HCCC356/2015 HKSAR v. MA CHUN KING RICKY - LawHero
HCCC356/2015
高等法院（刑事）Barnes J22/2/2016
HCCC356/2015
A A
HCCC 356/2015
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 356 OF 2015
D ----------------- D
HKSAR
E v E
F
MA Chun-king Ricky F
------------------
G Before: Hon Barnes J G
Date: 23 February 2016 at 10.16 am
Present: Mr Harish Melwaney, SPP of the Department of
H Justice, for HKSAR H
Mr Peter C C Yu, instructed by C Y Lam & Co, for
I the accused I
Offence: (1), (2) Possession of arms and ammunition without a
licence (無牌管有槍械及彈藥)
J (3) Attempted possession of arms and ammunition J
without a licence (企圖無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: The defendant, Ma Chun-king, Ricky, faced three charges M
involving arms and ammunitions. The first two counts
N involved the possession of arms and ammunition without a N
licence, contrary to section 13(1) and (2) of the Firearms
and Ammunition Ordinance, Cap 238 (Counts 1 and 2). The
O last count was an attempted possession of arms and O
ammunition without a licence, contrary to aforesaid section
13(1) and (2) of Cap 238, and section 159G of the Crimes
P P
Ordinance, Cap 200.
Q The defendant pleaded guilty before a magistrate and was Q
committed to the High Court for sentence. I will read out
the admitted facts.
R R
On 28 July 2013, the defendant was intercepted by a Customs
officer at the Shenzhen Bay Control Point when he returned to
S Hong Kong from the mainland. A search of his person revealed S
two black arc-shaped magazines, one with 24 cartridge cases
and the other 26 cartridge cases. Examination conducted
T T
later showed that the two magazines were capable of
functioning in a Chinese-type 56 assault rifle in 7.62 times
U 39 millimetres calibre. The 50 cartridge cases, that is 24 U
CRT22/23.2.2016/TW/ag 1 HCCC 356/2015/Sentence
V V
A A
plus 26, were of 7.62 times 39 millimetres calibre. That is
the facts of Count 1.
B B
The defendant was arrested. Under caution, the defendant
claimed the magazines were toys with decorative ammunition.
C C
He bought those items three to four years back for $3,000
from a shop and he had taken the magazines to show to a
D friend in the mainland. D
The defendant led the police to his home at Cheung On Estate,
E Tsing Yi on the same day, and the police found 10 rifles, 15 E
pistols, 11 revolvers and a batch of magazines and ammunition
inside the defendant’s bedroom. Under caution, the defendant
F claimed they were all toy guns he had collected. F
G
After examination conducted later, the defendant was found to G
have in his possession five airguns capable of discharging
pellets with a muzzle power exceeding 2 joules. The maximum
H muzzle energy being 9.7, 16.08, 2.87, 2.28 and 2.28 joules H
respectively, all exceeding 2 joules. The defendant was also
found to be in possession of three cartridge cases in 7.62
I times 39 millimetres calibre. That is the contents about I
Count 2.
J J
The defendant attended a video-recorded interview on 29 July
2013. During the video-recorded interview, the defendant
K reiterated that in relation to the items found in his K
possession in Count 1, he purchased the cartridges from a
shop for a decorative purpose and that he had brought them
L along to show a friend in the mainland. As to the items L
found at his home, basically the defendant said that a number
M
of the airguns were sold to him by his customer when he was M
operating a shop selling war-game related merchandises.
N The defendant was released on bail pending examination of the N
large number of exhibits. Due to the extended period
required for the examination, the defendant was released
O unconditionally on 3 April 2014. O
On 9 June 2014, a parcel from Thailand aroused the suspicion
P P
of a Customs officer on duty at the Customs Examination Hall
at Chek Lap Kok. Upon opening the parcel, the officer found
Q a 0.38 calibre revolver and a total of 47 rounds of Q
ammunition hidden inside the parcel. The police was notified
to take over the case.
R R
A controlled delivery operation was mounted, and the
proprietor of a shop mentioned as the addressee denied
S knowledge when questioned by the police. But he told the S
police that the defendant had requested him to receive a
T parcel of souvenirs sent from Thailand on his behalf. T
The defendant was arrested by the police and under caution
U the defendant said he bought that 0.38 real gun in Thailand U
CRT22/23.2.2016/TW/ag 2 HCCC 356/2015/Sentence
V V
A A
and mailed it to Hong Kong for his own collection, saying
also that he would not hurt people. That is Count 3.
B B
The defendant attended a video-recorded interview on 11 June
2014 and he gave details of how he came to purchase the gun
C C
and mailed it back to Hong Kong.
D Examination showed the revolver was a 0.38 special calibre US D
origin Ruger Police Service Six Revolver in working order.
The 47 rounds of live ammunition were of 0.38 special
E calibre, suitable for discharge in like calibre revolver such E
as the special revolver seized at the same time.
F The defendant formally admitted and accepted that at all F
material times he had possession of the arms and ammunition
G
referred to (the first two counts) without a licence in Hong G
Kong and that he attempted to possess the arms and ammunition
referred to (Count 3) without a licence in Hong Kong.
H H
Background and mitigation
I The defendant is 43-year-old single man with one previous I
similar conviction in 2007. He was fined $30,000 for the
possession of arms and ammunition without a licence. The
J J
defendant studied up to form five and had worked as a waiter
and a tour guide. In 2006, the defendant operated a shop
K selling simulated military products but the shop closed down K
in 2011. The defendant then became a part-time war game
guide for about a year. He was unemployed since 2013.
L L
Mr Peter Yu, counsel for the defendant, submitted in
mitigation that the defendant is a gun enthusiast who had a
M huge addiction to toy guns. The defendant started to sell M
simulated guns in 1991 and the shop closed after a year. The
N defendant then spent 10 years in Korea. Upon his return, he N
operated another shop selling simulated military products.
He transferred his interest to a friend in 2011 and he became
O a war game instructor, teaching gun safety and war game O
safety.
P As the airguns are too long to be placed inside a wardrobe, P
the defendant placed them outside. The defendant placed caps
Q on the airguns for safety. There were also safety locks so Q
they would not be fired accidentally. He locked his bedroom
door so he was the only person who had access to his bedroom.
R R
As to the commission of the first offence, Count 1, he came
to know a “Sze Fu” at a bicycle shop in Nansha where his
S sister had a flat and he stayed from time to time. He had S
showed photographs of the cartridges to the Sze Fu but the
latter wanted to see the real thing, he therefore brought
T T
along the cartridges to show him in order to show off. He
had no intention of using the cartridges for illegal
U U
CRT22/23.2.2016/TW/ag 3 HCCC 356/2015/Sentence
V V
A A
purposes. The defendant reiterated that the cartridges were
for decorative purposes and were not functional.
B B
As to the Ruger Police Service Six Revolver, the defendant
said this is the first time he attempted to obtain a real
C C
gun. He found it has a collector’s value as such a model is
out of production. He planned to disarm the gun by drilling
D a hole in the handle and extracting all the gun powder from D
the live rounds.
E In relation to defendant’s assertions that the cartridges E
were not functional, that the airguns have safety devices on,
he intended to disarm the Ruger Police Service Six Revolver,
F I asked the prosecution to furnish me with information F
whether the defendant’s assertion is true. I have been
G supplied with such information and I will deal with them when G
I consider the appropriate sentence.
H Mr Yu informed me that the defendant is very remorseful and H
he pleaded guilty at the earliest possible opportunity. His
possession of the arms and ammunition was purely as a
I collector with no intention to use them for any illegal I
purpose.
J J
The defendant, his father, his elder sister, his girlfriend,
and a number of friends wrote to me asking for leniency. The
K defendant himself stressed that he had no intention to commit K
any crime with the arms and ammunition and he had learnt a
bitter lesson. One of his friends, a certain Mr Lo,
L expressed surprise to learn of the defendant’s crime as the L
defendant used to remind Mr Lo the restriction on firearms in
M
Hong Kong. M
I called for a psychologist’s report on the defendant prior
N to sentence. The defendant was described as a reserved and N
egocentric person. The clinical psychologist was of the view
that the defendant had not learned from his previous
O wrongdoings and somehow harbours the idea that he should not O
be criminally liable if the arms and ammunition collected by
him were not for illegal use. His risk of reoffending was
P P
assessed to be moderate.
Q Mr Yu at the adjourned hearing today further mitigated on Q
behalf of the defendant. He confirmed that the defendant
agreed with the psychologist’s report and also the statements
R further provided by the prosecution in relation to the R
assertions made by the defendant.
S Mr Yu stressed that the defendant is not a bad person and he S
finds himself in his present position purely because of the
T interest in collecting guns since he was young. Mr Yu T
accepts there is a risk of the arms falling into the hands of
the wrong people, but stressed that in relation to the
U airguns such risk is not high as the defendant only took out U
CRT22/23.2.2016/TW/ag 4 HCCC 356/2015/Sentence
V V
A A
those airguns with muzzle energy not over 2 joules out to
play war games and he was aware that those with higher muzzle
B power would injure others. B
Sentence
C C
Possession of arms and ammunitions without a licence is a
D serious offence. A person convicted of this offence on D
indictment is liable to a fine of $100,000 and imprisonment
of 14 years. In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the
E Court of Appeal stated (this is taken from the headnote): E
“As a rule, this type of offence would attract a severe
F and deterrent sentence, for the reason that firearms and F
ammunition posed a potentially grave danger to the
G
society. In determining the appropriate sentence, the G
mitigating or aggravating factors included:
H (a) the type of firearm and ammunition involved; H
(b) whether the defendant physically carried the
I firearm and ammunition; I
(c) whether the firearm was loaded;
J J
(d) whether the firearm had been used;
K K
(e) whether the defendant intended to use the
firearm for illegal purposes;
L L
(f) whether the firearm and ammunition were
properly stored or whether they were easily
M accessible by offenders; and M
(g) whether the defendant had a clear record.
N N
The level of sentence depended on the court’s view of
the potential risk posed by the firearm and ammunition
O O
in question, taking into account the circumstances of
the case and the defendant’s background.”
P P
These relevant factors were adopted in a case of Secretary
for Justice v Yan Shen CAAR 10/2011 (unreported). The Court
Q of Appeal in that case stated that societal protection is the Q
paramount consideration in order to maintain the safety of
Hong Kong and an immediate sentence often for a substantial
R R
term, should be imposed except in truly exceptional
circumstances.
S S
The Court of Appeal in a case of Secretary for Justice v
Leung Kwok Chi CAAR 6/2012 (unreported), also referred to the
T above two cases and adopted the same. T
As to the ammunition possessed by the defendant in Count 1,
U I accept that the possession of ammunition is usually less U
CRT22/23.2.2016/TW/ag 5 HCCC 356/2015/Sentence
V V
A A
serious than the possession of arms: see the case of R v Man
Hung Pui [1993] 2 HKC 174. The evidence as confirmed by the
B expert showed that in respect of each of the 50 cartridges, B
primer was not present and the primer pocket was filled with
rubber-like material rendering the ammunition incapable of
C C
being discharged. Each of the magazine could house 30 rounds
of ammunition. The defendant carried 24 and 26 respectively.
D I accept that they were decorative items which the defendant D
wanted to show off to the Sze Fu. There was no evidence that
the defendant possessed them for any illegal purposes.
E E
Bearing in mind that the defendant is not a first offender,
having a previous conviction for the same offence, I am of
F F
the view that a sentence of 12 months’ imprisonment after
trial would have been appropriate.
G G
In respect of Count 2, I accept the possession of air rifles
and air pistols is less serious than the possession of
H unlicensed firearms: see The Queen v Leung Shiu Lun H
(unreported) CACC 609/1996. A total of five air pistols are
involved here. Three of them were just over the statutory
I I
limit of muzzle energy of 2 joules, namely 2.28, 2.28, and
2.87 joules. However, the other two have a higher muzzle
J energy, one at 9.7 joules and the other at 16.08 joules. J
They were not properly kept under lock but rather casually
placed against the wardrobe inside the defendant’s bedroom.
K K
I accept the expert evidence that there were safety locks on
them and I also accept from the photographs that some can
L been seen with a cap on. I accept the defendant had only L
taken those airguns with muzzle power not over 2 joules out
M to play war games and that he usually locked his bedroom door M
to restrict access to his bedroom. Nevertheless, one cannot
discard the possibility of these items falling into the wrong
N hands such as if the place is burgled. N
As to the three cartridges found, again, they were for
O decorative purposes as they were in the same condition as the O
50 found in Count 1: that is according to the evidence of the
P
expert. P
I accept that there is no evidence to show that the
Q defendant’s possession of the arms and ammunition in Count 2 Q
was for any illegal purpose.
R Bearing in mind the defendant already had a previous similar R
conviction and in all the circumstances of this case I am of
the view that a term of 2 years’ imprisonment after trial
S S
would have been appropriate.
T The attempted possession of the unlicensed 0.38 revolver and T
the live ammunition in Count 3 is more serious in this case.
The defendant was already caught in possession of the
U ammunition in Count 1 and arms and ammunition in Count 2 and U
CRT22/23.2.2016/TW/ag 6 HCCC 356/2015/Sentence
V V
A A
was under investigation when he committed this attempted
offence. He was granted bail originally but as the
B examination took much longer than expected, the defendant was B
later released without bail.
C C
As the defendant already had one previous conviction of
possession of arms and ammunition without a licence back in
D 2007, he could not possibly have thought that nothing would D
come out of the much larger quantity of arms and ammunition
he was found in possession on this occasion. He therefore
E committed the offence in Count 3 while practically waiting E
for the outcome on the first two counts.
F This is the first time the defendant was found to attempt to F
possess a real gun. I accept the reason he gave for having a
G desire to own such a gun, even though the expert was not able G
to comment on this aspect. I also accept that he intended to
drill holes in the gun handle and in the live bullets to
H render the gun incapable of firing shots. Nevertheless, I H
cannot ignore the risk of this gun falling into wrong hands
before the defendant was able to render the gun inoperative.
I I
Furthermore, should this gun fall into the wrong hands, even
if it had been rendered inoperative, it could still be used
J for illegal purposes. J
Having considered all of the circumstances of this offence, I
K am of the view that a term of 4 years’ imprisonment after K
trial would have been appropriate.
L The defendant pleaded guilty at the earliest available L
opportunity and I will give him the full one-third discount.
M
After the discount, the sentence for the three counts are as M
follows.
N Count 1, 8 months; Count 2, 16 months; Count 3, 2 years and N
8 months, that is 32 months.
O Having considered the circumstances of all these offences and O
considering the totality principle, I am of the view that the
sentence imposed on Count 1 and Count 2 should be served
P P
concurrently, whereas the sentence imposed on Count 3 should
be served consecutively to those imposed on Count 1 and 2.
Q Q
So the actual sentence: Count 1, 8 months’ imprisonment;
Count 2, 16 months’ imprisonment. Both sentences to run
R concurrently, making a total of 16 months’ imprisonment. R
S S
T T
U U
CRT22/23.2.2016/TW/ag 7 HCCC 356/2015/Sentence
V V
A A
Count 3, 2 years and 8 months’ imprisonment, to run
consecutively to the 16 months’ imprisonment imposed on
B Count 1 and Count 2, making a total of 4 years’ imprisonment. B
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
CRT22/23.2.2016/TW/ag 8 HCCC 356/2015/Sentence
V V
A A
HCCC 356/2015
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 356 OF 2015
D ----------------- D
HKSAR
E v E
F
MA Chun-king Ricky F
------------------
G Before: Hon Barnes J G
Date: 23 February 2016 at 10.16 am
Present: Mr Harish Melwaney, SPP of the Department of
H Justice, for HKSAR H
Mr Peter C C Yu, instructed by C Y Lam & Co, for
I the accused I
Offence: (1), (2) Possession of arms and ammunition without a
licence (無牌管有槍械及彈藥)
J (3) Attempted possession of arms and ammunition J
without a licence (企圖無牌管有槍械及彈藥)
K K
---------------------------------
Transcript of the Audio Recording
L of the Sentence in the above Case L
---------------------------------
M COURT: The defendant, Ma Chun-king, Ricky, faced three charges M
involving arms and ammunitions. The first two counts
N involved the possession of arms and ammunition without a N
licence, contrary to section 13(1) and (2) of the Firearms
and Ammunition Ordinance, Cap 238 (Counts 1 and 2). The
O last count was an attempted possession of arms and O
ammunition without a licence, contrary to aforesaid section
13(1) and (2) of Cap 238, and section 159G of the Crimes
P P
Ordinance, Cap 200.
Q The defendant pleaded guilty before a magistrate and was Q
committed to the High Court for sentence. I will read out
the admitted facts.
R R
On 28 July 2013, the defendant was intercepted by a Customs
officer at the Shenzhen Bay Control Point when he returned to
S Hong Kong from the mainland. A search of his person revealed S
two black arc-shaped magazines, one with 24 cartridge cases
and the other 26 cartridge cases. Examination conducted
T T
later showed that the two magazines were capable of
functioning in a Chinese-type 56 assault rifle in 7.62 times
U 39 millimetres calibre. The 50 cartridge cases, that is 24 U
CRT22/23.2.2016/TW/ag 1 HCCC 356/2015/Sentence
V V
A A
plus 26, were of 7.62 times 39 millimetres calibre. That is
the facts of Count 1.
B B
The defendant was arrested. Under caution, the defendant
claimed the magazines were toys with decorative ammunition.
C C
He bought those items three to four years back for $3,000
from a shop and he had taken the magazines to show to a
D friend in the mainland. D
The defendant led the police to his home at Cheung On Estate,
E Tsing Yi on the same day, and the police found 10 rifles, 15 E
pistols, 11 revolvers and a batch of magazines and ammunition
inside the defendant’s bedroom. Under caution, the defendant
F claimed they were all toy guns he had collected. F
G
After examination conducted later, the defendant was found to G
have in his possession five airguns capable of discharging
pellets with a muzzle power exceeding 2 joules. The maximum
H muzzle energy being 9.7, 16.08, 2.87, 2.28 and 2.28 joules H
respectively, all exceeding 2 joules. The defendant was also
found to be in possession of three cartridge cases in 7.62
I times 39 millimetres calibre. That is the contents about I
Count 2.
J J
The defendant attended a video-recorded interview on 29 July
2013. During the video-recorded interview, the defendant
K reiterated that in relation to the items found in his K
possession in Count 1, he purchased the cartridges from a
shop for a decorative purpose and that he had brought them
L along to show a friend in the mainland. As to the items L
found at his home, basically the defendant said that a number
M
of the airguns were sold to him by his customer when he was M
operating a shop selling war-game related merchandises.
N The defendant was released on bail pending examination of the N
large number of exhibits. Due to the extended period
required for the examination, the defendant was released
O unconditionally on 3 April 2014. O
On 9 June 2014, a parcel from Thailand aroused the suspicion
P P
of a Customs officer on duty at the Customs Examination Hall
at Chek Lap Kok. Upon opening the parcel, the officer found
Q a 0.38 calibre revolver and a total of 47 rounds of Q
ammunition hidden inside the parcel. The police was notified
to take over the case.
R R
A controlled delivery operation was mounted, and the
proprietor of a shop mentioned as the addressee denied
S knowledge when questioned by the police. But he told the S
police that the defendant had requested him to receive a
T parcel of souvenirs sent from Thailand on his behalf. T
The defendant was arrested by the police and under caution
U the defendant said he bought that 0.38 real gun in Thailand U
CRT22/23.2.2016/TW/ag 2 HCCC 356/2015/Sentence
V V
A A
and mailed it to Hong Kong for his own collection, saying
also that he would not hurt people. That is Count 3.
B B
The defendant attended a video-recorded interview on 11 June
2014 and he gave details of how he came to purchase the gun
C C
and mailed it back to Hong Kong.
D Examination showed the revolver was a 0.38 special calibre US D
origin Ruger Police Service Six Revolver in working order.
The 47 rounds of live ammunition were of 0.38 special
E calibre, suitable for discharge in like calibre revolver such E
as the special revolver seized at the same time.
F The defendant formally admitted and accepted that at all F
material times he had possession of the arms and ammunition
G
referred to (the first two counts) without a licence in Hong G
Kong and that he attempted to possess the arms and ammunition
referred to (Count 3) without a licence in Hong Kong.
H H
Background and mitigation
I The defendant is 43-year-old single man with one previous I
similar conviction in 2007. He was fined $30,000 for the
possession of arms and ammunition without a licence. The
J J
defendant studied up to form five and had worked as a waiter
and a tour guide. In 2006, the defendant operated a shop
K selling simulated military products but the shop closed down K
in 2011. The defendant then became a part-time war game
guide for about a year. He was unemployed since 2013.
L L
Mr Peter Yu, counsel for the defendant, submitted in
mitigation that the defendant is a gun enthusiast who had a
M huge addiction to toy guns. The defendant started to sell M
simulated guns in 1991 and the shop closed after a year. The
N defendant then spent 10 years in Korea. Upon his return, he N
operated another shop selling simulated military products.
He transferred his interest to a friend in 2011 and he became
O a war game instructor, teaching gun safety and war game O
safety.
P As the airguns are too long to be placed inside a wardrobe, P
the defendant placed them outside. The defendant placed caps
Q on the airguns for safety. There were also safety locks so Q
they would not be fired accidentally. He locked his bedroom
door so he was the only person who had access to his bedroom.
R R
As to the commission of the first offence, Count 1, he came
to know a “Sze Fu” at a bicycle shop in Nansha where his
S sister had a flat and he stayed from time to time. He had S
showed photographs of the cartridges to the Sze Fu but the
latter wanted to see the real thing, he therefore brought
T T
along the cartridges to show him in order to show off. He
had no intention of using the cartridges for illegal
U U
CRT22/23.2.2016/TW/ag 3 HCCC 356/2015/Sentence
V V
A A
purposes. The defendant reiterated that the cartridges were
for decorative purposes and were not functional.
B B
As to the Ruger Police Service Six Revolver, the defendant
said this is the first time he attempted to obtain a real
C C
gun. He found it has a collector’s value as such a model is
out of production. He planned to disarm the gun by drilling
D a hole in the handle and extracting all the gun powder from D
the live rounds.
E In relation to defendant’s assertions that the cartridges E
were not functional, that the airguns have safety devices on,
he intended to disarm the Ruger Police Service Six Revolver,
F I asked the prosecution to furnish me with information F
whether the defendant’s assertion is true. I have been
G supplied with such information and I will deal with them when G
I consider the appropriate sentence.
H Mr Yu informed me that the defendant is very remorseful and H
he pleaded guilty at the earliest possible opportunity. His
possession of the arms and ammunition was purely as a
I collector with no intention to use them for any illegal I
purpose.
J J
The defendant, his father, his elder sister, his girlfriend,
and a number of friends wrote to me asking for leniency. The
K defendant himself stressed that he had no intention to commit K
any crime with the arms and ammunition and he had learnt a
bitter lesson. One of his friends, a certain Mr Lo,
L expressed surprise to learn of the defendant’s crime as the L
defendant used to remind Mr Lo the restriction on firearms in
M
Hong Kong. M
I called for a psychologist’s report on the defendant prior
N to sentence. The defendant was described as a reserved and N
egocentric person. The clinical psychologist was of the view
that the defendant had not learned from his previous
O wrongdoings and somehow harbours the idea that he should not O
be criminally liable if the arms and ammunition collected by
him were not for illegal use. His risk of reoffending was
P P
assessed to be moderate.
Q Mr Yu at the adjourned hearing today further mitigated on Q
behalf of the defendant. He confirmed that the defendant
agreed with the psychologist’s report and also the statements
R further provided by the prosecution in relation to the R
assertions made by the defendant.
S Mr Yu stressed that the defendant is not a bad person and he S
finds himself in his present position purely because of the
T interest in collecting guns since he was young. Mr Yu T
accepts there is a risk of the arms falling into the hands of
the wrong people, but stressed that in relation to the
U airguns such risk is not high as the defendant only took out U
CRT22/23.2.2016/TW/ag 4 HCCC 356/2015/Sentence
V V
A A
those airguns with muzzle energy not over 2 joules out to
play war games and he was aware that those with higher muzzle
B power would injure others. B
Sentence
C C
Possession of arms and ammunitions without a licence is a
D serious offence. A person convicted of this offence on D
indictment is liable to a fine of $100,000 and imprisonment
of 14 years. In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the
E Court of Appeal stated (this is taken from the headnote): E
“As a rule, this type of offence would attract a severe
F and deterrent sentence, for the reason that firearms and F
ammunition posed a potentially grave danger to the
G
society. In determining the appropriate sentence, the G
mitigating or aggravating factors included:
H (a) the type of firearm and ammunition involved; H
(b) whether the defendant physically carried the
I firearm and ammunition; I
(c) whether the firearm was loaded;
J J
(d) whether the firearm had been used;
K K
(e) whether the defendant intended to use the
firearm for illegal purposes;
L L
(f) whether the firearm and ammunition were
properly stored or whether they were easily
M accessible by offenders; and M
(g) whether the defendant had a clear record.
N N
The level of sentence depended on the court’s view of
the potential risk posed by the firearm and ammunition
O O
in question, taking into account the circumstances of
the case and the defendant’s background.”
P P
These relevant factors were adopted in a case of Secretary
for Justice v Yan Shen CAAR 10/2011 (unreported). The Court
Q of Appeal in that case stated that societal protection is the Q
paramount consideration in order to maintain the safety of
Hong Kong and an immediate sentence often for a substantial
R R
term, should be imposed except in truly exceptional
circumstances.
S S
The Court of Appeal in a case of Secretary for Justice v
Leung Kwok Chi CAAR 6/2012 (unreported), also referred to the
T above two cases and adopted the same. T
As to the ammunition possessed by the defendant in Count 1,
U I accept that the possession of ammunition is usually less U
CRT22/23.2.2016/TW/ag 5 HCCC 356/2015/Sentence
V V
A A
serious than the possession of arms: see the case of R v Man
Hung Pui [1993] 2 HKC 174. The evidence as confirmed by the
B expert showed that in respect of each of the 50 cartridges, B
primer was not present and the primer pocket was filled with
rubber-like material rendering the ammunition incapable of
C C
being discharged. Each of the magazine could house 30 rounds
of ammunition. The defendant carried 24 and 26 respectively.
D I accept that they were decorative items which the defendant D
wanted to show off to the Sze Fu. There was no evidence that
the defendant possessed them for any illegal purposes.
E E
Bearing in mind that the defendant is not a first offender,
having a previous conviction for the same offence, I am of
F F
the view that a sentence of 12 months’ imprisonment after
trial would have been appropriate.
G G
In respect of Count 2, I accept the possession of air rifles
and air pistols is less serious than the possession of
H unlicensed firearms: see The Queen v Leung Shiu Lun H
(unreported) CACC 609/1996. A total of five air pistols are
involved here. Three of them were just over the statutory
I I
limit of muzzle energy of 2 joules, namely 2.28, 2.28, and
2.87 joules. However, the other two have a higher muzzle
J energy, one at 9.7 joules and the other at 16.08 joules. J
They were not properly kept under lock but rather casually
placed against the wardrobe inside the defendant’s bedroom.
K K
I accept the expert evidence that there were safety locks on
them and I also accept from the photographs that some can
L been seen with a cap on. I accept the defendant had only L
taken those airguns with muzzle power not over 2 joules out
M to play war games and that he usually locked his bedroom door M
to restrict access to his bedroom. Nevertheless, one cannot
discard the possibility of these items falling into the wrong
N hands such as if the place is burgled. N
As to the three cartridges found, again, they were for
O decorative purposes as they were in the same condition as the O
50 found in Count 1: that is according to the evidence of the
P
expert. P
I accept that there is no evidence to show that the
Q defendant’s possession of the arms and ammunition in Count 2 Q
was for any illegal purpose.
R Bearing in mind the defendant already had a previous similar R
conviction and in all the circumstances of this case I am of
the view that a term of 2 years’ imprisonment after trial
S S
would have been appropriate.
T The attempted possession of the unlicensed 0.38 revolver and T
the live ammunition in Count 3 is more serious in this case.
The defendant was already caught in possession of the
U ammunition in Count 1 and arms and ammunition in Count 2 and U
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A A
was under investigation when he committed this attempted
offence. He was granted bail originally but as the
B examination took much longer than expected, the defendant was B
later released without bail.
C C
As the defendant already had one previous conviction of
possession of arms and ammunition without a licence back in
D 2007, he could not possibly have thought that nothing would D
come out of the much larger quantity of arms and ammunition
he was found in possession on this occasion. He therefore
E committed the offence in Count 3 while practically waiting E
for the outcome on the first two counts.
F This is the first time the defendant was found to attempt to F
possess a real gun. I accept the reason he gave for having a
G desire to own such a gun, even though the expert was not able G
to comment on this aspect. I also accept that he intended to
drill holes in the gun handle and in the live bullets to
H render the gun incapable of firing shots. Nevertheless, I H
cannot ignore the risk of this gun falling into wrong hands
before the defendant was able to render the gun inoperative.
I I
Furthermore, should this gun fall into the wrong hands, even
if it had been rendered inoperative, it could still be used
J for illegal purposes. J
Having considered all of the circumstances of this offence, I
K am of the view that a term of 4 years’ imprisonment after K
trial would have been appropriate.
L The defendant pleaded guilty at the earliest available L
opportunity and I will give him the full one-third discount.
M
After the discount, the sentence for the three counts are as M
follows.
N Count 1, 8 months; Count 2, 16 months; Count 3, 2 years and N
8 months, that is 32 months.
O Having considered the circumstances of all these offences and O
considering the totality principle, I am of the view that the
sentence imposed on Count 1 and Count 2 should be served
P P
concurrently, whereas the sentence imposed on Count 3 should
be served consecutively to those imposed on Count 1 and 2.
Q Q
So the actual sentence: Count 1, 8 months’ imprisonment;
Count 2, 16 months’ imprisonment. Both sentences to run
R concurrently, making a total of 16 months’ imprisonment. R
S S
T T
U U
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A A
Count 3, 2 years and 8 months’ imprisonment, to run
consecutively to the 16 months’ imprisonment imposed on
B Count 1 and Count 2, making a total of 4 years’ imprisonment. B
C C
D D
E E
F F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
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