A A
DCCC 348/2016
B B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 348 OF 2016
D ____________ D
HKSAR
E v E
FUNG FUK CHEUNG
F F
____________
G G
Before: HH Judge Dufton
Date: 31 May 2016
H H
Present: Mr Joe Hui, PP, of the Department of Justice, for HKSAR
Mr Kevin Ng of Kevin Ng & Co, assigned by the Director of
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Legal Aid, for the defendant.
Offences: (1) Theft (盜竊罪)
J J
(2) Possession of ammunition without a licence
(無牌管有彈藥)
K K
L
REASONS FOR SENTENCE L
M 1. Fung Fuk Cheung you have pleaded guilty to one charge of M
theft, contrary to section 9 of the Theft Ordinance, 1 and one charge of
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possession of ammunition without a licence, contrary to section 13 of the
O Firearms and Ammunition Ordinance2. O
P P
2. Full particulars of the offences are set out in the facts admitted
Q by you today. In summary at around 9:35 a.m. on 21 January this year Q
whilst in the Wellcome Supermarket on Shanghai Street in Mongkok you
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consumed a bottle of beans valued at $12.90.
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T T
1
Cap 210.
2
Cap 238.
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3. When trying to leave the supermarket the manager of the
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supermarket stopped you and called the police. Under caution you told the
C police you did not have any money to pay for the beans. C
D D
4. The police then conducted a search and found in your bag five
E rounds of live ammunition in .22” LR calibre which were suitable for E
discharge by firearms such as Ruger 10/22 rifles.
F F
Mitigation
G G
H 5. In passing sentence I have carefully considered everything said H
on your behalf by Mr Ng as particularised in his written submission and
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most helpfully in court today.
J J
Shoplifting
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6. Mr Ng says you were hungry at the time and without money
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therefore you consumed the beans. Relying on HKSAR v Tse Wing Kit 3
M Mr Ng submits the proper starting point is 3 months imprisonment. The M
appellant in that case, who had six previous convictions, soon after being
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released from prison, stole a packet of cigarettes worth $50. On appeal the
O court held that the starting point after trial should not exceed 3 months. O
P P
7. You are clearly a persistent offender having appeared in court
Q no less than thirty two times amassing a total of forty five convictions, Q
fifteen of which are for theft, with eleven for shoplifting. You were last
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convicted of two offences of shoplifting in October last year when you
S received consecutive sentences of 3 months and 1 week imprisonment. S
T T
3
[2015] 4 HKLRD 466.
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A A
8. You were released from that sentence on the 16 January this
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year and five days later committed the present offences.
C C
9. Although you have more convictions than the appellant in Tse
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Wing Kit , taking into account the value of the beans is only $12.90 I will
E also take a starting point of three months imprisonment. Giving you full E
credit for your plea of guilty you are convicted and sentenced to 2 months
F F
imprisonment.
G G
Possession of ammunition without a licence
H H
10. There is no tariff for these offences, sentence very much
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depending on the circumstances of the individual case. The courts have
J however repeated that deterrent sentences are required. In HKSAR v Chan J
Chi Fun4 the Court of Appeal held that as a rule this type of offence would
K K
attract a severe and deterrent sentence by reason of the fact that firearms
L and ammunition posed a potentially grave danger to the society. L
M M
11. In Secretary for Justice v Leung Kwok Chi the Court of Appeal
N
recognising that there are varying degrees of culpability said that only by N
adopting a stringent approach to the unlicensed possession of arms and
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ammunition the court can ensure that Hong Kong continues to be a safe
P city5. Similarly in Secretary for Justice v Yan Shen the Court of Appeal P
said one of the reasons Hong Kong is a safe city is the strict gun control
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laws6.
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S S
4
[2006] 1 HKLRD 128.
T T
5
CAAR 6/2012 (unreported) at §§44 & 45.
6
[2012] 3 HKLRD 652 at §38
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A A
12. Factors to consider in determining the appropriate sentence
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include the type of firearm and ammunition involved; whether the firearm
C and ammunition was carried by the defendant; and whether the defendant C
intended to use the firearm and ammunition for illegal purposes.
D D
E 13. You were only in possession of ammunition. I am told that E
you picked up the ammunition earlier that morning7. I have my reservation
F F
that you simply picked up live ammunition in a rear lane nevertheless I
G proceed on that basis there being no other evidence before the court. G
H 14. In R v Man Hung Pui8the Court of Appeal held that possession H
of ammunition is usually less serious than possession of a firearm. The
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court held that a starting point of 4 years imprisonment was appropriate for
J possession of six rounds of live 7.62mm calibre ammunition seized from J
the appellant’s residence.
K K
L 15. I accept Mr Ng’s submission that possession of five rounds of L
live .22” LR calibre ammunition is not as serious the ammunition being
M M
less powerful than 7.62 mm calibre ammunition.
N N
16. Taking into account that there is no evidence you intended to
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use the ammunition for unlawful purpose, I am satisfied the proper starting
P point after trial is 3 years imprisonment. Giving you full credit for your P
plea of guilty you are convicted and sentenced to 2 years imprisonment.
Q Q
R R
S S
T T
7
§10 of Mr Ng’s written submission.
8
CACC 222/1992.
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A A
Totality
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C
17. Both offences are separate and distinct for which consecutive C
sentences are appropriate. I order both sentences to be served consecutively
D D
making a total sentence to be served by you of 2 years and 2 months
E imprisonment which I am satisfied properly reflects your criminal E
culpability on the charges.
F F
G G
H H
(D. J. DUFTON)
District Judge
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M M
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