A A
B B
DCCC 1019/2015
C IN THE DISTRICT COURT OF THE C
HONG KONG SPECIAL ADMINISTRATIVE REGION
D D
CRIMINAL CASE NO. 1019 OF 2015
E ____________ E
F F
HKSAR
G
v G
PINZON FANDINO EDISON ARLEY
H ___________ H
I Before: HH Judge Dufton I
Date: 1 April 2016
J J
Present: Mr Richard Donald, counsel on fiat, for HKSAR
Mr Oliver Davies instructed by Henry Fok & Co,
K assigned by the Director of Legal Aid, for the defendant K
Offence: Carrying an imitation firearm with intent to commit an
L arrestable offence L
(攜帶仿製火器意圖犯可逮捕的罪行)
M M
REASONS FOR SENTENCE
N N
1. Edison Arley Pinzon Fandino you are a national of Colombia
O who came to Hong Kong on 31 July last year. You were permitted to stay O
P
for three months until 29 October. On 16 September you were arrested P
for carrying an air gun, which on examination was found to be an
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imitation firearm. On Wednesday you pleaded guilty to carrying an
R
imitation firearm, with intent to commit an arrestable offence, contrary to R
section 18(1) of the Firearms and Ammunition Ordinance1, the maximum
S S
sentence for which is life imprisonment. Sentence was adjourned to this
T afternoon. T
1
Cap 238.
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2. Full particulars of the offence are set out in the facts admitted
C by you on Wednesday. In summary in the early afternoon of 16 C
September last year the police were carrying out anti-crime patrol on
D D
King’s Road in North Point when they saw you leaving a McDonald’s
E restaurant. E
F 3. The police observed that you appeared to be holding F
something inside your trousers. Finding your conduct suspicious the
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police intercepted you. Upon search the police found a gun in your
H possession. Following your arrest you were taken to Chungking H
Mansions where you had been staying. During a search of the premises
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the police found a bottle of plastic pellets and a bottle of gas for use with
J J
the gun.
K K
4. Subsequent examination of the gun revealed this to be a
L pressurized gas powered air gun which is commonly available for sale in L
Hong Kong. The air gun was designed to discharge 6mm calibre plastic
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balls with muzzle energy less than two joules. Photographs of the air gun
N together with the examination report have been submitted to court. N
O O
5. In a video interview you told the police that you purchased
P the gun together with the plastic pellets and the bottle of gas from a toy P
shop on Nathan Road, as a gift for your nephew. On the day of your
Q Q
arrest you said you went to a park in North Point which two Colombian
R friends had taken you before. You only had $600 which was insufficient R
to return to Colombia therefore you went to the park intending to use the
S S
gun to scare people into giving you money. At the time of your arrest you
T had not scared anyone or obtained any money. T
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A A
B B
Mitigation
C C
6. In passing sentence I take into account everything said on
D your behalf by Mr Davies, in particular that you are very young, only 19. D
You have no criminal record in Hong Kong or Colombia. This however
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carries little weight where the offender is a visitor to Hong Kong.
F F
7. Mr Davies explains that your father purchased you a one-
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way ticket to Hong Kong and that when you ran out of money you
H decided to use the gun to try scare people into giving you money so you H
could buy an air ticket to return to Colombia. Mr Davies submits this was
I I
not well planned and that it is doubtful whether you would have carried
J out your plan. J
K K
8. Mr Davies further submits that it is highly unlikely you
L
would have harmed anyone. That may well be, however, having seen the L
gun in court on Wednesday there can be no question that the appearance
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of the gun is very realistic and that anyone confronted with a demand for
N money would have been very frightened on seeing the gun. N
O 9. You are 19. Section 109A of the Criminal Procedure O
Ordinance2, Chapter 221 provides no court shall sentence a person of or
P P
over 16 and under 21 years of age to imprisonment unless the court is of
Q the opinion that no other method of dealing with such person is Q
appropriate. This provision does not apply to carrying an imitation
R R
firearm with intent to commit an arrestable offence, which is an excepted
S offence. A court must nevertheless still exercise great care before S
sentencing a young offender.
T T
2
Cap 221.
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A A
B B
10. There are no guidelines as to sentence. In my view deterrent
C sentences are required not only to deter the individual but also to deter C
those persons like-minded to use firearms, real or imitation, in the course
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of crime. In Secretary for Justice v Lee Chun Ho, Jeef 3 the Court of
E Appeal in emphasising the seriousness of offences involving the use of E
firearms said:
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“It must be recognized that robbery with the use of
G firearms is particularly hideous because, firstly they cause G
much greater fear to the victims, and secondly and perhaps
more importantly, the use of firearms by the robbers will
H increase the chance of the law enforcement officers resorting to H
their own, thus exposing the public to serious risks of death or
I personal injury. I
The fact that the firearm is just an imitation firearm
J makes little difference as on the spur of the moment; neither J
the victims nor the law enforcement officers may appreciate
K that it is an imitation firearm.” K
11. Mr Davies submitting that this is at the lower end of the scale
L L
of section 18 offences places reliance on the decision in Attorney General
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v Lam Wing Kwong4, where the Court of Appeal declined to interfere with
N
a sentence of 2 years imprisonment. The facts were that the respondent N
aged 25 and of a clear record, was the front seat passenger in a car which
O O
was slowly driven around the same area of Yaumatei several times. When
P the police stopped the car the respondent was found in possession of an P
imitation pistol which he said was for use in a robbery.
Q Q
12. The Court of Appeal was of the view that a starting point of
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five to six years would have been correct. The court went on to say:
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T 3
T
[2010] 1 HKLRD 84 @§§22 & 23.
4
[1993] 2 HKCLR 227.
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“Giving him the benefit of the doubt and assuming a starting
point of five years as appropriate, a sentence of two and a half
C years could not have been challenged on review. Here the C
sentence imposed by the judge was two years. Without in any
way seeking to minimize the seriousness of this offence we feel
D that some considerable latitude should be given to the trial judge D
in exercising his judgment in imposing sentence, particularly, as
E in this case a relatively young person is involved. The difference E
between two-and-a-half years, a sentence which though on the
side of leniency would have been unchallengeable, and one of
F two years is not such as merits interference by this court. By a F
fine margin this application for review is refused.”
G G
5
13. In HKSAR v Chen Peihong , drawn to the attention of the
H court by Mr Donald, the applicant was arrested when carrying an imitation H
firearm, a knife and a screwdriver. The applicant confessed that he had
I I
come to Hong Kong from the Mainland the day before intending to
J commit robbery, although no specific robbery had been planned. J
K K
14. The trial judge relying on the decision in Attorney General v
L Lam Wing Kwong adopted a five year starting point. The Court of Appeal L
in dismissing the appeal against sentence affirmed that Attorney General v
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Lam Wing Kwong remained good law in relation to matters of sentence for
N section 18 offences. N
O O
15. Having been in Hong Kong for nearly two months it cannot
P be said you came to Hong Kong to commit crime. The courts have P
however said that the commission of crime by visitors is an aggravating
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feature of sentence. In HKSAR v Obiagwu Oluchukwu Christian 6 the
R Court of Appeal said that the commission of robbery by visitors to Hong R
Kong can be regarded as an aggravating feature.
S S
T 5
T
CACC 479/2004.
6
CACC 307/2009.
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A A
B B
16. I am satisfied there is a need to deter tourists who, having
C come to Hong Kong with insufficient funds or soon after run out of C
money, think that they can then commit serious crime to obtain money. In
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HKSAR v Aguilar Garcia Milner Javier7 the Court of Appeal said that the
E sentencing judge was entitled to determine that visitors who come to E
Hong Kong but run out of funds are to be deterred from resorting to theft
F F
to ameliorate their plight.
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17. Taking into account all the circumstances of the case
H including that the air gun was an imitation gun; no actual robbery had H
taken place; and that you are a visitor, I am satisfied the proper starting
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point after trial is 5 years imprisonment. Giving you full credit for your
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plea of guilty reduces the sentence to 3 years and 4 months imprisonment.
K K
18. Mr Davies submits by reason of your very young age I should
L impose a sentence lower than that imposed in Attorney General v Lam L
Wing Kwong. This would mean giving you a discount from the starting
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point in excess of 60%.
N N
19. In Secretary for Justice v Lee Chun Ho, Jeef 8 the Court of
O O
Appeal reiterated that the one-third discount is usually to be regarded as
P the high watermark of the discount given to a defendant pleading guilty in P
good time.
Q Q
20. The courts have accepted that extreme youth is a factor which
R R
9
can reduce sentence. In R v Yau Wing Hong , a robbery case, the Court of
S S
7
CACC 485/2012.
T 8
T
Judgment §37.
9
[1995] 3 HKC 95.
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A A
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Appeal said that a person over the age of 15 years is not a person of
C extreme youth. The courts have however stressed that there is no C
10 11
inflexible rule in this regard . In R v Lee Kong & another , also a
D D
robbery case, the Court of Appeal said that the precise age of an offender
E is not always material and that persons in their late teens should be dealt E
with differently from those in their early 20's and beyond.
F F
21. Although you are not of extreme youth having regard to what
G G
was said in Attorney General v Lam Wing Kwong that considerable
H latitude should be given to the trial judge in exercising his judgment in H
imposing sentence where a relatively young person is involved, I am
I I
prepared to extend leniency to you and reduce the sentence by 6 months.
J J
22. You are convicted and sentenced to 2 years and 10 months
K K
imprisonment.
L L
M M
N N
(D. J. DUFTON)
O
District Judge O
P P
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R R
S S
T T
10
HKSAR v Chan Lai Sing & another CACC 100/2002.
11
CACC 556/1994.
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