HCCC169/2021 HKSAR v. LI CHUNG MAN, ALFRED - LawHero
HCCC169/2021
高等法院（刑事）DHCJ Anna Lai, SC4/11/2021[2021] HKCFI 3499
HCCC169/2021
A HCCC 169/2021 A
[2021] HKCFI 3499
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 169 OF 2021
D ----------------- D
HKSAR
E E
v
F F
Li Chung-man, Alfred
G ------------------ G
Before: DHCJ Anna Lai, SC
H Date: 5 November 2021 at 12.09 pm H
Present: Ms Noelle Aileen Chit, SPP of the Department of
I
Justice, for HKSAR I
Mr Andrew Raffell, instructed by To, Lam & Co, for the
accused
J Offence: (1), (2) & (4) Possession of arms and ammunition J
without licence (無牌管有槍械及彈藥)
(3) Possession of an explosive substance (管有爆炸品)
K K
---------------------------------
L Transcript of the Audio Recording L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendant faces four charges involving arms and
N ammunition and an explosive. Counts 1, 2 and 4 involve the N
possession of arms and ammunition without a licence,
contrary to section 13(1) and (2) of the Firearms and
O Ammunition Ordinance, Chapter 238. Count 3 was possession O
of an explosive, contrary to section 55(1) of the Crimes
Ordinance, Chapter 200.
P P
The defendant pleaded guilty before a magistrate on
Q 9 August 2021 this year and was committed to the Court of Q
First Instance for sentence. He confirmed the plea and
admitted the facts in support of the charges before me this
R morning. R
All the offences were committed on the same day on
S S
21 February 2019. Count 1 relates to the possession of a
self-loading pistol and 30 rounds of ammunition at a shop in
T Mongkok. Count 2 relates to the possession of an air gun, T
four self-loading rifles, 12 self-loading pistols and
3,550 rounds of ammunition found at the defendant’s
U residence in Shatin. Count 3 relates to the possession of U
CRT33/5.11.2021/SC 1 HCCC 169/2021(1)/Sentence
V V
A an explosive substance, namely, six bottles of gunpowder at A
the same residence. Count 4 relates to the possession of a
self-loading pistol and 51 rounds of ammunition at the
B defendant’s workplace in San Po Kong. B
In total, there were 14 self-loading pistols, four self-
C C
loading rifles, one air gun, 3,631 rounds of ammunition and
six bottles of gunpowder.
D D
The facts which the defendant has admitted may be summarised
as follows. In respect of the 1st count, on
E 21 February 2019, the police officers conducted an operation E
at a shop in Mongkok area. At about 5.42 pm on that day,
the defendant arrived on his own with a rucksack. He was
F F
intercepted by police with the following items found in the
rucksack: firstly, one self-loading pistol in 9 mm LUGER
G caliber inserted with one magazine containing 15 rounds of G
live ammunition suitable for discharge in like caliber
pistols, all in working order; secondly, another magazine
H capable of storing 9 mm LUGER caliber ammunition containing H
15 rounds of live ammunition suitable for discharge in like
I
caliber pistols. I
Under caution at the scene, the defendant admitted his
J possession of the pistol and ammunition for self-defence. J
In a subsequent video-recorded interview, the defendant
admitted ownership of the firearms and ammunition and said
K the pistol in the rucksack was made by him, and he put these K
items in the rucksack because it was dangerous outside.
L L
The CCTV footage of the defendant’s residence and workplace
showed that he was in possession of the rucksack where the
M pistol was found at all times on the day of arrest. M
In respect of the 2nd and the 3rd counts, the defendant at
N that time lived in Shatin. His residence was searched by N
police with the following items found and seized from his
O master bedroom. There are a total of five items: the first O
item, a pre-charged pneumatic powered air gun which was
capable of discharging .25” caliber pellet with muzzle
P energy of 55.46 joules. Its detachable air tank was found P
to have been charged with pressurised gas.
Q Q
Secondly, the following four self-loading rifles, all in
working order:
R R
(a) one self-loading rifle designed to discharge 6.5 mm
Grendel caliber ammunition, with a magazine containing
S 15 rounds of ammunition and was suitable for use in S
this rifle;
T T
(b) two self-loading rifles, each with a magazine
containing 20 rounds of live ammunition in .223”
U U
CRT33/5.11.2021/SC 2 HCCC 169/2021(1)/Sentence
V V
A Remington caliber, and were suitable for use in these A
rifles;
B (c) one self-loading rifle with a magazine containing B
10 rounds of live ammunition in 6.5 mm Creedmoor
caliber, and was suitable for use in this rifle.
C C
Thirdly, the following 12 self-loading pistols, all in
D working order: D
(a) one self-loading pistol with a magazine containing
E 15 rounds of live ammunition in 9 mm LUGER caliber E
which was suitable for discharge in like caliber
pistols;
F F
(b) one self-loading pistol with a magazine containing
G seven rounds of live ammunition in 9 mm LUGER caliber G
which was suitable for discharge in like caliber
pistols;
H H
(c) two self-loading pistols, each with a magazine
I
containing 11 rounds of live ammunition in 9 mm LUGER I
caliber which were suitable for discharge in like
caliber pistols;
J J
(d) one self-loading pistol with a magazine containing
17 rounds of live ammunition in 9 mm LUGER caliber
K which were suitable for discharge in like caliber K
pistols;
L L
(e) one self-loading pistol with a magazine containing
13 rounds of live ammunition in .40” S&W caliber which
M were suitable for discharge in like caliber pistols; M
(f) one self-loading pistol with a magazine containing
N 15 rounds of live ammunition in 9 mm LUGER caliber N
which were suitable for discharge in like pistols;
O O
(g) one self-loading pistol with a magazine containing
10 rounds of live ammunition in .40” S&W caliber which
P were suitable for discharge in like caliber pistols; P
(h) one self-loading pistol with a magazine containing
Q Q
15 rounds of live ammunition in 9 mm LUGER caliber
which were suitable for discharge in like caliber
R pistols. The defendant’s DNA was found on this pistol; R
(i) two self-loading pistols, each with a magazine
S containing 15 rounds of live ammunition in 9 mm LUGER S
caliber which were suitable for discharge in like
caliber pistols;
T T
(j) one self-loading pistol with a magazine containing
U 17 rounds of live ammunition in 9 mm LUGER caliber U
CRT33/5.11.2021/SC 3 HCCC 169/2021(1)/Sentence
V V
A which were suitable for discharge in like caliber A
pistols.
B Fourthly, 3,324 rounds of ammunition, all suitable for B
discharge. The defendant’s DNA was found on two of the
magazines containing ammunition. In particular, there was a
C C
green box containing 18 rounds of ammunition, 15 of which
were suitable for discharge and are counted towards the said
D 3,324 rounds of ammunition. D
Fifthly, six bottles of gunpowder which are low explosive.
E Explosive effect for low explosive depends on many E
variables, including the quantity of low explosive and the
level of confinement.
F F
So, in total, one air gun, four self-loading rifles,
G 12 self-loading pistols, 3,550 rounds of ammunition and six G
bottles of gunpowder were found at the defendant’s
residence.
H H
In the course of the house search, the defendant admitted
I
possession of all the guns and ammunition and explosive I
found at his residence. He admitted that the ammunition
contained in the green box was made by him and that he
J admitted possession of the gunpowder which was used to make J
the ammunition.
K The 4th Count: The defendant’s workplace in San Po Kong, K
Kowloon was searched by the police with the following items
L found from a locked drawer at his seat in the company. The L
said drawer could be opened by a key seized from the
defendant: firstly, a self-loading pistol with a magazine
M containing nine rounds of live ammunition in 0.357” SIG M
caliber which were suitable for discharge in like caliber,
all in working order; and secondly, 42 rounds of ammunition,
N all in working order. N
O The defendant did not have licence for possessing the arms O
and ammunition charged under the 1st, 2nd and the
4th counts.
P P
I shall now come to his background. The defendant is a
person of clear record. He is 47 years of age. He has
Q Q
received education up to university level. At the time of
his arrest, he was married with a 7-year-old daughter. He
R worked as an information technology and administration R
manager and was the main bread-earner of the family, earning
around $40,000 per month.
S S
In mitigation, counsel for the defendant, Mr Andrew Raffell,
urged me to take into account the good character of the
T T
defendant, his guilty plea at the earliest opportunity and
his genuine remorse.
U U
CRT33/5.11.2021/SC 4 HCCC 169/2021(1)/Sentence
V V
A A total of 29 mitigation letters were submitted to court to A
ask for leniency on his behalf, and they include a letter
written by the defendant’s daughter, his former wife, his
B parents, relatives, colleagues, former employers, friends B
and a project officer who worked together with him during
his remand in the Correctional Services Department. In
C C
these letters, the defendant was described as a filial son,
a caring father, a helpful and responsible person who
D participated in various charitable events on a regular D
basis. Counsel submitted that it is obvious from these
letters that he is a decent person who is well respected and
E trusted by his friends and family, and many of them are in E
court today to show support to the defendant.
F F
In mitigation, counsel stressed that there was no illegal or
political intent on the part of the defendant in keeping the
G items. Counsel said the defendant committed the offences G
due to his obsession with firearms and ammunition and also
his obsession with making his own bullets, rather than
H putting the bullets and the firearms to any actual use. H
Counsel said the gunpowder was raw material used for making
I
his own bullets and should be seen as part and parcel of the I
other offences.
J Counsel also pointed out that the collection was properly J
and safely stored at different premises and there was no or
little chance of them falling into the hands of criminals or
K terrorists. K
L Regarding the defendant’s response upon his arrest L
concerning the claim of self-defence, counsel explained that
at that time, he was in a panic and that he said something
M that was not true. Actually, all along, he had no intention M
of using the pistol or the live ammunition in relation to
the charge of the 1st count.
N N
Counsel submitted that the defendant’s culpability lies at
O the lower end of the scale, and he asked this court to O
impose a global, overall sentence as all the offences
stemmed from the defendant’s obsession with the items.
P P
The offences involved are very serious offences, each of
them carry a maximum sentence of 14 years’ imprisonment.
Q Q
Possession of arms and ammunition without a licence is
always considered to be a very serious offence in Hong Kong
R as they can create grave dangers to the public. A stringent R
approach in sentence should be adopted to ensure that
Hong Kong continues to be a safe city. An immediate
S custodial sentence for a substantial period should be S
imposed except in truly exceptional circumstances.
T T
In the case of HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the
Court of Appeal stated, according to the headnote:
U U
CRT33/5.11.2021/SC 5 HCCC 169/2021(1)/Sentence
V V
A “As a rule, this type of offence would attract a severe A
and deterrent sentence for the reason that firearms and
ammunition pose a potentially grave danger to the
B society. In determining the appropriate sentence, the B
mitigating or aggravating factors include:
C C
(a) the type of firearm and ammunition involved;
D (b) whether the defendant physically carried the D
firearm and ammunition;
E (c) whether the firearm was loaded; E
(d) whether the firearm had been used;
F F
(e) whether the defendant intended to use the
G firearm for illegal purposes; G
(f) whether the firearm and ammunition were
H properly stored or whether they were easily H
accessible by offenders; and
I I
(g) whether the defendant had a clear record.
J The level of sentence depended on the court’s view of J
the potential risk posed by the firearm and ammunition
in question, taking into account the circumstances of
K the case and the defendant’s background.” K
L And at paragraph 19 of that case, the Court of Appeal L
stated:
M “If the defendant had the arms on his person or on his M
body or carried the arms and they were loaded with live
ammunition and the arms had been used, then the
N starting point upon conviction after trial should be N
12 years’ imprisonment.”
O O
In the case of HKSAR v Tsiang On Yan [2019] 5 HKLRD 100,
Zervos JA endorsed the following comments of Woolf LCJ in
P R v Rehman [2006] 1 Cr App R (S) 404: P
“In the case of unlicensed possession of firearms,
Q Q
societal protection is a paramount consideration; it is
a category of offence in which the sentencing court is
R expected to give particular weight to that paramount R
consideration. It is a category of offence which in
general requires a deterrent sentence.”
S S
Woolf LCJ went on to remark that the mere possession of
firearms can create dangers to the public and may result in
T T
a firearm going into circulation.
U U
CRT33/5.11.2021/SC 6 HCCC 169/2021(1)/Sentence
V V
A Having reviewed a number of decided cases, Zervos JA also A
said at paragraphs 45, 51 and 52:
B “45. It seems clear that for a person in possession of B
a firearm with loaded ammunition or a firearm with
ammunition capable of immediate use, a starting
C C
point of 12 years’ imprisonment would be
appropriate.
D D
51. It needs to be appreciated that the courts have
fixed a sentence guideline of 12 years’
E imprisonment where the offender is in possession E
of a firearm together with ammunition which is but
a step away from its use.
F F
52. A firearm and ammunition with the potential to
G kill or maim a person is a lethal weapon which G
ranks high in the level of prohibited items under
this offence. A person convicted of possession of
H such a firearm and ammunition can normally expect H
a sentence after trial of 12 years’ imprisonment
I
unless there are special features that would I
warrant a reduction.”
J It is recognised that there are varying degrees of J
culpability. At the top of the scale is possession for
illegal purposes, whereas possession as a hobby with no risk
K of the arms or ammunition being used for any illegal purpose K
or posing any threat to the public would bring the case to
L the lower end of the scale. Obviously, possession of a L
loaded firearm would call for a more severe sentence than
that for possession of an unloaded firearm. The fact that a
M person has physically carried the arms and ammunition to a M
public place is also an aggravating factor which calls for
more severe sentence.
N N
Regarding the security arrangement in the storage of arms
O and ammunition, the Court of Appeal in the case of Secretary O
for Justice v Leung Kwok Chi, CAAR No. 6/2012, disagreed
that the public could not have access to the arms and
P ammunition because they were stored in the flat because, the P
Court of Appeal said:
Q Q
“(53) The flat was certainly accessible to friends and
relatives of the respondent and the arms and
R ammunition could be attractive to them. A R
trespasser, such as a burglar, would also find
the arms and ammunition in the flat very
S tempting.” S
In the present case, given counsel’s submission that all the
T T
arms and ammunition concerned were properly and safely kept
when they were in the defendant’s custody, I asked for
U counsel’s assistance during his submission in court, and I U
CRT33/5.11.2021/SC 7 HCCC 169/2021(1)/Sentence
V V
A was referred to some photographs taken at the master bedroom A
of the defendant on or about the day of his arrest. And
after going through those paragraphs and with the positions
B or locations confirmed by the defendant, it is now known B
that in respect of Count 1, that is the pistol loaded with
live ammunition found in the rucksack he carried at a shop
C C
in Mongkok, the pistol, or the loaded pistol was being
placed inside one compartment of the rucksack with the
D zipper fastened. There was otherwise no other locking D
device.
E In respect of all the arms and ammunition and explosive E
substance found at his residence in Shatin, that is the
subject matter of Counts 2 and 3, it is now confirmed by the
F F
defendant that all the explosive substances, that is the six
bottles of gunpowder, they were being placed inside a wine
G cabinet in the master bedroom shared by him and his wife who G
has now separated from him. And at that time, the wine
cabinet was being kept closed but without using any lock
H device, and there were other bottles of wine being stored H
inside the same wine cabinet at the same time when the
I
gunpowders were also being stored there. I
In respect of the location of the 12 rifles loaded with live
J ammunition and together with the other 3,000-odd rounds of J
live ammunition found at the master bedroom, it is now
confirmed by the defendant that they were placed inside
K plastic boxes on a shelf in the master bedroom. Having K
looked at the photograph of the shelf, it is confirmed that
L the shelf did not have any door or walls to its perimeter L
and that they were open shelves, and there was no way that
they could be locked with a locking device. However,
M according to the defence, those plastic boxes were placed at M
the rear part of the open shelf, away from the front with
some obstacles being placed at their front so that the view
N of them were being blocked from other people in the N
premises.
O O
As far as the four rifles also loaded with live pistols were
concerned and the air gun, it is now also confirmed that
P they were put in respective rifle bags or rifle box inside P
the master bedroom, and all of them were properly locked by
the use of a padlock respectively.
Q Q
At the material time, the defendant was living at the
R premises in Shatin together with four other persons, that R
is, his elderly mother, his wife who shared the master
bedroom with him, his 7-year-old daughter and also a
S domestic helper. In any event, it is the submission of S
counsel that despite that all these items - the loaded
pistols and the loaded rifles - were being placed inside the
T T
bedroom with the live ammunitions also placed inside the
bedroom, counsel submitted and it is accepted by this court
U U
CRT33/5.11.2021/SC 8 HCCC 169/2021(1)/Sentence
V V
A that his family members did not know about the existence of A
those arms and ammunition and the gunpowder.
B In respect of the arm, of the pistol, found in his office in B
San Po Kong, it is confirmed that it was kept inside a
locked drawer at the seat of the defendant.
C C
As to the reason why that all the firearms and ammunition
D found in this case, the firearms, no matter they were rifles D
or pistols, they were all loaded with live ammunition and
ready to be used, counsel explained that the defendant is a
E person with scientific knowledge about firearms and E
ammunition and that he is a very good engineer. Out of his
drive for perfection, he considered that the firearms were
F F
artefacts and they were not complete unless they are loaded
with live rounds of ammunition, and that is the explanation
G given as to why all the firearms stored at home and also in G
the office, they were loaded with live ammunition, and also
that the pistol in the rucksack when he went to Mongkok was
H also loaded with live ammunition. H
I
As to the reason why he was carrying the pistol in his I
rucksack, counsel explained that he was indeed on that day
trying to return to the office to swap the pistol with
J another one, and that was why he was carrying the pistol on J
his person in a public place.
K Having considered all the factors, especially those set out K
in the case of Chan Chi Fun, I consider that there are
L mitigating factors to the benefit and the advantage of the L
defendant which I will cite out now. I accept that he is a
man of good character. In addition to clear record, he is
M also a person with some positive good character, including M
participation in charitable activities.
N I also accept that he pleads to all the offences as early as N
possible, at the earliest opportunity, and I also accept
O that he has no intention to use any of the firearms or the O
ammunition for any illegal or unlawful purposes. I also
accept that at the time when he was intercepted by police,
P when he told the police that he possessed the pistol in the P
rucksack for self-defence, it was something uttered maybe
out of a moment of panic without meaning that he intended to
Q Q
use that pistol for any violent or criminal purpose. I also
accept that his colleagues and family members were not aware
R of the existence of the loaded firearms that he placed at R
home and in the office.
S In respect of the storage of the firearms and ammunition at S
his home and in office, I accept that the loaded pistol was
properly locked in the drawer in the office, but some of the
T T
firearm and ammunition at home were not properly locked,
thereby exposing, firstly, some of his family members to the
U risk of being harmed by accident because the loaded U
CRT33/5.11.2021/SC 9 HCCC 169/2021(1)/Sentence
V V
A firearms, they were very dangerous weapons and, secondly, of A
course as the Court of Appeal has stated in other cases that
there is also a latent risk, the possibility of the arms and
B ammunition falling into the hands of undesirable people, and B
such a risk does exist especially with those firearms and
ammunition not being locked in the premises.
C C
There is also an aggravating feature in respect of
D Count No. 1 that the defendant had physically carried a D
loaded pistol to a public place in Mongkok at the time of
his interception or at the time of the offence.
E E
The defendant was in possession of a substantial quantity of
arms and ammunition in this case. In respect of Count
F F
No. 3, I accept that there is no tariff for possession of an
explosive substance and each case has to be decided on its
G own facts. In my judgment, there exists the aggravating G
feature of a risk that the firearms and ammunition may fall
into the wrong hands such as when the place is burgled or
H becomes unlawfully used, and that such a risk is very high H
especially in respect of those found at his home premises.
I
That is the subject matter of Count No. 2. I
In all the circumstances, having regard to the authorities
J that I have cited and all the mitigating factors and the J
aggravating features, I am of the view that the following
starting points are appropriate for this case.
K K
In respect of Count No. 1, I will adopt a starting point of
L 8 years’ imprisonment. The defendant has pleaded guilty at L
his earliest opportunity and he is entitled to a full one-
third discount. So in respect of Count No. 1, he is
M sentenced to a total of 5 years and 4 months’ imprisonment. M
In respect of Count No. 2, I adopt a starting point of
N 9½ years’ imprisonment. Taking into account his early plea, N
he is entitled to a full one-third discount and so the
O sentence is reduced to that of 6 years and 4 months’ O
imprisonment for Count 2.
P For Count No. 3, I adopt a starting point of 2 years’ P
imprisonment which, after the one-third reduction, is
reduced to 16 months.
Q Q
For Count 4, I adopt a starting point of 6 years’
R imprisonment, and giving him the full one-third discount, R
the sentence is reduced to that of 4 years.
S I accept that all the firearms and ammunition and explosive S
substances relating to Counts 2, 3 and 4, they arose out of
the same or similar issue, that is, for storage. As such, I
T T
order that the sentences in respect of Counts 2, 3 and 4 to
be served concurrently to each other, thereby the total
U U
CRT33/5.11.2021/SC 10 HCCC 169/2021(1)/Sentence
V V
A sentence for Counts 2, 3 and 4 is one of 6 years and A
4 months.
B In respect of Count No. 1, the offence was committed in B
relation to the possession of a loaded pistol at a public
place, and he had actually carried the loaded pistol to that
C C
public place on the day of the offence. Having considered
all the circumstances, I consider that 8 months of the
D sentence in Count 1 should be served consecutively to the D
sentences in the other counts, thereby making the total
sentence for all four counts as one of 7 years, and the
E defendant is sentenced to 7 years’ imprisonment in respect E
of all the offences.
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
CRT33/5.11.2021/SC 11 HCCC 169/2021(1)/Sentence
V V
A HCCC 169/2021 A
[2021] HKCFI 3499
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 169 OF 2021
D ----------------- D
HKSAR
E E
v
F F
Li Chung-man, Alfred
G ------------------ G
Before: DHCJ Anna Lai, SC
H Date: 5 November 2021 at 12.09 pm H
Present: Ms Noelle Aileen Chit, SPP of the Department of
I
Justice, for HKSAR I
Mr Andrew Raffell, instructed by To, Lam & Co, for the
accused
J Offence: (1), (2) & (4) Possession of arms and ammunition J
without licence (無牌管有槍械及彈藥)
(3) Possession of an explosive substance (管有爆炸品)
K K
---------------------------------
L Transcript of the Audio Recording L
of the Sentence in the above Case
---------------------------------
M M
COURT: The defendant faces four charges involving arms and
N ammunition and an explosive. Counts 1, 2 and 4 involve the N
possession of arms and ammunition without a licence,
contrary to section 13(1) and (2) of the Firearms and
O Ammunition Ordinance, Chapter 238. Count 3 was possession O
of an explosive, contrary to section 55(1) of the Crimes
Ordinance, Chapter 200.
P P
The defendant pleaded guilty before a magistrate on
Q 9 August 2021 this year and was committed to the Court of Q
First Instance for sentence. He confirmed the plea and
admitted the facts in support of the charges before me this
R morning. R
All the offences were committed on the same day on
S S
21 February 2019. Count 1 relates to the possession of a
self-loading pistol and 30 rounds of ammunition at a shop in
T Mongkok. Count 2 relates to the possession of an air gun, T
four self-loading rifles, 12 self-loading pistols and
3,550 rounds of ammunition found at the defendant’s
U residence in Shatin. Count 3 relates to the possession of U
CRT33/5.11.2021/SC 1 HCCC 169/2021(1)/Sentence
V V
A an explosive substance, namely, six bottles of gunpowder at A
the same residence. Count 4 relates to the possession of a
self-loading pistol and 51 rounds of ammunition at the
B defendant’s workplace in San Po Kong. B
In total, there were 14 self-loading pistols, four self-
C C
loading rifles, one air gun, 3,631 rounds of ammunition and
six bottles of gunpowder.
D D
The facts which the defendant has admitted may be summarised
as follows. In respect of the 1st count, on
E 21 February 2019, the police officers conducted an operation E
at a shop in Mongkok area. At about 5.42 pm on that day,
the defendant arrived on his own with a rucksack. He was
F F
intercepted by police with the following items found in the
rucksack: firstly, one self-loading pistol in 9 mm LUGER
G caliber inserted with one magazine containing 15 rounds of G
live ammunition suitable for discharge in like caliber
pistols, all in working order; secondly, another magazine
H capable of storing 9 mm LUGER caliber ammunition containing H
15 rounds of live ammunition suitable for discharge in like
I
caliber pistols. I
Under caution at the scene, the defendant admitted his
J possession of the pistol and ammunition for self-defence. J
In a subsequent video-recorded interview, the defendant
admitted ownership of the firearms and ammunition and said
K the pistol in the rucksack was made by him, and he put these K
items in the rucksack because it was dangerous outside.
L L
The CCTV footage of the defendant’s residence and workplace
showed that he was in possession of the rucksack where the
M pistol was found at all times on the day of arrest. M
In respect of the 2nd and the 3rd counts, the defendant at
N that time lived in Shatin. His residence was searched by N
police with the following items found and seized from his
O master bedroom. There are a total of five items: the first O
item, a pre-charged pneumatic powered air gun which was
capable of discharging .25” caliber pellet with muzzle
P energy of 55.46 joules. Its detachable air tank was found P
to have been charged with pressurised gas.
Q Q
Secondly, the following four self-loading rifles, all in
working order:
R R
(a) one self-loading rifle designed to discharge 6.5 mm
Grendel caliber ammunition, with a magazine containing
S 15 rounds of ammunition and was suitable for use in S
this rifle;
T T
(b) two self-loading rifles, each with a magazine
containing 20 rounds of live ammunition in .223”
U U
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A Remington caliber, and were suitable for use in these A
rifles;
B (c) one self-loading rifle with a magazine containing B
10 rounds of live ammunition in 6.5 mm Creedmoor
caliber, and was suitable for use in this rifle.
C C
Thirdly, the following 12 self-loading pistols, all in
D working order: D
(a) one self-loading pistol with a magazine containing
E 15 rounds of live ammunition in 9 mm LUGER caliber E
which was suitable for discharge in like caliber
pistols;
F F
(b) one self-loading pistol with a magazine containing
G seven rounds of live ammunition in 9 mm LUGER caliber G
which was suitable for discharge in like caliber
pistols;
H H
(c) two self-loading pistols, each with a magazine
I
containing 11 rounds of live ammunition in 9 mm LUGER I
caliber which were suitable for discharge in like
caliber pistols;
J J
(d) one self-loading pistol with a magazine containing
17 rounds of live ammunition in 9 mm LUGER caliber
K which were suitable for discharge in like caliber K
pistols;
L L
(e) one self-loading pistol with a magazine containing
13 rounds of live ammunition in .40” S&W caliber which
M were suitable for discharge in like caliber pistols; M
(f) one self-loading pistol with a magazine containing
N 15 rounds of live ammunition in 9 mm LUGER caliber N
which were suitable for discharge in like pistols;
O O
(g) one self-loading pistol with a magazine containing
10 rounds of live ammunition in .40” S&W caliber which
P were suitable for discharge in like caliber pistols; P
(h) one self-loading pistol with a magazine containing
Q Q
15 rounds of live ammunition in 9 mm LUGER caliber
which were suitable for discharge in like caliber
R pistols. The defendant’s DNA was found on this pistol; R
(i) two self-loading pistols, each with a magazine
S containing 15 rounds of live ammunition in 9 mm LUGER S
caliber which were suitable for discharge in like
caliber pistols;
T T
(j) one self-loading pistol with a magazine containing
U 17 rounds of live ammunition in 9 mm LUGER caliber U
CRT33/5.11.2021/SC 3 HCCC 169/2021(1)/Sentence
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A which were suitable for discharge in like caliber A
pistols.
B Fourthly, 3,324 rounds of ammunition, all suitable for B
discharge. The defendant’s DNA was found on two of the
magazines containing ammunition. In particular, there was a
C C
green box containing 18 rounds of ammunition, 15 of which
were suitable for discharge and are counted towards the said
D 3,324 rounds of ammunition. D
Fifthly, six bottles of gunpowder which are low explosive.
E Explosive effect for low explosive depends on many E
variables, including the quantity of low explosive and the
level of confinement.
F F
So, in total, one air gun, four self-loading rifles,
G 12 self-loading pistols, 3,550 rounds of ammunition and six G
bottles of gunpowder were found at the defendant’s
residence.
H H
In the course of the house search, the defendant admitted
I
possession of all the guns and ammunition and explosive I
found at his residence. He admitted that the ammunition
contained in the green box was made by him and that he
J admitted possession of the gunpowder which was used to make J
the ammunition.
K The 4th Count: The defendant’s workplace in San Po Kong, K
Kowloon was searched by the police with the following items
L found from a locked drawer at his seat in the company. The L
said drawer could be opened by a key seized from the
defendant: firstly, a self-loading pistol with a magazine
M containing nine rounds of live ammunition in 0.357” SIG M
caliber which were suitable for discharge in like caliber,
all in working order; and secondly, 42 rounds of ammunition,
N all in working order. N
O The defendant did not have licence for possessing the arms O
and ammunition charged under the 1st, 2nd and the
4th counts.
P P
I shall now come to his background. The defendant is a
person of clear record. He is 47 years of age. He has
Q Q
received education up to university level. At the time of
his arrest, he was married with a 7-year-old daughter. He
R worked as an information technology and administration R
manager and was the main bread-earner of the family, earning
around $40,000 per month.
S S
In mitigation, counsel for the defendant, Mr Andrew Raffell,
urged me to take into account the good character of the
T T
defendant, his guilty plea at the earliest opportunity and
his genuine remorse.
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A A total of 29 mitigation letters were submitted to court to A
ask for leniency on his behalf, and they include a letter
written by the defendant’s daughter, his former wife, his
B parents, relatives, colleagues, former employers, friends B
and a project officer who worked together with him during
his remand in the Correctional Services Department. In
C C
these letters, the defendant was described as a filial son,
a caring father, a helpful and responsible person who
D participated in various charitable events on a regular D
basis. Counsel submitted that it is obvious from these
letters that he is a decent person who is well respected and
E trusted by his friends and family, and many of them are in E
court today to show support to the defendant.
F F
In mitigation, counsel stressed that there was no illegal or
political intent on the part of the defendant in keeping the
G items. Counsel said the defendant committed the offences G
due to his obsession with firearms and ammunition and also
his obsession with making his own bullets, rather than
H putting the bullets and the firearms to any actual use. H
Counsel said the gunpowder was raw material used for making
I
his own bullets and should be seen as part and parcel of the I
other offences.
J Counsel also pointed out that the collection was properly J
and safely stored at different premises and there was no or
little chance of them falling into the hands of criminals or
K terrorists. K
L Regarding the defendant’s response upon his arrest L
concerning the claim of self-defence, counsel explained that
at that time, he was in a panic and that he said something
M that was not true. Actually, all along, he had no intention M
of using the pistol or the live ammunition in relation to
the charge of the 1st count.
N N
Counsel submitted that the defendant’s culpability lies at
O the lower end of the scale, and he asked this court to O
impose a global, overall sentence as all the offences
stemmed from the defendant’s obsession with the items.
P P
The offences involved are very serious offences, each of
them carry a maximum sentence of 14 years’ imprisonment.
Q Q
Possession of arms and ammunition without a licence is
always considered to be a very serious offence in Hong Kong
R as they can create grave dangers to the public. A stringent R
approach in sentence should be adopted to ensure that
Hong Kong continues to be a safe city. An immediate
S custodial sentence for a substantial period should be S
imposed except in truly exceptional circumstances.
T T
In the case of HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the
Court of Appeal stated, according to the headnote:
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CRT33/5.11.2021/SC 5 HCCC 169/2021(1)/Sentence
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A “As a rule, this type of offence would attract a severe A
and deterrent sentence for the reason that firearms and
ammunition pose a potentially grave danger to the
B society. In determining the appropriate sentence, the B
mitigating or aggravating factors include:
C C
(a) the type of firearm and ammunition involved;
D (b) whether the defendant physically carried the D
firearm and ammunition;
E (c) whether the firearm was loaded; E
(d) whether the firearm had been used;
F F
(e) whether the defendant intended to use the
G firearm for illegal purposes; G
(f) whether the firearm and ammunition were
H properly stored or whether they were easily H
accessible by offenders; and
I I
(g) whether the defendant had a clear record.
J The level of sentence depended on the court’s view of J
the potential risk posed by the firearm and ammunition
in question, taking into account the circumstances of
K the case and the defendant’s background.” K
L And at paragraph 19 of that case, the Court of Appeal L
stated:
M “If the defendant had the arms on his person or on his M
body or carried the arms and they were loaded with live
ammunition and the arms had been used, then the
N starting point upon conviction after trial should be N
12 years’ imprisonment.”
O O
In the case of HKSAR v Tsiang On Yan [2019] 5 HKLRD 100,
Zervos JA endorsed the following comments of Woolf LCJ in
P R v Rehman [2006] 1 Cr App R (S) 404: P
“In the case of unlicensed possession of firearms,
Q Q
societal protection is a paramount consideration; it is
a category of offence in which the sentencing court is
R expected to give particular weight to that paramount R
consideration. It is a category of offence which in
general requires a deterrent sentence.”
S S
Woolf LCJ went on to remark that the mere possession of
firearms can create dangers to the public and may result in
T T
a firearm going into circulation.
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CRT33/5.11.2021/SC 6 HCCC 169/2021(1)/Sentence
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A Having reviewed a number of decided cases, Zervos JA also A
said at paragraphs 45, 51 and 52:
B “45. It seems clear that for a person in possession of B
a firearm with loaded ammunition or a firearm with
ammunition capable of immediate use, a starting
C C
point of 12 years’ imprisonment would be
appropriate.
D D
51. It needs to be appreciated that the courts have
fixed a sentence guideline of 12 years’
E imprisonment where the offender is in possession E
of a firearm together with ammunition which is but
a step away from its use.
F F
52. A firearm and ammunition with the potential to
G kill or maim a person is a lethal weapon which G
ranks high in the level of prohibited items under
this offence. A person convicted of possession of
H such a firearm and ammunition can normally expect H
a sentence after trial of 12 years’ imprisonment
I
unless there are special features that would I
warrant a reduction.”
J It is recognised that there are varying degrees of J
culpability. At the top of the scale is possession for
illegal purposes, whereas possession as a hobby with no risk
K of the arms or ammunition being used for any illegal purpose K
or posing any threat to the public would bring the case to
L the lower end of the scale. Obviously, possession of a L
loaded firearm would call for a more severe sentence than
that for possession of an unloaded firearm. The fact that a
M person has physically carried the arms and ammunition to a M
public place is also an aggravating factor which calls for
more severe sentence.
N N
Regarding the security arrangement in the storage of arms
O and ammunition, the Court of Appeal in the case of Secretary O
for Justice v Leung Kwok Chi, CAAR No. 6/2012, disagreed
that the public could not have access to the arms and
P ammunition because they were stored in the flat because, the P
Court of Appeal said:
Q Q
“(53) The flat was certainly accessible to friends and
relatives of the respondent and the arms and
R ammunition could be attractive to them. A R
trespasser, such as a burglar, would also find
the arms and ammunition in the flat very
S tempting.” S
In the present case, given counsel’s submission that all the
T T
arms and ammunition concerned were properly and safely kept
when they were in the defendant’s custody, I asked for
U counsel’s assistance during his submission in court, and I U
CRT33/5.11.2021/SC 7 HCCC 169/2021(1)/Sentence
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A was referred to some photographs taken at the master bedroom A
of the defendant on or about the day of his arrest. And
after going through those paragraphs and with the positions
B or locations confirmed by the defendant, it is now known B
that in respect of Count 1, that is the pistol loaded with
live ammunition found in the rucksack he carried at a shop
C C
in Mongkok, the pistol, or the loaded pistol was being
placed inside one compartment of the rucksack with the
D zipper fastened. There was otherwise no other locking D
device.
E In respect of all the arms and ammunition and explosive E
substance found at his residence in Shatin, that is the
subject matter of Counts 2 and 3, it is now confirmed by the
F F
defendant that all the explosive substances, that is the six
bottles of gunpowder, they were being placed inside a wine
G cabinet in the master bedroom shared by him and his wife who G
has now separated from him. And at that time, the wine
cabinet was being kept closed but without using any lock
H device, and there were other bottles of wine being stored H
inside the same wine cabinet at the same time when the
I
gunpowders were also being stored there. I
In respect of the location of the 12 rifles loaded with live
J ammunition and together with the other 3,000-odd rounds of J
live ammunition found at the master bedroom, it is now
confirmed by the defendant that they were placed inside
K plastic boxes on a shelf in the master bedroom. Having K
looked at the photograph of the shelf, it is confirmed that
L the shelf did not have any door or walls to its perimeter L
and that they were open shelves, and there was no way that
they could be locked with a locking device. However,
M according to the defence, those plastic boxes were placed at M
the rear part of the open shelf, away from the front with
some obstacles being placed at their front so that the view
N of them were being blocked from other people in the N
premises.
O O
As far as the four rifles also loaded with live pistols were
concerned and the air gun, it is now also confirmed that
P they were put in respective rifle bags or rifle box inside P
the master bedroom, and all of them were properly locked by
the use of a padlock respectively.
Q Q
At the material time, the defendant was living at the
R premises in Shatin together with four other persons, that R
is, his elderly mother, his wife who shared the master
bedroom with him, his 7-year-old daughter and also a
S domestic helper. In any event, it is the submission of S
counsel that despite that all these items - the loaded
pistols and the loaded rifles - were being placed inside the
T T
bedroom with the live ammunitions also placed inside the
bedroom, counsel submitted and it is accepted by this court
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CRT33/5.11.2021/SC 8 HCCC 169/2021(1)/Sentence
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A that his family members did not know about the existence of A
those arms and ammunition and the gunpowder.
B In respect of the arm, of the pistol, found in his office in B
San Po Kong, it is confirmed that it was kept inside a
locked drawer at the seat of the defendant.
C C
As to the reason why that all the firearms and ammunition
D found in this case, the firearms, no matter they were rifles D
or pistols, they were all loaded with live ammunition and
ready to be used, counsel explained that the defendant is a
E person with scientific knowledge about firearms and E
ammunition and that he is a very good engineer. Out of his
drive for perfection, he considered that the firearms were
F F
artefacts and they were not complete unless they are loaded
with live rounds of ammunition, and that is the explanation
G given as to why all the firearms stored at home and also in G
the office, they were loaded with live ammunition, and also
that the pistol in the rucksack when he went to Mongkok was
H also loaded with live ammunition. H
I
As to the reason why he was carrying the pistol in his I
rucksack, counsel explained that he was indeed on that day
trying to return to the office to swap the pistol with
J another one, and that was why he was carrying the pistol on J
his person in a public place.
K Having considered all the factors, especially those set out K
in the case of Chan Chi Fun, I consider that there are
L mitigating factors to the benefit and the advantage of the L
defendant which I will cite out now. I accept that he is a
man of good character. In addition to clear record, he is
M also a person with some positive good character, including M
participation in charitable activities.
N I also accept that he pleads to all the offences as early as N
possible, at the earliest opportunity, and I also accept
O that he has no intention to use any of the firearms or the O
ammunition for any illegal or unlawful purposes. I also
accept that at the time when he was intercepted by police,
P when he told the police that he possessed the pistol in the P
rucksack for self-defence, it was something uttered maybe
out of a moment of panic without meaning that he intended to
Q Q
use that pistol for any violent or criminal purpose. I also
accept that his colleagues and family members were not aware
R of the existence of the loaded firearms that he placed at R
home and in the office.
S In respect of the storage of the firearms and ammunition at S
his home and in office, I accept that the loaded pistol was
properly locked in the drawer in the office, but some of the
T T
firearm and ammunition at home were not properly locked,
thereby exposing, firstly, some of his family members to the
U risk of being harmed by accident because the loaded U
CRT33/5.11.2021/SC 9 HCCC 169/2021(1)/Sentence
V V
A firearms, they were very dangerous weapons and, secondly, of A
course as the Court of Appeal has stated in other cases that
there is also a latent risk, the possibility of the arms and
B ammunition falling into the hands of undesirable people, and B
such a risk does exist especially with those firearms and
ammunition not being locked in the premises.
C C
There is also an aggravating feature in respect of
D Count No. 1 that the defendant had physically carried a D
loaded pistol to a public place in Mongkok at the time of
his interception or at the time of the offence.
E E
The defendant was in possession of a substantial quantity of
arms and ammunition in this case. In respect of Count
F F
No. 3, I accept that there is no tariff for possession of an
explosive substance and each case has to be decided on its
G own facts. In my judgment, there exists the aggravating G
feature of a risk that the firearms and ammunition may fall
into the wrong hands such as when the place is burgled or
H becomes unlawfully used, and that such a risk is very high H
especially in respect of those found at his home premises.
I
That is the subject matter of Count No. 2. I
In all the circumstances, having regard to the authorities
J that I have cited and all the mitigating factors and the J
aggravating features, I am of the view that the following
starting points are appropriate for this case.
K K
In respect of Count No. 1, I will adopt a starting point of
L 8 years’ imprisonment. The defendant has pleaded guilty at L
his earliest opportunity and he is entitled to a full one-
third discount. So in respect of Count No. 1, he is
M sentenced to a total of 5 years and 4 months’ imprisonment. M
In respect of Count No. 2, I adopt a starting point of
N 9½ years’ imprisonment. Taking into account his early plea, N
he is entitled to a full one-third discount and so the
O sentence is reduced to that of 6 years and 4 months’ O
imprisonment for Count 2.
P For Count No. 3, I adopt a starting point of 2 years’ P
imprisonment which, after the one-third reduction, is
reduced to 16 months.
Q Q
For Count 4, I adopt a starting point of 6 years’
R imprisonment, and giving him the full one-third discount, R
the sentence is reduced to that of 4 years.
S I accept that all the firearms and ammunition and explosive S
substances relating to Counts 2, 3 and 4, they arose out of
the same or similar issue, that is, for storage. As such, I
T T
order that the sentences in respect of Counts 2, 3 and 4 to
be served concurrently to each other, thereby the total
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CRT33/5.11.2021/SC 10 HCCC 169/2021(1)/Sentence
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A sentence for Counts 2, 3 and 4 is one of 6 years and A
4 months.
B In respect of Count No. 1, the offence was committed in B
relation to the possession of a loaded pistol at a public
place, and he had actually carried the loaded pistol to that
C C
public place on the day of the offence. Having considered
all the circumstances, I consider that 8 months of the
D sentence in Count 1 should be served consecutively to the D
sentences in the other counts, thereby making the total
sentence for all four counts as one of 7 years, and the
E defendant is sentenced to 7 years’ imprisonment in respect E
of all the offences.
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
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V V