由此
A A
B DCCC 1077/2020 B
[2021] HKDC 739
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 1077 OF 2020 E
F ____________ F
G HKSAR G
H v H
I
CHAN Kin-tat I
____________
J J
K Before : H.H. Judge G. Lam K
Date : 17 June 2021
L
Present : Mr. Andy Lo, SPP, of the Department of Justice, L
for HKSAR.
Ms. Olivia Tsang instructed by M/s To, Lam &
M M
Co., for the defendant.
Offences : (1) Possession of arms and ammunition without
N a licence（無牌管有槍械及彈藥） N
(2) Possession of explosive substances（管有爆
O O
炸品）
(3) Possession of a prohibited weapon（管有違
P P
禁武器）
Q Q
R
REASONS FOR SENTENCE R
S S
T T
U U
V V
由此
- 2 -
A A
The defendant pleaded guilty to a charge of "Possession of
B B
arms and ammunition without a licence" (Charge 1); a charge of
C C
"Possession of explosive substances" (Charge 2); and a charge of
D D
"Possession of a prohibited weapon" (Charge 3).
E E
F F
Summary of Facts
G G
2. On 24 January 2020, police officers searched the defendant's
H H
home in Jordon, Kowloon (the address of which is particularized in the
I I
charges) pursuant to a search warrant.
J J
K K
3. A violin case was found in the defendant's bedroom. It
L contained an assortment of items including :- L
M M
In relation to Charge 1
N N
(i) 1 NICO brand flare launcher with 2 loaders, each loaded with 6
O rounds of flare ammunition; O
P (ii) 1 ERMA brand flare launcher; and P
Q Q
(iii) 26 rounds of flare ammunition (for the ERMA flare launcher);
R R
In relation to Charge 2
S S
3 explosive cartridges (commonly known as "Boulder Buster Rimfire").
T T
U U
V V
由此
- 3 -
A A
4. A "push dagger" was found in a plastic bag containing various
B B
types of knives placed on top of a bookshelf in the reading room. This is
C C
Charge 3.
D D
E E
5. Under caution, the defendant stated, inter alia, that he is a
F F
retired technician. He bought the seized items when he was serving in the
G Royal Hong Kong Regiment (The Volunteers). G
H H
I 6. A Bomb Disposal Officer of the Police Force examined the I
J
seized items in relation to Charges 1 and 2. He confirmed that both the J
NICO and ERMA flare launchers are "arms" under the Firearms and
K K
Ammunition Ordinance (Cap.238) and the total of 38 flare rounds are
L L
"ammunition" under Cap.238. He also confirmed that the 3 explosive
M M
cartridges are manufactured for breaking/demolishing rocks, boulders,
N N
concrete structures and mining. They are intact, live/active and have never
O O
been used. They are "explosive substances" under section 52 of the Crimes
P P
Ordinance (Cap.200).
Q Q
R 7. A police weapons training specialist examined the push dagger R
S
and confirmed that it is a prohibited weapon. It is "a blade or pointed S
weapon designed to be used in a fashion whereby the handle is held in a
T T
U U
V V
由此
- 4 -
A A
clenched fist and the blade or point protrudes between the fingers of the fist".
B B
The push dagger has a sharp pointy blade (40 mm in length) with a "T"
C C
shape handle.
D D
E E
8. Regarding Charges 1 and 2, the Marine Department confirmed
F F
that a vessel operator certificate does not enable the holder to possess any
G signal flare or launcher; or in any event possess them on land. The Mines G
H Division of the Civil Engineering and Development Department confirmed H
I that the defendant has never held any licence for lawful possession of any of I
J
the arms, ammunition or explosive substances found in his residence; and J
that his residence was not a licensed premises for storage of such items.
K K
L L
9. The defendant had unlawfully in his possession or custody or
M M
under his control of the arms, ammunition, explosive substances and
N N
prohibited weapon particularized in Charges 1 to 3.
O O
P P
Mitigation & Sentence
Q Q
10. The defendant is 73 and has a clear record. He is married with
R R
3 middle-aged children. He and his wife have been living in the same flat in
S S
Jordan since 1976. It is a self-owned property.
T T
U U
V V
由此
- 5 -
A A
11. In mitigation, defence counsel Ms. Tsang outlined the
B B
defendant's personal background. He worked in a printer manufacturing
C C
company from the 80s to the 90s, and retired in 1997. He served in the
D D
Royal Hong Kong Regiment (The Volunteers) from 1978 to 1995. He held
E E
a Certificate of Competency (Engineer) Hong Kong issued by the Marine
F F
Department under the Merchant Shipping Ordinance (Cap.281) from 1973
G to the 90s. He was qualified to maintain the engines of pleasure vessels. In G
H a nutshell, the defendant has been an upstanding citizen for his entire life. H
I I
J
12. Regarding Charge 1, Ms. Tsang submitted that the defendant J
had lawful possession of the 2 flare launchers and 38 flare rounds when he
K K
and a friend co-owned a yacht in the early 80s. Possession of those items
L L
were lawful then, if kept on a vessel. When the yacht was sold in the 90s,
M M
the defendant had to clean up the boat; he mindlessly brought those items
N N
home in a plastic bag1. Ms. Tsang explained that the bag of flare launchers
O O
and flare rounds has been buried in the defendant's junk at home all these
P P
years. The defendant has completely overlooked their existence until they
Q were dug out by the Police. Q
R R
S S
T T
1
See Photos 26 and 27.
U U
V V
由此
- 6 -
A A
13. Regarding Charge 2, Ms. Tsang submitted that the 3 rock
B B
blasting cartridges were also kept on the defendant's yacht. They were
C C
meant to be used on a line throwing apparatus for propelling a line across to
D D
shore or another vessel for mooring, towing or rescue purposes. Similarly,
E E
the defendant took them home when he cleaned up his yacht. They were
F F
stashed away amongst the defendant's junk for decades.
G G
H 14. Regarding Charge 3, Ms. Tsang submitted that the push dagger H
I was purchased by the defendant as a souvenir when he was travelling with I
J
his wife in Germany. It has been kept in a recycle bag placed safely on top J
of a bookshelf in the reading room of the defendant's flat2. He has never
K K
used push dagger or taken it out of his home.
L L
M M
15. I accept that the defendant had lawful possession of the flare
N N
launchers and flare rounds when they were kept on his yacht. In respect of
O O
the 3 cartridges, the prosecution took issue with Ms. Tsang's submission.
P P
Upon clarification by the prosecution, the Bomb Disposal Officer
Q maintained that they were manufactured for rock blasting purposes and Q
R would not be used on a line throwing apparatus. In my view, if the R
S
defendant's assertion about the history of these 3 cartridges is true, one S
T T
2
See Photos 32 to 34.
U U
V V
由此
- 7 -
A A
would expect a line throwing apparatus be found in his home as well. In the
B B
absence of such a device, I have no basis to doubt the Bomb Disposal
C C
Officer's opinion.
D D
E E
16. I have asked Ms. Tsang if it was appropriate for her to explain
F F
why the defendant's home was searched. She respectfully invited this court
G to focus on the reasons why the defendant possessed the items in question G
H rather than why his flat was searched. I agree. I will not speculate on this H
I matter or draw any adverse inference against him because his flat was I
J
searched. I have reminded myself that the defendant is a man of good J
character and has made meaningful contribution to the security and safety of
K K
Hong Kong. I am also aware that he was kept in jail custody from the day of
L L
his arrest on 24 January 2020 to 17 June 2020, when bail was granted.
M M
N N
17. In relation to Charges 1 and 2, I have borne in mind the
O O
sentencing principles laid down by the Court of Appeal in HKSAR v Chan
P P
Chi Fun [2006] 1 HKLRD 128 (Chinese judgment). Having considered the
Q overall circumstances of this case and the defendant's impeccable Q
R background, I find the potential risk posed by the flare launchers and flare R
S
rounds fairly low. Based on common sense, they are not as lethal as real S
T T
U U
V V
由此
- 8 -
A A
pistols and bullets. I also accept that the defendant had no intention to use
B B
them; they were just sitting idle at a corner in his home and being neglected.
C C
D D
18. On the other hand, the 3 cartridges cause me some concern. I
E E
do not know why the defendant claimed that they were to be used on a line
F F
throwing device. In any event, based on the Summary of Facts 3 and the
G additional expert report of the Bomb Disposal Officer 4, a cartridge is just a G
H part of a rock blasting equipment set; it is difficult to create an explosion by H
I using a cartridge alone. On this basis, I consider the potential risk posed by I
J
these 3 cartridges also fairly low. Similar to the flare launchers and flare J
rounds, they were just sitting idle at a corner in the defendant's home. He
K K
had no intention to use them either.
L L
M M
19. Notwithstanding the lack of evidence suggesting any
N N
connection of these items with criminal or unlawful activities, mere
O O
possession of arms, ammunition and explosives are nevertheless serious
P P
matters. An immediate custodial sentence is almost inevitable. The court
Q must send a clear message to the general public that they should stay away Q
R from these objects. R
S S
3
Ms. Tsang has also placed before me a copy of the expert report of the Bomb Disposal Officer
T dated 7 October 2020. T
4
Dated 10 June 2021.
U U
V V
由此
- 9 -
A A
20. For Charge 1, the maximum penalty is a level 6 fine ($100,000)
B B
and imprisonment for 14 years; and for Charge 2, imprisonment for 14
C C
years. Based on the reasons stated above, I adopt a starting point of 12
D D
months' imprisonment for each charge. With the timely guilty plea, the
E E
sentence is reduced to 8 months each. I will grant a further discount of 1
F F
month to reflect the defendant's age and service to the community. I
G sentence him to 7 months' imprisonment for each charge. G
H H
I 21. In Charge 3, the push dagger was stashed away on top of a I
J
bookshelf. The defendant obviously has a collection of utility knives, J
probably owing to his paramilitary background. I accept that the push
K K
dagger is no more than a collector's item and that the defendant had no
L L
intention to use it. The maximum penalty for this offence is a level 3 fine
M M
5
($10,000) and imprisonment for 3 years. I will impose a fine of $6,000 .
N N
O O
P P
Q Q
R R
S S
T T
5
見香港特別行政區 訴 盧旻駿 HCMA 718/2012 及 HKSAR v Wu Kim Wan HCMA 1141/2001。
U U
V V
由此
- 10 -
A A
22. Taking into account of the totality principle, I order the
B B
sentences of Charges 1 and 2 to run concurrently, arriving a total prison term
C C
of 7 months.
D D
E E
F
(G. Lam) F
District Judge
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
V V
由此
A A
B DCCC 1077/2020 B
[2021] HKDC 739
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO. 1077 OF 2020 E
F ____________ F
G HKSAR G
H v H
I
CHAN Kin-tat I
____________
J J
K Before : H.H. Judge G. Lam K
Date : 17 June 2021
L
Present : Mr. Andy Lo, SPP, of the Department of Justice, L
for HKSAR.
Ms. Olivia Tsang instructed by M/s To, Lam &
M M
Co., for the defendant.
Offences : (1) Possession of arms and ammunition without
N a licence（無牌管有槍械及彈藥） N
(2) Possession of explosive substances（管有爆
O O
炸品）
(3) Possession of a prohibited weapon（管有違
P P
禁武器）
Q Q
R
REASONS FOR SENTENCE R
S S
T T
U U
V V
由此
- 2 -
A A
The defendant pleaded guilty to a charge of "Possession of
B B
arms and ammunition without a licence" (Charge 1); a charge of
C C
"Possession of explosive substances" (Charge 2); and a charge of
D D
"Possession of a prohibited weapon" (Charge 3).
E E
F F
Summary of Facts
G G
2. On 24 January 2020, police officers searched the defendant's
H H
home in Jordon, Kowloon (the address of which is particularized in the
I I
charges) pursuant to a search warrant.
J J
K K
3. A violin case was found in the defendant's bedroom. It
L contained an assortment of items including :- L
M M
In relation to Charge 1
N N
(i) 1 NICO brand flare launcher with 2 loaders, each loaded with 6
O rounds of flare ammunition; O
P (ii) 1 ERMA brand flare launcher; and P
Q Q
(iii) 26 rounds of flare ammunition (for the ERMA flare launcher);
R R
In relation to Charge 2
S S
3 explosive cartridges (commonly known as "Boulder Buster Rimfire").
T T
U U
V V
由此
- 3 -
A A
4. A "push dagger" was found in a plastic bag containing various
B B
types of knives placed on top of a bookshelf in the reading room. This is
C C
Charge 3.
D D
E E
5. Under caution, the defendant stated, inter alia, that he is a
F F
retired technician. He bought the seized items when he was serving in the
G Royal Hong Kong Regiment (The Volunteers). G
H H
I 6. A Bomb Disposal Officer of the Police Force examined the I
J
seized items in relation to Charges 1 and 2. He confirmed that both the J
NICO and ERMA flare launchers are "arms" under the Firearms and
K K
Ammunition Ordinance (Cap.238) and the total of 38 flare rounds are
L L
"ammunition" under Cap.238. He also confirmed that the 3 explosive
M M
cartridges are manufactured for breaking/demolishing rocks, boulders,
N N
concrete structures and mining. They are intact, live/active and have never
O O
been used. They are "explosive substances" under section 52 of the Crimes
P P
Ordinance (Cap.200).
Q Q
R 7. A police weapons training specialist examined the push dagger R
S
and confirmed that it is a prohibited weapon. It is "a blade or pointed S
weapon designed to be used in a fashion whereby the handle is held in a
T T
U U
V V
由此
- 4 -
A A
clenched fist and the blade or point protrudes between the fingers of the fist".
B B
The push dagger has a sharp pointy blade (40 mm in length) with a "T"
C C
shape handle.
D D
E E
8. Regarding Charges 1 and 2, the Marine Department confirmed
F F
that a vessel operator certificate does not enable the holder to possess any
G signal flare or launcher; or in any event possess them on land. The Mines G
H Division of the Civil Engineering and Development Department confirmed H
I that the defendant has never held any licence for lawful possession of any of I
J
the arms, ammunition or explosive substances found in his residence; and J
that his residence was not a licensed premises for storage of such items.
K K
L L
9. The defendant had unlawfully in his possession or custody or
M M
under his control of the arms, ammunition, explosive substances and
N N
prohibited weapon particularized in Charges 1 to 3.
O O
P P
Mitigation & Sentence
Q Q
10. The defendant is 73 and has a clear record. He is married with
R R
3 middle-aged children. He and his wife have been living in the same flat in
S S
Jordan since 1976. It is a self-owned property.
T T
U U
V V
由此
- 5 -
A A
11. In mitigation, defence counsel Ms. Tsang outlined the
B B
defendant's personal background. He worked in a printer manufacturing
C C
company from the 80s to the 90s, and retired in 1997. He served in the
D D
Royal Hong Kong Regiment (The Volunteers) from 1978 to 1995. He held
E E
a Certificate of Competency (Engineer) Hong Kong issued by the Marine
F F
Department under the Merchant Shipping Ordinance (Cap.281) from 1973
G to the 90s. He was qualified to maintain the engines of pleasure vessels. In G
H a nutshell, the defendant has been an upstanding citizen for his entire life. H
I I
J
12. Regarding Charge 1, Ms. Tsang submitted that the defendant J
had lawful possession of the 2 flare launchers and 38 flare rounds when he
K K
and a friend co-owned a yacht in the early 80s. Possession of those items
L L
were lawful then, if kept on a vessel. When the yacht was sold in the 90s,
M M
the defendant had to clean up the boat; he mindlessly brought those items
N N
home in a plastic bag1. Ms. Tsang explained that the bag of flare launchers
O O
and flare rounds has been buried in the defendant's junk at home all these
P P
years. The defendant has completely overlooked their existence until they
Q were dug out by the Police. Q
R R
S S
T T
1
See Photos 26 and 27.
U U
V V
由此
- 6 -
A A
13. Regarding Charge 2, Ms. Tsang submitted that the 3 rock
B B
blasting cartridges were also kept on the defendant's yacht. They were
C C
meant to be used on a line throwing apparatus for propelling a line across to
D D
shore or another vessel for mooring, towing or rescue purposes. Similarly,
E E
the defendant took them home when he cleaned up his yacht. They were
F F
stashed away amongst the defendant's junk for decades.
G G
H 14. Regarding Charge 3, Ms. Tsang submitted that the push dagger H
I was purchased by the defendant as a souvenir when he was travelling with I
J
his wife in Germany. It has been kept in a recycle bag placed safely on top J
of a bookshelf in the reading room of the defendant's flat2. He has never
K K
used push dagger or taken it out of his home.
L L
M M
15. I accept that the defendant had lawful possession of the flare
N N
launchers and flare rounds when they were kept on his yacht. In respect of
O O
the 3 cartridges, the prosecution took issue with Ms. Tsang's submission.
P P
Upon clarification by the prosecution, the Bomb Disposal Officer
Q maintained that they were manufactured for rock blasting purposes and Q
R would not be used on a line throwing apparatus. In my view, if the R
S
defendant's assertion about the history of these 3 cartridges is true, one S
T T
2
See Photos 32 to 34.
U U
V V
由此
- 7 -
A A
would expect a line throwing apparatus be found in his home as well. In the
B B
absence of such a device, I have no basis to doubt the Bomb Disposal
C C
Officer's opinion.
D D
E E
16. I have asked Ms. Tsang if it was appropriate for her to explain
F F
why the defendant's home was searched. She respectfully invited this court
G to focus on the reasons why the defendant possessed the items in question G
H rather than why his flat was searched. I agree. I will not speculate on this H
I matter or draw any adverse inference against him because his flat was I
J
searched. I have reminded myself that the defendant is a man of good J
character and has made meaningful contribution to the security and safety of
K K
Hong Kong. I am also aware that he was kept in jail custody from the day of
L L
his arrest on 24 January 2020 to 17 June 2020, when bail was granted.
M M
N N
17. In relation to Charges 1 and 2, I have borne in mind the
O O
sentencing principles laid down by the Court of Appeal in HKSAR v Chan
P P
Chi Fun [2006] 1 HKLRD 128 (Chinese judgment). Having considered the
Q overall circumstances of this case and the defendant's impeccable Q
R background, I find the potential risk posed by the flare launchers and flare R
S
rounds fairly low. Based on common sense, they are not as lethal as real S
T T
U U
V V
由此
- 8 -
A A
pistols and bullets. I also accept that the defendant had no intention to use
B B
them; they were just sitting idle at a corner in his home and being neglected.
C C
D D
18. On the other hand, the 3 cartridges cause me some concern. I
E E
do not know why the defendant claimed that they were to be used on a line
F F
throwing device. In any event, based on the Summary of Facts 3 and the
G additional expert report of the Bomb Disposal Officer 4, a cartridge is just a G
H part of a rock blasting equipment set; it is difficult to create an explosion by H
I using a cartridge alone. On this basis, I consider the potential risk posed by I
J
these 3 cartridges also fairly low. Similar to the flare launchers and flare J
rounds, they were just sitting idle at a corner in the defendant's home. He
K K
had no intention to use them either.
L L
M M
19. Notwithstanding the lack of evidence suggesting any
N N
connection of these items with criminal or unlawful activities, mere
O O
possession of arms, ammunition and explosives are nevertheless serious
P P
matters. An immediate custodial sentence is almost inevitable. The court
Q must send a clear message to the general public that they should stay away Q
R from these objects. R
S S
3
Ms. Tsang has also placed before me a copy of the expert report of the Bomb Disposal Officer
T dated 7 October 2020. T
4
Dated 10 June 2021.
U U
V V
由此
- 9 -
A A
20. For Charge 1, the maximum penalty is a level 6 fine ($100,000)
B B
and imprisonment for 14 years; and for Charge 2, imprisonment for 14
C C
years. Based on the reasons stated above, I adopt a starting point of 12
D D
months' imprisonment for each charge. With the timely guilty plea, the
E E
sentence is reduced to 8 months each. I will grant a further discount of 1
F F
month to reflect the defendant's age and service to the community. I
G sentence him to 7 months' imprisonment for each charge. G
H H
I 21. In Charge 3, the push dagger was stashed away on top of a I
J
bookshelf. The defendant obviously has a collection of utility knives, J
probably owing to his paramilitary background. I accept that the push
K K
dagger is no more than a collector's item and that the defendant had no
L L
intention to use it. The maximum penalty for this offence is a level 3 fine
M M
5
($10,000) and imprisonment for 3 years. I will impose a fine of $6,000 .
N N
O O
P P
Q Q
R R
S S
T T
5
見香港特別行政區 訴 盧旻駿 HCMA 718/2012 及 HKSAR v Wu Kim Wan HCMA 1141/2001。
U U
V V
由此
- 10 -
A A
22. Taking into account of the totality principle, I order the
B B
sentences of Charges 1 and 2 to run concurrently, arriving a total prison term
C C
of 7 months.
D D
E E
F
(G. Lam) F
District Judge
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
V V