G declared as “wearing apparel/shoes/toys”. G
H 5. The case was reported to the police. Preliminary examination H
by a Forensic Firearm Examiner confirmed the carton box contained a
I I
suspected gun barrel.
J J
6. The same day the police went to the office of Shop Easy.
K K
Record check revealed that the defendant was the consignee of the carton
L box; that between September 2015 and July 2018 the defendant received L
various goods declared as car components, tools, books, shoes, toys, lights
M M
and lotion and that four parcels declared as car parts and lights were
N awaiting collection. N
O O
7. Preliminary examination by a Forensic Firearm Examiner
P found the four parcels to contain suspected trigger parts, pistol barrel and P
pistol slide.
Q Q
8. The next day at 1:25 p.m. the defendant attended Shop Easy
R R
3
and collected the four parcels .
S S
2
The defendant first appeared for plea and sentence on 18 September 2020. The court not being
T satisfied the summary of facts were sufficiently clear and precise as they should have been in order T
to explain the plea of guilty and to assist the court, the case was adjourned for the prosecution to
amend the summary of facts.
U U
V V
-3-
A A
9. The police put the defendant under observation. The
B B
defendant took the MTR to his office in San Po Kong where he stayed until
C 7:20 p.m. when he left to go to the Tuen Mun Hospital by bus still carrying C
the four parcels.
D D
E 10. After visiting the hospital, the defendant took the light rail to E
his home in Hung Shui Kiu. At 9:14 p.m. the police arrested the defendant
F F
outside his home and seized the four parcels.
G G
11. On a search of the defendant’s home the police found in the
H defendant’s study room various gun parts and firearm components; a H
silencer; a lower receiver of a pistol and six rounds of ammunition, which
I I
were all stored in password locked boxes.
J J
12. Forensic examination confirmed that the various gun parts and
K K
firearm components could be assembled into seven genuine firearms: three
L pistols and four rifles as particularised in the charge, all of which were L
functional upon test fire. The cartridge of one pistol and four cartridges of
M M
one rifle each contained a bullet. Mr Chen confirmed in court that these
N bullets were dummy bullets. N
O O
13. Five of the six rounds of ammunition were live bullets suitable
P for discharge from firearms such as AR-10 and AR-15 rifles. The sixth P
round of ammunition was a blank. Mr Chen confirmed in court that all six
Q Q
rounds of ammunition were not suitable for discharge from any of the
R seven firearms subject of the charge. R
S S
T T
3
Mr Chen confirmed in court that the defendant did not collect the carton box containing the
suspected gun barrel.
U U
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-4-
A A
14. The Forensic Firearms Examiner’s report has been submitted
B B
to court together with photographs of all the arms and ammunition seized 4.
C C
15. In video recorded interviews, the defendant said, inter alia, that
D D
he was a war game enthusiast; he kept the guns for around four years for
E personal collection purposes; he had no firearm licence in Hong Kong only E
in Thailand where he had received training; he bought the various parts and
F F
components from various US websites and had them delivered to an
G address in the US provided by Shop Easy who would then mail them to G
Hong Kong; the items were declared as “DIY tools” for customs clearance
H H
purposes; the firearms, ammunition and components were stored in
I password-locked boxes inside his bedroom and he was the only one who I
knew the passwords; he used dummy bullets to test whether his guns could
J J
fire; he never used genuine bullets or ammunition and that he picked up
K bullets and cartridge cases while hiking near a training range at Ha Pak Nai. K
L L
16. On 1 August 2018 Shop Easy received seven more parcels
M
declared as lotion, toy or car parts. On 14 August 2018 Shop Easy received M
a further four parcels declared as car parts. The police seized the parcels
N N
and unpacked them in the presence of the defendant. All the parcels
O
contained suspected gun parts. O
P 17. Except for the silencer and the lower receiver of a pistol, the P
charge relates only to the gun parts and firearm components which were
Q Q
found in the defendant’s study room and could be assembled into genuine
R firearms. The remaining gun parts and firearm components including the R
suspected gun barrel found in the carton box on 17 July 2018; the suspected
S S
gun parts found in the four parcels collected by the defendant on 18 July
T T
4
A total of six books of photographs were submitted to court.
U U
V V
-5-
A A
2018 and the gun parts in the parcels seized by the police on 1 August and
B B
14 August 2018 are not the subject of the charge.
C C
Mitigation
D D
18. In passing sentence, I have carefully considered the oral and
E E
written submissions of Mr Fu, including that the defendant, aged 42, is
F married with two twin boys, aged 9 and has worked for Forever Health F
Medical Instrument Limited since 20005.
G G
H 19. I have read the mitigation letter written by the defendant’s H
wife who describes her husband as a kind hearted and reliable person and
I I
how he helps the patients he meets through his work 6.
J J
20. Mr Fu has summarised the letters written by the two boys who
K ask for a lenient sentence for their father7. K
L L
21. Mr Fu has also summarised the mitigation letter written by the
M defendant’s mother in which she asks for a lenient sentence 8 . Medical M
reports of the defendant’s mother have also been submitted9.
N N
O
22. I have read the mitigation letter written by Mr Nelson Wong, O
the Executive Director of Forever Health Medical Instrument Limited. Mr
P P
Wong describes how the defendant first started working for the company as
Q a fresh graduate to how he has become a very important member who has Q
R R
5
See §§3 & 4 of the written mitigation.
6
Item 3, Part B, 2nd Mitigation Bundle. The defendant’s wife has also written a mitigation letter in
S S
Chinese: Item 21, Mitigation Bundle.
7
Items 19 & 20, Mitigation Bundle.
T T
8
Item 12, Mitigation Bundle.
9
Item 13, Mitigation Bundle.
U U
V V
-6-
A A
contributed to the growth of the company and is now the team leader of the
B B
Respiratory Unit. Mr Wong regards the defendant as someone who cannot
C be replaced. C
D D
23. Mr Wong is particularly impressed with the way the defendant
E cares for patients with disabilities and how he has given up his own free E
time to visit children, who can only breath through the help of a ventilator,
F F
to observe how they use the ventilators and to help their parents.
G G
24. Mr Wong regards the defendant very highly indeed and looks
H forward to the day he will once again be representing his company. In the H
meantime Mr Wong promises not only to reserve the defendant’s position
I I
in the company but also to maintain all his benefits until he returns to
J work10. J
K K
25. I also take into account the thank you cards from the Tuen
L Mun Hospital; a customer of the company and the Jockey Club New Page L
Inn, all showing their appreciation of the defendant’s work11. Mr Fu has
M M
also summarised the letters written by friends and colleagues, all asking for
N a lenient sentence12. N
O O
26. Mr Fu explains that the defendant is a war game enthusiast
P who purchased the firearms on the internet for his own appreciation and P
enjoyment; the defendant had received training in the use of firearms in
Q Q
R R
S S
10
Item 2, Part B, 2nd Mitigation Bundle. Mr Wong has also written a mitigation letter in Chinese:
Item 18, Mitigation Bundle.
T T
11
Items 8, 9 & 10, Mitigation Bundle.
12
Items 15,16 & 17, Mitigation Bundle.
U U
V V
-7-
A A
Thailand where he had obtained a firearm licence and that the defendant
B B
had never used the firearms13.
C C
27. I have read the defendant’s mitigation letter in which he
D D
explains that since his first contact with firearms shooting in Thailand in
E 2016 he has participated in various competitions and technical exchanges E
during which he has met many law enforcement officers and members of
F F
the army. Using his knowledge of mechanical operations, he obtained
G various gun parts for research purposes to help his friends from local law G
enforcement agencies in Thailand solve their technical questions 14. The
H H
defendant asks for a light sentence so he may continue to serve chronically
I ill patients and take care of his family. I
J 28. I take into account that the defendant has no previous J
convictions.
K K
L Discussion L
M M
29. Mr Fu has referred the court to a number of authorities and
N
sentencing cases in the District Court and submits that the starting point to N
15
be adopted is likely to be 40 months imprisonment . I have considered the
O O
cases submitted by Mr Fu.
P P
16
30. What is clear is that deterrent sentences are required .
Q Q
13
See §§7 & 8 of the written mitigation. and Item 11, Mitigation Bundle.
R R
14
Item 4, Part B, 2nd Mitigation Bundle. The defendant has also written a mitigation letter in Chinese:
Item 14, Mitigation Bundle.
S 15 S
See §§10-19 of the written mitigation. Mr Fu referred the court to HKSAR v Chan Chi Fun [2006] 1
HKLRD 128; HKSAR v Wong Chun Yim CACC 185/2007; Secretary for Justice v Yan Shen CAAR
T 10/2011; Secretary for Justice v Leung Kwok Chi CAAR 6/2012 and two sentencing cases HKSAR v T
Fung Fuk Cheung DCCC 348/2016 and HKSAR v Royster William Edward DCCC 142/2020.
16
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
U U
V V
-8-
A A
31. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
B B
recognising that there are varying degrees of culpability said only by
C adopting a stringent approach to the unlicensed possession of arms and C
ammunition the court can ensure Hong Kong continues to be a safe city17.
D D
E 32. Similarly in Secretary for Justice v Yan Shen the Court of E
Appeal said one of the reasons Hong Kong is a safe city is the strict gun
F F
control laws18.
G G
33. A review of the case law shows that a distinction has been
H drawn between cases where there was an intention to use the firearm for H
unlawful purpose and cases of “simple possession” where there was no
I I
such intention.
J J
34. Mr Fu refers the court to the judgment in HKSAR v Chan Chi
K K
Fun where the court emphasised that the level of sentence depends on the
L court’s assessment of the potential risk posed by the arms and ammunition L
in the defendant’s possession, taking into account the circumstances and
M M
the defendant’s background 19.
N N
35. This distinction was the subject of discussion in the recent
O O
judgment of the Court of Appeal in HKSAR v Tsiang On Yan 20 . After
P reviewing the authorities for possession of a firearm and ammunition P
without a licence the Court of Appeal concluded that it was clear that for a
Q Q
person in possession of a firearm with loaded ammunition or a firearm with
R R
S 17 S
CAAR 6/2012 at §44.
18
[2012] 3 HKLRD 652 at §38.
T T
19
See §18 of the written mitigation.
20
[2019] 5 HKLRD 100.
U U
V V
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A A
ammunition capable of immediate use, a starting point of 12 years’
B B
imprisonment would be appropriate21.
C C
36. The court referring to HKSAR v Chan Chi Fun noted that an
D D
allegation that a defendant used or intended to use a firearm for an illegal
E purpose, may lead the defendant to being charged with a more serious E
offence 22 . The court went on to say that the guideline of 12 years’
F F
imprisonment was where the offender is in possession of a firearm together
G with ammunition which is “but a step away from its use” 23. G
H 37. I accept the submission that the defendant only possessed the H
firearms for his own appreciation and that he had never used them. I accept
I I
by reason of the fact all the firearms were in password locked boxes that
J the potential risk the arms would be used for illegal purpose was low. J
K K
38. The photographs submitted to court show that the defendant’s
L office was also searched 24 . The search of the defendant’s office is not L
included in the amended summary of facts. On the court asking what was
M M
shown in photographs 7 and 8, Book 3, Mr Chen replied magazines. Asked
N why this was not included in the summary of facts Mr Chen replied “We N
just missed it”. Mr Chen also mentioned the magazines had not been
O O
examined.
P P
39. In my view the fact gun parts were found in the defendant’s
Q Q
office is an important fact in determining the potential risk posed by the
R defendant’s possession of the firearms. The explanation for the omission R
S 21 S
See §§38-45 of the judgment.
22
See §§47 & 50 of the judgment.
T T
23
See §51 of the judgment.
24
See Book No. 3 of 6.
U U
V V
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A A
of this fact from the summary of facts, “We just missed it” is unsatisfactory,
B B
in particular considering the prosecution were given the opportunity to
C revise the summary of facts the court not being satisfied the summary of C
facts were sufficiently clear and precise as they should have been in order
D D
to explain the plea of guilty and to assist the court.
E E
40. The consequence of this failure is that the court must, as
F F
submitted by Mr Fu, disregard this fact there being no mention made of this
G in the amended summary of facts. I do note, however, that on the day of G
arrest the defendant transported gun parts by public transport to and from
H H
his office.
I I
41. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
J said that possession as a hobby with no risks of the firearms or J
ammunitions being used for any illegal purpose or posing any threat to the
K K
public would bring the case to the lower end of the scale and that where the
L L
arms and ammunition had not been used and were not intended to be used
M
by the offender for any crime, a starting point as high as 6 years was M
appropriate, depending on the nature of the arms and ammunition and the
N N
circumstances in which the offence was committed25.
O O
42. In determining the appropriate starting point I have looked at
P cases where the firearms and ammunition were found in the residence of P
the defendant.
Q Q
R 43. In R v Szeto Chi Keung the applicant possessed five anti-riot R
pistols of Chinese origin and twenty-five shot cartridges suitable to be used
S S
T T
25
CAAR 6/2012 at §§43 & 45.
U U
V V
- 11 -
A A
with the pistols26. The pistols, which were not kept in a secure way, were
B B
found in different places in the applicant’s home. It was accepted that the
C pistols were not intended to be used in any criminal enterprise. The Court C
of Appeal were satisfied that there was an extreme risk for the community
D D
and held that a 7 year starting point was appropriate.
E E
44. In HKSAR v Chan Chi Fun firearms were found in the
F F
applicant’s home27. Some of the firearms were stored in safe places such as
G a safety box, some were dismantled; none had been loaded and none had G
been used. By handling the firearms properly and carefully the applicant
H H
had substantially reduced the potential risk posed by the firearms. The
I Court of Appeal held that the appropriate starting point was 6 years’ I
imprisonment.
J J
45. In Secretary for Justice v Leung Kwok Chi the police attended
K K
the respondent’s flat in response to a 999 call, the respondent claiming he
L
had accidentally shot himself. The police found a “Thompson Contender” L
M
0.22 calibre rifle on the floor of the flat with a fired cartridge case jammed M
in the chamber.
N N
46. At the time the respondent was holding an Arms and
O O
Ammunition Licence under which he was permitted to have specified items
P of arms and ammunition, including the “Thompson Contender” 0.22 calibre P
rifle, stored in his flat and at the Hong Kong Rifle Association.
Q Q
R 47. In addition, the police found arms and ammunition not covered R
under the licence, including a “Thompson Contender” firearm; eight
S S
26
CACC 719/1995.
T 27
[2006] 1 HKLRD 128. In court Mr Fu informed the court that the firearms were three pistols, one T
gun barrel, one gun rack; one rifle, one stun gun and 497 rounds of live ammunition suitable for
discharge from the seized firearms. This was agreed by Mr Chen. Also see §4 of the judgment.
U U
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- 12 -
A A
silencers; two revolvers; three air guns; one flare pistol and over 3,000
B B
rounds of ammunition.
C C
48. The arms and ammunition were placed all over the flat, the
D D
safe in the flat not being large enough to store all the unlicensed firearms
E and ammunition. The safe had been left open on the day the police E
attended the flat.
F F
49. The Court of Appeal accepted that when the offender was
G G
licensed to possess arms and ammunition which were kept in a safe place,
H but because the quantities of arms and ammunition exceeded the H
permission an offence was committed, it might well justify a more lenient
I I
sentence as the offender would be in a better position to properly keep the
J arms and ammunition as a licensed person, and the chance of them falling J
into the wrong hands would be less.
K K
L 50. The court did not however agree that just because the arms and L
ammunition were stored in the flat, the public could not have access to
M M
them, citing that the flat was accessible to friends and relatives who might
N find the arms and ammunition attractive and a trespasser, such as a burglar, N
would also find the arms and ammunition in the flat very tempting.
O O
P 51. The court was satisfied that there was a serious potential risk P
to the surrounding community held that a starting point of at least 5 years’
Q Q
imprisonment was appropriate28 .
R R
S S
T T
28
See §§53 & 54 of the judgment.
U U
V V
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A A
Sentence
B B
C
52. Mr Chen having confirmed that the bullets were not suitable C
for discharge by any of the firearms subject of the charge and having
D D
viewed the bullets, I accept the submission that the bullets were picked up29.
E E
53. Taking into account all the circumstances including that the
F defendant did not have just one firearm, he had seven, three pistols and four F
rifles together with a silencer and a lower receiver of a pistol, all of which
G G
were functional upon test fire; the defendant did not have a licence in Hong
H Kong; the defendant clearly knew that a licence was required as shown by H
the way in which he imported the firearms in parts variously declared as car
I I
parts, toys and shoes; the amount of ammunition was very small and not
J suitable for discharge in the firearms subject of the charge; and although J
the firearms and ammunition were contained in password locked boxes I
K K
note on the day of arrest the defendant transported gun parts by public
L
transport to and from his office, I am satisfied a starting point of 5 years’ L
M
imprisonment is appropriate. M
N 54. Giving the defendant full credit for his plea of guilty reduces N
the sentence to 3 years and 4 months’ imprisonment.
O O
P Delay P
Q 55. Where there has been unreasonable delay in bringing an Q
offender to justice this is a mitigating factor which may be taken into
R R
account in sentence. All the circumstances must be looked at including
S whether the offender has acknowledged guilt; where the delay has given S
the offender the opportunity to rehabilitate himself; whether restitution has
T T
29
See the defendant’s further mitigation.
U U
V V
- 14 -
A A
been made; whether there was a legitimate expectation the matter will not
B B
be further pursued; the size of the investigation and whether the time taken
C to bring the case to court was longer than necessary30. C
D D
56. The defendant was arrested on 18 July 2018 and first appeared
E in court on 9 January 2020, almost eighteen months later. Mr Chen E
informs the court the case file was sent for legal advice on 21 August 2019.
F F
The investigation therefore took thirteen months to complete. Mr Chen
G explains this was due to the large number of exhibits seized. G
H 57. Clearly time was required to complete the investigation. H
Eighteen months does appear however to be a long time. The matter has
I I
now been hanging over the defendant for just over two years. I am
J satisfied this is a factor which I can take into account in passing sentence J
and reduce the sentence by 2 months to 3 years and 2 months’
K K
31
imprisonment .
L L
58. The defendant is convicted and sentenced to 3 years and 2
M M
months’ imprisonment.
N N
O O
P (D. J. DUFTON) P
District Judge
Q Q
R R
S S
T T
30
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
31
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
V V
A A
DCCC 363/2020
B [2020] HKDC 910 B
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D CRIMINAL CASE NO. 363 OF 2020 D
____________
E HKSAR E
v
F F
LO CHI YUEN
____________
G G
Before: HH Judge Dufton
H H
Date: 12 October 2020
Present: Mr Timothy Chen, PP, of the Department of Justice,
I for HKSAR I
Mr Fu Yu Hong of Sam Fu & Co, for the defendant
J Offence: Possession of arms and ammunition without a licence J
(無牌管有槍械及彈藥)
K K
REASONS FOR SENTENCE
L L
M
1. The defendant pleads guilty to one charge of possession of M
arms and ammunition without a licence, contrary to section 13 of the
N N
Firearms and Ammunition Ordinance 1 . The maximum sentence on
O conviction on indictment is a fine at level 6 ($100,000) and imprisonment O
for 14 years.
P P
2. The arms and ammunition in question are one silencer; one
Q Q
lower receiver of a pistol; two self-loading pistols with magazine; one self-
R loading pistol; one self-loading rifle with magazine; three self-loading rifles R
and six rounds of ammunition.
S S
T T
1
Cap 238.
U U
V V
-2-
A A
3. Full particulars of the offence are set out in the amended
B B
summary of facts admitted by the defendant today2.
C C
4. In summary at 11:09 a.m. on 17 July 2018 a Customs &
D D
Excise officer responsible for customs clearance at the Hong Kong
E International Airport discovered a suspected gun barrel in a carton box E
which had been imported by mail from the USA to Shop Easy Logistic Ltd,
F F
a logistic company in Mongkok. The contents of the carton box were
G declared as “wearing apparel/shoes/toys”. G
H 5. The case was reported to the police. Preliminary examination H
by a Forensic Firearm Examiner confirmed the carton box contained a
I I
suspected gun barrel.
J J
6. The same day the police went to the office of Shop Easy.
K K
Record check revealed that the defendant was the consignee of the carton
L box; that between September 2015 and July 2018 the defendant received L
various goods declared as car components, tools, books, shoes, toys, lights
M M
and lotion and that four parcels declared as car parts and lights were
N awaiting collection. N
O O
7. Preliminary examination by a Forensic Firearm Examiner
P found the four parcels to contain suspected trigger parts, pistol barrel and P
pistol slide.
Q Q
8. The next day at 1:25 p.m. the defendant attended Shop Easy
R R
3
and collected the four parcels .
S S
2
The defendant first appeared for plea and sentence on 18 September 2020. The court not being
T satisfied the summary of facts were sufficiently clear and precise as they should have been in order T
to explain the plea of guilty and to assist the court, the case was adjourned for the prosecution to
amend the summary of facts.
U U
V V
-3-
A A
9. The police put the defendant under observation. The
B B
defendant took the MTR to his office in San Po Kong where he stayed until
C 7:20 p.m. when he left to go to the Tuen Mun Hospital by bus still carrying C
the four parcels.
D D
E 10. After visiting the hospital, the defendant took the light rail to E
his home in Hung Shui Kiu. At 9:14 p.m. the police arrested the defendant
F F
outside his home and seized the four parcels.
G G
11. On a search of the defendant’s home the police found in the
H defendant’s study room various gun parts and firearm components; a H
silencer; a lower receiver of a pistol and six rounds of ammunition, which
I I
were all stored in password locked boxes.
J J
12. Forensic examination confirmed that the various gun parts and
K K
firearm components could be assembled into seven genuine firearms: three
L pistols and four rifles as particularised in the charge, all of which were L
functional upon test fire. The cartridge of one pistol and four cartridges of
M M
one rifle each contained a bullet. Mr Chen confirmed in court that these
N bullets were dummy bullets. N
O O
13. Five of the six rounds of ammunition were live bullets suitable
P for discharge from firearms such as AR-10 and AR-15 rifles. The sixth P
round of ammunition was a blank. Mr Chen confirmed in court that all six
Q Q
rounds of ammunition were not suitable for discharge from any of the
R seven firearms subject of the charge. R
S S
T T
3
Mr Chen confirmed in court that the defendant did not collect the carton box containing the
suspected gun barrel.
U U
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A A
14. The Forensic Firearms Examiner’s report has been submitted
B B
to court together with photographs of all the arms and ammunition seized 4.
C C
15. In video recorded interviews, the defendant said, inter alia, that
D D
he was a war game enthusiast; he kept the guns for around four years for
E personal collection purposes; he had no firearm licence in Hong Kong only E
in Thailand where he had received training; he bought the various parts and
F F
components from various US websites and had them delivered to an
G address in the US provided by Shop Easy who would then mail them to G
Hong Kong; the items were declared as “DIY tools” for customs clearance
H H
purposes; the firearms, ammunition and components were stored in
I password-locked boxes inside his bedroom and he was the only one who I
knew the passwords; he used dummy bullets to test whether his guns could
J J
fire; he never used genuine bullets or ammunition and that he picked up
K bullets and cartridge cases while hiking near a training range at Ha Pak Nai. K
L L
16. On 1 August 2018 Shop Easy received seven more parcels
M
declared as lotion, toy or car parts. On 14 August 2018 Shop Easy received M
a further four parcels declared as car parts. The police seized the parcels
N N
and unpacked them in the presence of the defendant. All the parcels
O
contained suspected gun parts. O
P 17. Except for the silencer and the lower receiver of a pistol, the P
charge relates only to the gun parts and firearm components which were
Q Q
found in the defendant’s study room and could be assembled into genuine
R firearms. The remaining gun parts and firearm components including the R
suspected gun barrel found in the carton box on 17 July 2018; the suspected
S S
gun parts found in the four parcels collected by the defendant on 18 July
T T
4
A total of six books of photographs were submitted to court.
U U
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A A
2018 and the gun parts in the parcels seized by the police on 1 August and
B B
14 August 2018 are not the subject of the charge.
C C
Mitigation
D D
18. In passing sentence, I have carefully considered the oral and
E E
written submissions of Mr Fu, including that the defendant, aged 42, is
F married with two twin boys, aged 9 and has worked for Forever Health F
Medical Instrument Limited since 20005.
G G
H 19. I have read the mitigation letter written by the defendant’s H
wife who describes her husband as a kind hearted and reliable person and
I I
how he helps the patients he meets through his work 6.
J J
20. Mr Fu has summarised the letters written by the two boys who
K ask for a lenient sentence for their father7. K
L L
21. Mr Fu has also summarised the mitigation letter written by the
M defendant’s mother in which she asks for a lenient sentence 8 . Medical M
reports of the defendant’s mother have also been submitted9.
N N
O
22. I have read the mitigation letter written by Mr Nelson Wong, O
the Executive Director of Forever Health Medical Instrument Limited. Mr
P P
Wong describes how the defendant first started working for the company as
Q a fresh graduate to how he has become a very important member who has Q
R R
5
See §§3 & 4 of the written mitigation.
6
Item 3, Part B, 2nd Mitigation Bundle. The defendant’s wife has also written a mitigation letter in
S S
Chinese: Item 21, Mitigation Bundle.
7
Items 19 & 20, Mitigation Bundle.
T T
8
Item 12, Mitigation Bundle.
9
Item 13, Mitigation Bundle.
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A A
contributed to the growth of the company and is now the team leader of the
B B
Respiratory Unit. Mr Wong regards the defendant as someone who cannot
C be replaced. C
D D
23. Mr Wong is particularly impressed with the way the defendant
E cares for patients with disabilities and how he has given up his own free E
time to visit children, who can only breath through the help of a ventilator,
F F
to observe how they use the ventilators and to help their parents.
G G
24. Mr Wong regards the defendant very highly indeed and looks
H forward to the day he will once again be representing his company. In the H
meantime Mr Wong promises not only to reserve the defendant’s position
I I
in the company but also to maintain all his benefits until he returns to
J work10. J
K K
25. I also take into account the thank you cards from the Tuen
L Mun Hospital; a customer of the company and the Jockey Club New Page L
Inn, all showing their appreciation of the defendant’s work11. Mr Fu has
M M
also summarised the letters written by friends and colleagues, all asking for
N a lenient sentence12. N
O O
26. Mr Fu explains that the defendant is a war game enthusiast
P who purchased the firearms on the internet for his own appreciation and P
enjoyment; the defendant had received training in the use of firearms in
Q Q
R R
S S
10
Item 2, Part B, 2nd Mitigation Bundle. Mr Wong has also written a mitigation letter in Chinese:
Item 18, Mitigation Bundle.
T T
11
Items 8, 9 & 10, Mitigation Bundle.
12
Items 15,16 & 17, Mitigation Bundle.
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A A
Thailand where he had obtained a firearm licence and that the defendant
B B
had never used the firearms13.
C C
27. I have read the defendant’s mitigation letter in which he
D D
explains that since his first contact with firearms shooting in Thailand in
E 2016 he has participated in various competitions and technical exchanges E
during which he has met many law enforcement officers and members of
F F
the army. Using his knowledge of mechanical operations, he obtained
G various gun parts for research purposes to help his friends from local law G
enforcement agencies in Thailand solve their technical questions 14. The
H H
defendant asks for a light sentence so he may continue to serve chronically
I ill patients and take care of his family. I
J 28. I take into account that the defendant has no previous J
convictions.
K K
L Discussion L
M M
29. Mr Fu has referred the court to a number of authorities and
N
sentencing cases in the District Court and submits that the starting point to N
15
be adopted is likely to be 40 months imprisonment . I have considered the
O O
cases submitted by Mr Fu.
P P
16
30. What is clear is that deterrent sentences are required .
Q Q
13
See §§7 & 8 of the written mitigation. and Item 11, Mitigation Bundle.
R R
14
Item 4, Part B, 2nd Mitigation Bundle. The defendant has also written a mitigation letter in Chinese:
Item 14, Mitigation Bundle.
S 15 S
See §§10-19 of the written mitigation. Mr Fu referred the court to HKSAR v Chan Chi Fun [2006] 1
HKLRD 128; HKSAR v Wong Chun Yim CACC 185/2007; Secretary for Justice v Yan Shen CAAR
T 10/2011; Secretary for Justice v Leung Kwok Chi CAAR 6/2012 and two sentencing cases HKSAR v T
Fung Fuk Cheung DCCC 348/2016 and HKSAR v Royster William Edward DCCC 142/2020.
16
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
U U
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-8-
A A
31. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
B B
recognising that there are varying degrees of culpability said only by
C adopting a stringent approach to the unlicensed possession of arms and C
ammunition the court can ensure Hong Kong continues to be a safe city17.
D D
E 32. Similarly in Secretary for Justice v Yan Shen the Court of E
Appeal said one of the reasons Hong Kong is a safe city is the strict gun
F F
control laws18.
G G
33. A review of the case law shows that a distinction has been
H drawn between cases where there was an intention to use the firearm for H
unlawful purpose and cases of “simple possession” where there was no
I I
such intention.
J J
34. Mr Fu refers the court to the judgment in HKSAR v Chan Chi
K K
Fun where the court emphasised that the level of sentence depends on the
L court’s assessment of the potential risk posed by the arms and ammunition L
in the defendant’s possession, taking into account the circumstances and
M M
the defendant’s background 19.
N N
35. This distinction was the subject of discussion in the recent
O O
judgment of the Court of Appeal in HKSAR v Tsiang On Yan 20 . After
P reviewing the authorities for possession of a firearm and ammunition P
without a licence the Court of Appeal concluded that it was clear that for a
Q Q
person in possession of a firearm with loaded ammunition or a firearm with
R R
S 17 S
CAAR 6/2012 at §44.
18
[2012] 3 HKLRD 652 at §38.
T T
19
See §18 of the written mitigation.
20
[2019] 5 HKLRD 100.
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A A
ammunition capable of immediate use, a starting point of 12 years’
B B
imprisonment would be appropriate21.
C C
36. The court referring to HKSAR v Chan Chi Fun noted that an
D D
allegation that a defendant used or intended to use a firearm for an illegal
E purpose, may lead the defendant to being charged with a more serious E
offence 22 . The court went on to say that the guideline of 12 years’
F F
imprisonment was where the offender is in possession of a firearm together
G with ammunition which is “but a step away from its use” 23. G
H 37. I accept the submission that the defendant only possessed the H
firearms for his own appreciation and that he had never used them. I accept
I I
by reason of the fact all the firearms were in password locked boxes that
J the potential risk the arms would be used for illegal purpose was low. J
K K
38. The photographs submitted to court show that the defendant’s
L office was also searched 24 . The search of the defendant’s office is not L
included in the amended summary of facts. On the court asking what was
M M
shown in photographs 7 and 8, Book 3, Mr Chen replied magazines. Asked
N why this was not included in the summary of facts Mr Chen replied “We N
just missed it”. Mr Chen also mentioned the magazines had not been
O O
examined.
P P
39. In my view the fact gun parts were found in the defendant’s
Q Q
office is an important fact in determining the potential risk posed by the
R defendant’s possession of the firearms. The explanation for the omission R
S 21 S
See §§38-45 of the judgment.
22
See §§47 & 50 of the judgment.
T T
23
See §51 of the judgment.
24
See Book No. 3 of 6.
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A A
of this fact from the summary of facts, “We just missed it” is unsatisfactory,
B B
in particular considering the prosecution were given the opportunity to
C revise the summary of facts the court not being satisfied the summary of C
facts were sufficiently clear and precise as they should have been in order
D D
to explain the plea of guilty and to assist the court.
E E
40. The consequence of this failure is that the court must, as
F F
submitted by Mr Fu, disregard this fact there being no mention made of this
G in the amended summary of facts. I do note, however, that on the day of G
arrest the defendant transported gun parts by public transport to and from
H H
his office.
I I
41. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
J said that possession as a hobby with no risks of the firearms or J
ammunitions being used for any illegal purpose or posing any threat to the
K K
public would bring the case to the lower end of the scale and that where the
L L
arms and ammunition had not been used and were not intended to be used
M
by the offender for any crime, a starting point as high as 6 years was M
appropriate, depending on the nature of the arms and ammunition and the
N N
circumstances in which the offence was committed25.
O O
42. In determining the appropriate starting point I have looked at
P cases where the firearms and ammunition were found in the residence of P
the defendant.
Q Q
R 43. In R v Szeto Chi Keung the applicant possessed five anti-riot R
pistols of Chinese origin and twenty-five shot cartridges suitable to be used
S S
T T
25
CAAR 6/2012 at §§43 & 45.
U U
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A A
with the pistols26. The pistols, which were not kept in a secure way, were
B B
found in different places in the applicant’s home. It was accepted that the
C pistols were not intended to be used in any criminal enterprise. The Court C
of Appeal were satisfied that there was an extreme risk for the community
D D
and held that a 7 year starting point was appropriate.
E E
44. In HKSAR v Chan Chi Fun firearms were found in the
F F
applicant’s home27. Some of the firearms were stored in safe places such as
G a safety box, some were dismantled; none had been loaded and none had G
been used. By handling the firearms properly and carefully the applicant
H H
had substantially reduced the potential risk posed by the firearms. The
I Court of Appeal held that the appropriate starting point was 6 years’ I
imprisonment.
J J
45. In Secretary for Justice v Leung Kwok Chi the police attended
K K
the respondent’s flat in response to a 999 call, the respondent claiming he
L
had accidentally shot himself. The police found a “Thompson Contender” L
M
0.22 calibre rifle on the floor of the flat with a fired cartridge case jammed M
in the chamber.
N N
46. At the time the respondent was holding an Arms and
O O
Ammunition Licence under which he was permitted to have specified items
P of arms and ammunition, including the “Thompson Contender” 0.22 calibre P
rifle, stored in his flat and at the Hong Kong Rifle Association.
Q Q
R 47. In addition, the police found arms and ammunition not covered R
under the licence, including a “Thompson Contender” firearm; eight
S S
26
CACC 719/1995.
T 27
[2006] 1 HKLRD 128. In court Mr Fu informed the court that the firearms were three pistols, one T
gun barrel, one gun rack; one rifle, one stun gun and 497 rounds of live ammunition suitable for
discharge from the seized firearms. This was agreed by Mr Chen. Also see §4 of the judgment.
U U
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A A
silencers; two revolvers; three air guns; one flare pistol and over 3,000
B B
rounds of ammunition.
C C
48. The arms and ammunition were placed all over the flat, the
D D
safe in the flat not being large enough to store all the unlicensed firearms
E and ammunition. The safe had been left open on the day the police E
attended the flat.
F F
49. The Court of Appeal accepted that when the offender was
G G
licensed to possess arms and ammunition which were kept in a safe place,
H but because the quantities of arms and ammunition exceeded the H
permission an offence was committed, it might well justify a more lenient
I I
sentence as the offender would be in a better position to properly keep the
J arms and ammunition as a licensed person, and the chance of them falling J
into the wrong hands would be less.
K K
L 50. The court did not however agree that just because the arms and L
ammunition were stored in the flat, the public could not have access to
M M
them, citing that the flat was accessible to friends and relatives who might
N find the arms and ammunition attractive and a trespasser, such as a burglar, N
would also find the arms and ammunition in the flat very tempting.
O O
P 51. The court was satisfied that there was a serious potential risk P
to the surrounding community held that a starting point of at least 5 years’
Q Q
imprisonment was appropriate28 .
R R
S S
T T
28
See §§53 & 54 of the judgment.
U U
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A A
Sentence
B B
C
52. Mr Chen having confirmed that the bullets were not suitable C
for discharge by any of the firearms subject of the charge and having
D D
viewed the bullets, I accept the submission that the bullets were picked up29.
E E
53. Taking into account all the circumstances including that the
F defendant did not have just one firearm, he had seven, three pistols and four F
rifles together with a silencer and a lower receiver of a pistol, all of which
G G
were functional upon test fire; the defendant did not have a licence in Hong
H Kong; the defendant clearly knew that a licence was required as shown by H
the way in which he imported the firearms in parts variously declared as car
I I
parts, toys and shoes; the amount of ammunition was very small and not
J suitable for discharge in the firearms subject of the charge; and although J
the firearms and ammunition were contained in password locked boxes I
K K
note on the day of arrest the defendant transported gun parts by public
L
transport to and from his office, I am satisfied a starting point of 5 years’ L
M
imprisonment is appropriate. M
N 54. Giving the defendant full credit for his plea of guilty reduces N
the sentence to 3 years and 4 months’ imprisonment.
O O
P Delay P
Q 55. Where there has been unreasonable delay in bringing an Q
offender to justice this is a mitigating factor which may be taken into
R R
account in sentence. All the circumstances must be looked at including
S whether the offender has acknowledged guilt; where the delay has given S
the offender the opportunity to rehabilitate himself; whether restitution has
T T
29
See the defendant’s further mitigation.
U U
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A A
been made; whether there was a legitimate expectation the matter will not
B B
be further pursued; the size of the investigation and whether the time taken
C to bring the case to court was longer than necessary30. C
D D
56. The defendant was arrested on 18 July 2018 and first appeared
E in court on 9 January 2020, almost eighteen months later. Mr Chen E
informs the court the case file was sent for legal advice on 21 August 2019.
F F
The investigation therefore took thirteen months to complete. Mr Chen
G explains this was due to the large number of exhibits seized. G
H 57. Clearly time was required to complete the investigation. H
Eighteen months does appear however to be a long time. The matter has
I I
now been hanging over the defendant for just over two years. I am
J satisfied this is a factor which I can take into account in passing sentence J
and reduce the sentence by 2 months to 3 years and 2 months’
K K
31
imprisonment .
L L
58. The defendant is convicted and sentenced to 3 years and 2
M M
months’ imprisonment.
N N
O O
P (D. J. DUFTON) P
District Judge
Q Q
R R
S S
T T
30
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
31
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
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