DCCC995/2015 HKSAR v. BAR ROTEM (ALSO KNOWN AS BAR ROTEM DANY) - LawHero
DCCC995/2015
區域法院（刑事）HH Judge Dufton6/7/2016
DCCC995/2015
A A
DCCC 995/2015
B B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 995 OF 2015
D ____________ D
HKSAR
E v E
BAR ROTEM
F F
(also known as BAR ROTEM DANY)
G
____________ G
Before: HH Judge Dufton
H H
Date: 7 July 2016
I Present: Mr Richard Turnbull, counsel on Fiat, I
for HKSAR on 23 May 2016 & 7 July 2016
J
Mr Simon Kwong, SPP (Ag.), of the Department of Justice, J
for HKSAR on 30 May 2016
Mr Mohammed Shah instructed by Wong, Fung & Co,
K K
for the defendant
Offences: (1)-(3) & (5) Dealing in arms without a licence (無牌經營槍械)
L L
(4) Possession of arms without a licence(無牌管有槍械)
M M
REASONS FOR SENTENCE
N N
1. Bar Rotem you are an Israeli national who has resided in Hong
O O
Kong since 2007. You have pleaded guilty to four charges of dealing in
P arms without a licence and one charge of possession of arms without a P
licence, contrary to sections 13 & 14 of the Firearms and Ammunition
Q Q
Ordinance1.
R R
S S
T T
1
Cap 238.
U U
V V
-2-
A A
2. The arms in question are 130 stunning devices, all of the same
B B
design. Photographs of the devices are attached to the evaluation reports
C submitted to court2. I have inspected one of the devices in court. C
D D
3. Full particulars of the offences are set out in the facts admitted
E by you on 23 May 2016. In summary during October 2014 you took E
parcels containing a total of 19 stunning devices to the Tin Yuet Post
F F
Office for posting to Israel by registered mail. Mr Turnbull has further
G explained in court today the details as to the seizing of the 19 stunning G
devices.
H H
4. On 27 October the police were alerted after X-ray screening of
I I
one of the parcels by Customs & Excise at the Air Mail Centre in the
J airport revealed 11 stunning devices. J
K K
5. The following day the police executed a search warrant at your
L home and found two invoices 3 on your computer. The first invoice dated L
12 September 2014 showed the purchase of 30 stunning devices from a
M M
company in China. The second invoice dated 23 October 2014 showed the
N purchase of a further 100 stunning devices from the same company in N
China.
O O
P 6. The police seized 11 stunning devices found inside your home. P
In addition to the 11 stunning devices discovered on 27 October the other 8
Q Q
stunning devices you took to the Tin Yuet Post Office were seized by the
R police at the Air Mail Centre on 28 and 29 October (charges 1-4). R
S S
T T
2
MFI-2.
3
MFI-13.
U U
V V
-3-
A A
7. On 5 November 2014 the police seized from the Post Office a
B B
parcel containing 100 stunning devices which had been sent to you from
C China (charge 5). C
D D
Mitigation
E E
8. In passing sentence I have carefully considered everything said
F on your behalf by Mr Shah together with the letters from your wife, who F
you married in December last year, and from your father and the Chief
G G
4
Rabbi of your Chabad . I take into account that you have a clear record.
H H
9. In mitigation Mr Shah repeats that, which you told the police,
I I
in particular, that you ran a trading company from your home; that you
J purchased the stunning devices from a company in China for sale to J
customers in Israel5; the sale of stunning devices was legal in Israel; that
K K
you had no intention of selling the stunning devices in Hong Kong and that
L you did not know the sale of stun guns was illegal in Hong Kong. L
M M
10. In support that the stunning devices are legal in Israel Mr Shah
N
submits a legal opinion from Nir Yadid Law Offices in Haifa, Israel6. The N
prosecution do not challenge the opinion that the possession of stunning
O O
devices is legal in Israel.
P P
11. Mr Shah emphasises that your dealings in stunning devices
Q were purely commercial transactions with no intention that the stunning Q
devices be sold or used in Hong Kong and that Hong Kong was only used
R R
as a port of transit.
S S
4
MFI-4.
T T
5
Mr Shah says that the stunning devices were specifically for use by females.
6
MFI-5.
U U
V V
-4-
A A
12. Mr Shah submits your criminality is therefore not the same as
B B
the usual offender who is caught in Hong Kong in possession of a stun gun
C or bringing a stun gun into Hong Kong. Mr Shah submits the C
circumstances of your offending are exceptional and that you can properly
D D
be sentenced by way of a heavy financial penalty as opposed to an
E immediate prison sentence7. E
F F
Discussion
G G
13. There is no tariff for these offences sentence very much
H depending on the circumstances of the individual case. The courts have H
however repeated that deterrent sentences are required8. In Secretary for
I I
Justice v Leung Kwok Chi the Court of Appeal recognising that there are
J varying degrees of culpability said that only by adopting a stringent J
approach to the unlicensed possession of arms and ammunition the court
K K
9
can ensure that Hong Kong continues to be a safe city . Similarly in
L L
Secretary for Justice v Yan Shen the Court of Appeal said one of the
M
reasons Hong Kong is a safe city is the strict gun control laws 10. M
N 14. In Secretary for Justice v Yan Shen the Court accepted that N
whilst unlicensed possession of a firearm will normally result in an
O O
immediate custodial term, often a substantial term, there will be truly
P exceptional cases where the imposition of a non-custodial term may be P
justified; although the sentencing tribunal will be expected to furnish a
Q Q
11
sensible and clear explanation for taking that exceptional course .
R R
7
The offences are excepted offence for which a suspended sentence cannot be imposed.
S 8 S
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
9
CAAR 6/2012 (unreported) at §§44 & 45.
T T
10
[2012] 3 HKLRD 652 at §38.
11
Judgment at §35.
U U
V V
-5-
A A
15. One such case often cited is R v Hirai Hirotsugu 12 where
B B
weapons from the Second World War were properly stored and posed no
C risk or threat to the public. C
D D
16. Both these cases involved firearms and not stun guns. In
E HKSAR v Mohamed P Shafik13 the Court of Appeal derived from previous E
judgments of the court14 the following general principles in relation to stun
F F
guns: first, as deterrence, an immediate custodial sentence is required for
G offences of this type; second, there is no tariff for the offence the starting G
point to be adopted to be considered in the light of the facts of each case;
H H
and third, while the court will take into account all the relevant
I circumstances of the case, important considerations which often arise are, I
firstly, the power of the weapon in terms of the voltage that it is capable of
J J
discharging; and secondly, whether there is evidence that the offender or
K some other person has used or may use the weapon for an unlawful purpose K
or to facilitate an unlawful activity.
L L
M
17. The court went on to say even though there may be no present M
intent established on the part of the offender to use the weapon in any such
N N
unlawful way, where there is a real risk in the circumstances that the
O
weapon will fall into the hands of someone who will use it for such purpose, O
15
that is also a factor which will result in a higher starting point of sentence .
P P
Q Q
R R
S 12 S
HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.
13
CACC 224/2014 at §§29-32.
T T
14
HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai CACC 264/2005.
15
Judgment at §32.
U U
V V
-6-
A A
The power of the stunning devices
B B
C
18. The stunning devices being able to deliver a pulsating voltage C
16
of between 56,000 and 213,000 volts , the power is much higher than in
D D
most reported cases. What however is important is what harm such a
E device can cause17. E
F 19. A brief application of the stunning devices would cause a F
person to suffer intense localised pain and muscular spasm. Applied for
G G
more than 3-5 seconds a person may suffer muscle paralysis and remain
H dazed, weak or immobilized for up to several minutes. Other injuries may H
also be sustained from a fall caused by the shock and lacerations as a result
I I
18
of the application of the sharp metal electrodes . From this description it
J is clear that the stunning devices had the potential of causing serious injury. J
K K
The use of the stunning devices
L L
20. Taking into account that 19 of the stunning devices would
M M
have been posted to Israel had they not been intercepted and that
N
instructions in Hebrew are included in the packaging19, I am prepared to N
accept that your intention was to export all the stunning devices to Israel.
O O
P P
Q Q
R R
S 16 S
Admitted facts §13(i). Evaluation reports of 23 devices (MFI-2) were also submitted to court.
17
See for example HKSAR v Mohamed P Shafik at §37.
T T
18
Admitted facts §13(ii). Forensic reports of 19 devices (MFI-7) were also submitted to court.
19
Photocopy of the packaging marked MFI-8.
U U
V V
-7-
A A
Case law
B B
C
21. The reported case law shows that immediate prison sentences C
are imposed with starting points generally ranging from 18 months to
D D
several years20. The lower end of that range is usually where the offender
E is found in possession of a single stun gun with no evidence that the stun E
gun was to be used for an unlawful purpose.
F F
22. In Mr Shah’s experience offenders caught at the airport in
G G
possession of a stun gun usually receive a financial penalty. Some support
H for this can be found in an article submitted by Mr Shah from the South H
China Morning Post dated 11 February this year21. The article suggests
I I
where the stun gun is found in the luggage of a transit passenger a fine is
J usually imposed or a few days imprisonment. With respect possession of a J
single stun gun by a transit passenger is very different to someone who is
K K
involved in importing and exporting stun guns.
L L
23. Custodial sentences are imposed where the passenger is not in
M M
transit but is bringing the stun gun into Hong Kong. In HKSAR v Wong
N Wing Wong22 the appellant was intercepted at the Lo Wu Control Point. He N
was found in possession of a stun gun which he carried for self-defence
O O
having been robbed in China. The Court of Appeal accepting there was no
P evidence to suggest the appellant intended to use the stun gun for an P
unlawful purpose held that the appropriate starting point was 18 months
Q Q
imprisonment.
R R
20
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Yung Ting Chun CACC
S 164/1999; HKSAR v Wong Wing Wong CACC 214/2002; HKSAR v Li Hung Kwan[2003] 1 HKLRD S
204 and HKSAR v Mohamed P Shafik CACC 224/2014.
21
T MFI-6. T
22
CACC 214/2002 (unreported). The judgment is in Chinese with an English digest in the Criminal
Appeals Bulletin, February 2003.
U U
V V
-8-
A A
24. In HKSAR v Li Hung Kwan23 the Court of appeal reviewed a
B B
number of cases concerning stun guns, including HKSAR v Wong Wing
C Wong. The facts were that the appellant, an illegal immigrant, claimed to C
pick up from a construction site a stun gun capable of generating some
D D
12,000 volts into the human body. The Court of Appeal held that a starting
E point of 20 months imprisonment was appropriate in the absence of any E
evidence suggesting the stun gun was to be used for illegal purpose. This
F F
approach to sentencing is also seen in the recent case of HKSAR v
G Mohamed P Shafik. G
H H
25. My research has revealed two cases in the District Court
I (which I referred to Mr Shah) with somewhat similar facts, which give I
some indication of the attitude of the courts to sentencing where the
J J
stunning devices were brought into Hong Kong for subsequent export.
K K
26. In HKSAR v He Honglu24 the defendant pleaded guilty to two
L L
offences of dealing in arms without a licence. The arms were 2,451 stun
M
guns, also described as intended for self-defence use by women. M
N 27. The defendant, a mainland resident, who ran a legitimate N
transportation business arranged on behalf of the owner of the stun guns to
O O
transport them to Hong Kong for export to Andorra. Upon arrival in Hong
P Kong the stun guns were stored in a warehouse pending collection by P
Federal Express for delivery to Andorra. The goods were rejected at the
Q Q
port of entry in Andorra and returned to Hong Kong when Customs &
R Excise officers inspected the cargo and discovered the stun guns. R
S S
T T
23
[2003] 1 HKLRD 204.
24
DCCC 950/2009.
U U
V V
-9-
A A
28. Deputy Judge G Lam (as he then was) whilst accepting that the
B B
defendant probably committed the offences due to his ignorance of the law
C stated as the owner and person-in-charge of a transportation company he C
had the duty to ascertain the legality of his clients’ goods before shipping
D D
them. The judge found the defendant had failed his duty of due diligence.
E On this basis the judge distinguished the case from the typical stun gun E
cases and considered that the defendant’s wrongdoing amounted to a
F F
technical breach. In all the circumstances of the case the judge imposed
G concurrent sentences of 5 months imprisonment. G
H H
29. HKSAR v He Honglu was relied upon in HKSAR v Fang
I Shanzhong25 where the defendant, also a Mainland resident, pleaded guilty I
to one charge of possession of 20 stun guns found in the defendant’s
J J
luggage when taking a flight to Indonesia.
K K
30. Deputy Judge K H Cheang whilst accepting that the defendant
L L
was entrusted to take the guns from the Mainland to a company in
M
Indonesia for security purposes did not accept this was merely a technical M
breach of the relevant statute. Taking into account there were 20 stun guns
N N
the judge adopted a starting point of 30 months imprisonment which he
O
reduced to 20 months by reason of the defendant’s plea of guilty. O
P 31. Unlike the defendants in He Honglu and Fang Shanzhong you P
are a Hong Kong resident and the owner of the stunning devices. Mr Shah
Q Q
says your biggest mistake was failing to check that you needed a licence to
R import and export the stunning devices26. R
S S
25
DCCC 535/2010.
T 26
In the letter from the defendant’s wife it is stated that once the defendant knew possession of arms T
without a licence was illegal he applied and obtained the necessary licences. This Mr Shah explains
is a misunderstanding on the part of the wife and that no licence was ever applied for or obtained.
U U
V V
- 10 -
A A
32. When you posted the parcels you declared that the contents
B B
were flash lights and not stun guns27. Mr Shah explains the declaration was
C to facilitate the smooth posting of the stunning devices and not because you C
knew you did not need a licence.
D D
E 33. When the court asked to see the customs declarations the court E
was told there was no declarations. Only when you told the court there was
F F
did the prosecution look again and find the declarations. This Mr Shah
G submits shows that you did not know a licence was needed otherwise you G
would not have informed the court you had made the customs declarations.
H H
34. In the circumstances I am prepared to proceed on the basis that
I I
you did not know you needed a licence. Ignorance of the law is no defence
J but may constitute mitigation whereby a merciful sentence can be imposed J
as culpability is less than someone who has deliberately flouted the law28.
K K
L 35. I do not however accept that the offences are technical L
offences. You clearly knew you were trading in devices which were
M M
capable of causing injury. In this regard I note that the boxes containing
N the stunning devices describe them as high-power stun guns which produce N
high power pulse electric shock29. You could quite easily have ascertained
O O
whether you needed a licence to import and export these items.
P P
Q Q
R R
S S
27
See envelope MFI-9. The court was informed all the parcels bore the same description.
T T
28
See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214.
29
Photocopy of the packaging marked MFI-8.
U U
V V
- 11 -
A A
36. The case law shows that notwithstanding ignorance of the need
B B
for a licence an immediate custodial sentence will still be imposed30. The
C emphasis is not on whether the offender knew of the need for a licence but C
whether there is any evidence the stunning device was to be used for an
D D
unlawful purpose. Where there is no such evidence a more lenient sentence
E will be imposed. E
F F
37. Unlike in He Honglu the stunning devices were not kept in a
G warehouse pending delivery to Israel. The stunning devices having been G
posted to you in Hong Kong there remained the risk they could be used in
H H
Hong Kong. However, accepting your intention was to sell all the stunning
I devices to Israel, this risk can be said to be very much on the low side. I
J 38. I am nevertheless satisfied in the circumstances of this case a J
deterrent sentence is required. Taking into account there was a total of 130
K K
stunning devices; the power of the stunning devices; your intention was to
L L
sell all the stunning devices to Israel where possession was legal; and the
M
risk they could be used in Hong Kong is very much on the low side, I am M
satisfied bearing in mind the need for individual justice that a starting point
N N
of 18 months imprisonment is appropriate on each charge.
O O
39. Giving you full credit for your pleas of guilty reduces the
P sentences to 12 months imprisonment. P
Q Q
R R
S S
30
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC
551/1998; HKSAR v Hung Chun Kit CACC 579/1998 and HKSAR v Wong Wing Wong CACC
T 214/2002 together with more recent sentence cases in the District Court for example HKSAR v Meng T
Min DCCC 1023/2009; HKSAR v Tang Yanqing DCCC 1394/2010 and HKSAR v Lam Lai Chiu
DCCC 87/2014.
U U
V V
- 12 -
A A
Delay
B B
C
40. Where there has been unreasonable delay in bringing an C
offender to justice this is a mitigating factor which may be taken into
D D
account in sentence. All the circumstances must be looked at including
E whether the offender has acknowledged guilt; where the delay has given E
the offender the opportunity to rehabilitate himself; whether restitution has
F F
been made; whether there was a legitimate expectation the matter will not
G be further pursued; the size of the investigation and whether the time taken G
to bring the case to court was longer than necessary31.
H H
41. You were arrested on 28 October 2014 and charged over 12
I I
months later on 19 November 2015. The delay in charging appears to be
J because of the time taken to obtain the reports on the stunning devices, J
some of which are dated September 2015.
K K
L 42. The matter has now been hanging over you for over 20 months L
during which time Mr Shah informs the court you have suffered from
M M
depression and lost a lot of weight.
N N
43. Whilst the case could have been brought to court earlier I am
O O
satisfied on what I have been told in court there has been no undue delay.
P Nevertheless I am satisfied some credit should be given in sentence for this P
delay32. In the circumstances I further reduce the sentences by 1 month
Q Q
imprisonment.
R R
S S
T T
31
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
32
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
V V
- 13 -
A A
44. You are convicted and sentenced to 11 months imprisonment
B B
on each charge. I am satisfied concurrent sentences are appropriate. The
C total sentence to be served by you is therefore 11 months imprisonment. C
D D
E E
(D. J. DUFTON)
F District Judge 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
V V
A A
DCCC 995/2015
B B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO. 995 OF 2015
D ____________ D
HKSAR
E v E
BAR ROTEM
F F
(also known as BAR ROTEM DANY)
G
____________ G
Before: HH Judge Dufton
H H
Date: 7 July 2016
I Present: Mr Richard Turnbull, counsel on Fiat, I
for HKSAR on 23 May 2016 & 7 July 2016
J
Mr Simon Kwong, SPP (Ag.), of the Department of Justice, J
for HKSAR on 30 May 2016
Mr Mohammed Shah instructed by Wong, Fung & Co,
K K
for the defendant
Offences: (1)-(3) & (5) Dealing in arms without a licence (無牌經營槍械)
L L
(4) Possession of arms without a licence(無牌管有槍械)
M M
REASONS FOR SENTENCE
N N
1. Bar Rotem you are an Israeli national who has resided in Hong
O O
Kong since 2007. You have pleaded guilty to four charges of dealing in
P arms without a licence and one charge of possession of arms without a P
licence, contrary to sections 13 & 14 of the Firearms and Ammunition
Q Q
Ordinance1.
R R
S S
T T
1
Cap 238.
U U
V V
-2-
A A
2. The arms in question are 130 stunning devices, all of the same
B B
design. Photographs of the devices are attached to the evaluation reports
C submitted to court2. I have inspected one of the devices in court. C
D D
3. Full particulars of the offences are set out in the facts admitted
E by you on 23 May 2016. In summary during October 2014 you took E
parcels containing a total of 19 stunning devices to the Tin Yuet Post
F F
Office for posting to Israel by registered mail. Mr Turnbull has further
G explained in court today the details as to the seizing of the 19 stunning G
devices.
H H
4. On 27 October the police were alerted after X-ray screening of
I I
one of the parcels by Customs & Excise at the Air Mail Centre in the
J airport revealed 11 stunning devices. J
K K
5. The following day the police executed a search warrant at your
L home and found two invoices 3 on your computer. The first invoice dated L
12 September 2014 showed the purchase of 30 stunning devices from a
M M
company in China. The second invoice dated 23 October 2014 showed the
N purchase of a further 100 stunning devices from the same company in N
China.
O O
P 6. The police seized 11 stunning devices found inside your home. P
In addition to the 11 stunning devices discovered on 27 October the other 8
Q Q
stunning devices you took to the Tin Yuet Post Office were seized by the
R police at the Air Mail Centre on 28 and 29 October (charges 1-4). R
S S
T T
2
MFI-2.
3
MFI-13.
U U
V V
-3-
A A
7. On 5 November 2014 the police seized from the Post Office a
B B
parcel containing 100 stunning devices which had been sent to you from
C China (charge 5). C
D D
Mitigation
E E
8. In passing sentence I have carefully considered everything said
F on your behalf by Mr Shah together with the letters from your wife, who F
you married in December last year, and from your father and the Chief
G G
4
Rabbi of your Chabad . I take into account that you have a clear record.
H H
9. In mitigation Mr Shah repeats that, which you told the police,
I I
in particular, that you ran a trading company from your home; that you
J purchased the stunning devices from a company in China for sale to J
customers in Israel5; the sale of stunning devices was legal in Israel; that
K K
you had no intention of selling the stunning devices in Hong Kong and that
L you did not know the sale of stun guns was illegal in Hong Kong. L
M M
10. In support that the stunning devices are legal in Israel Mr Shah
N
submits a legal opinion from Nir Yadid Law Offices in Haifa, Israel6. The N
prosecution do not challenge the opinion that the possession of stunning
O O
devices is legal in Israel.
P P
11. Mr Shah emphasises that your dealings in stunning devices
Q were purely commercial transactions with no intention that the stunning Q
devices be sold or used in Hong Kong and that Hong Kong was only used
R R
as a port of transit.
S S
4
MFI-4.
T T
5
Mr Shah says that the stunning devices were specifically for use by females.
6
MFI-5.
U U
V V
-4-
A A
12. Mr Shah submits your criminality is therefore not the same as
B B
the usual offender who is caught in Hong Kong in possession of a stun gun
C or bringing a stun gun into Hong Kong. Mr Shah submits the C
circumstances of your offending are exceptional and that you can properly
D D
be sentenced by way of a heavy financial penalty as opposed to an
E immediate prison sentence7. E
F F
Discussion
G G
13. There is no tariff for these offences sentence very much
H depending on the circumstances of the individual case. The courts have H
however repeated that deterrent sentences are required8. In Secretary for
I I
Justice v Leung Kwok Chi the Court of Appeal recognising that there are
J varying degrees of culpability said that only by adopting a stringent J
approach to the unlicensed possession of arms and ammunition the court
K K
9
can ensure that Hong Kong continues to be a safe city . Similarly in
L L
Secretary for Justice v Yan Shen the Court of Appeal said one of the
M
reasons Hong Kong is a safe city is the strict gun control laws 10. M
N 14. In Secretary for Justice v Yan Shen the Court accepted that N
whilst unlicensed possession of a firearm will normally result in an
O O
immediate custodial term, often a substantial term, there will be truly
P exceptional cases where the imposition of a non-custodial term may be P
justified; although the sentencing tribunal will be expected to furnish a
Q Q
11
sensible and clear explanation for taking that exceptional course .
R R
7
The offences are excepted offence for which a suspended sentence cannot be imposed.
S 8 S
See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.
9
CAAR 6/2012 (unreported) at §§44 & 45.
T T
10
[2012] 3 HKLRD 652 at §38.
11
Judgment at §35.
U U
V V
-5-
A A
15. One such case often cited is R v Hirai Hirotsugu 12 where
B B
weapons from the Second World War were properly stored and posed no
C risk or threat to the public. C
D D
16. Both these cases involved firearms and not stun guns. In
E HKSAR v Mohamed P Shafik13 the Court of Appeal derived from previous E
judgments of the court14 the following general principles in relation to stun
F F
guns: first, as deterrence, an immediate custodial sentence is required for
G offences of this type; second, there is no tariff for the offence the starting G
point to be adopted to be considered in the light of the facts of each case;
H H
and third, while the court will take into account all the relevant
I circumstances of the case, important considerations which often arise are, I
firstly, the power of the weapon in terms of the voltage that it is capable of
J J
discharging; and secondly, whether there is evidence that the offender or
K some other person has used or may use the weapon for an unlawful purpose K
or to facilitate an unlawful activity.
L L
M
17. The court went on to say even though there may be no present M
intent established on the part of the offender to use the weapon in any such
N N
unlawful way, where there is a real risk in the circumstances that the
O
weapon will fall into the hands of someone who will use it for such purpose, O
15
that is also a factor which will result in a higher starting point of sentence .
P P
Q Q
R R
S 12 S
HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.
13
CACC 224/2014 at §§29-32.
T T
14
HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai CACC 264/2005.
15
Judgment at §32.
U U
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A A
The power of the stunning devices
B B
C
18. The stunning devices being able to deliver a pulsating voltage C
16
of between 56,000 and 213,000 volts , the power is much higher than in
D D
most reported cases. What however is important is what harm such a
E device can cause17. E
F 19. A brief application of the stunning devices would cause a F
person to suffer intense localised pain and muscular spasm. Applied for
G G
more than 3-5 seconds a person may suffer muscle paralysis and remain
H dazed, weak or immobilized for up to several minutes. Other injuries may H
also be sustained from a fall caused by the shock and lacerations as a result
I I
18
of the application of the sharp metal electrodes . From this description it
J is clear that the stunning devices had the potential of causing serious injury. J
K K
The use of the stunning devices
L L
20. Taking into account that 19 of the stunning devices would
M M
have been posted to Israel had they not been intercepted and that
N
instructions in Hebrew are included in the packaging19, I am prepared to N
accept that your intention was to export all the stunning devices to Israel.
O O
P P
Q Q
R R
S 16 S
Admitted facts §13(i). Evaluation reports of 23 devices (MFI-2) were also submitted to court.
17
See for example HKSAR v Mohamed P Shafik at §37.
T T
18
Admitted facts §13(ii). Forensic reports of 19 devices (MFI-7) were also submitted to court.
19
Photocopy of the packaging marked MFI-8.
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A A
Case law
B B
C
21. The reported case law shows that immediate prison sentences C
are imposed with starting points generally ranging from 18 months to
D D
several years20. The lower end of that range is usually where the offender
E is found in possession of a single stun gun with no evidence that the stun E
gun was to be used for an unlawful purpose.
F F
22. In Mr Shah’s experience offenders caught at the airport in
G G
possession of a stun gun usually receive a financial penalty. Some support
H for this can be found in an article submitted by Mr Shah from the South H
China Morning Post dated 11 February this year21. The article suggests
I I
where the stun gun is found in the luggage of a transit passenger a fine is
J usually imposed or a few days imprisonment. With respect possession of a J
single stun gun by a transit passenger is very different to someone who is
K K
involved in importing and exporting stun guns.
L L
23. Custodial sentences are imposed where the passenger is not in
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transit but is bringing the stun gun into Hong Kong. In HKSAR v Wong
N Wing Wong22 the appellant was intercepted at the Lo Wu Control Point. He N
was found in possession of a stun gun which he carried for self-defence
O O
having been robbed in China. The Court of Appeal accepting there was no
P evidence to suggest the appellant intended to use the stun gun for an P
unlawful purpose held that the appropriate starting point was 18 months
Q Q
imprisonment.
R R
20
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Yung Ting Chun CACC
S 164/1999; HKSAR v Wong Wing Wong CACC 214/2002; HKSAR v Li Hung Kwan[2003] 1 HKLRD S
204 and HKSAR v Mohamed P Shafik CACC 224/2014.
21
T MFI-6. T
22
CACC 214/2002 (unreported). The judgment is in Chinese with an English digest in the Criminal
Appeals Bulletin, February 2003.
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-8-
A A
24. In HKSAR v Li Hung Kwan23 the Court of appeal reviewed a
B B
number of cases concerning stun guns, including HKSAR v Wong Wing
C Wong. The facts were that the appellant, an illegal immigrant, claimed to C
pick up from a construction site a stun gun capable of generating some
D D
12,000 volts into the human body. The Court of Appeal held that a starting
E point of 20 months imprisonment was appropriate in the absence of any E
evidence suggesting the stun gun was to be used for illegal purpose. This
F F
approach to sentencing is also seen in the recent case of HKSAR v
G Mohamed P Shafik. G
H H
25. My research has revealed two cases in the District Court
I (which I referred to Mr Shah) with somewhat similar facts, which give I
some indication of the attitude of the courts to sentencing where the
J J
stunning devices were brought into Hong Kong for subsequent export.
K K
26. In HKSAR v He Honglu24 the defendant pleaded guilty to two
L L
offences of dealing in arms without a licence. The arms were 2,451 stun
M
guns, also described as intended for self-defence use by women. M
N 27. The defendant, a mainland resident, who ran a legitimate N
transportation business arranged on behalf of the owner of the stun guns to
O O
transport them to Hong Kong for export to Andorra. Upon arrival in Hong
P Kong the stun guns were stored in a warehouse pending collection by P
Federal Express for delivery to Andorra. The goods were rejected at the
Q Q
port of entry in Andorra and returned to Hong Kong when Customs &
R Excise officers inspected the cargo and discovered the stun guns. R
S S
T T
23
[2003] 1 HKLRD 204.
24
DCCC 950/2009.
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A A
28. Deputy Judge G Lam (as he then was) whilst accepting that the
B B
defendant probably committed the offences due to his ignorance of the law
C stated as the owner and person-in-charge of a transportation company he C
had the duty to ascertain the legality of his clients’ goods before shipping
D D
them. The judge found the defendant had failed his duty of due diligence.
E On this basis the judge distinguished the case from the typical stun gun E
cases and considered that the defendant’s wrongdoing amounted to a
F F
technical breach. In all the circumstances of the case the judge imposed
G concurrent sentences of 5 months imprisonment. G
H H
29. HKSAR v He Honglu was relied upon in HKSAR v Fang
I Shanzhong25 where the defendant, also a Mainland resident, pleaded guilty I
to one charge of possession of 20 stun guns found in the defendant’s
J J
luggage when taking a flight to Indonesia.
K K
30. Deputy Judge K H Cheang whilst accepting that the defendant
L L
was entrusted to take the guns from the Mainland to a company in
M
Indonesia for security purposes did not accept this was merely a technical M
breach of the relevant statute. Taking into account there were 20 stun guns
N N
the judge adopted a starting point of 30 months imprisonment which he
O
reduced to 20 months by reason of the defendant’s plea of guilty. O
P 31. Unlike the defendants in He Honglu and Fang Shanzhong you P
are a Hong Kong resident and the owner of the stunning devices. Mr Shah
Q Q
says your biggest mistake was failing to check that you needed a licence to
R import and export the stunning devices26. R
S S
25
DCCC 535/2010.
T 26
In the letter from the defendant’s wife it is stated that once the defendant knew possession of arms T
without a licence was illegal he applied and obtained the necessary licences. This Mr Shah explains
is a misunderstanding on the part of the wife and that no licence was ever applied for or obtained.
U U
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A A
32. When you posted the parcels you declared that the contents
B B
were flash lights and not stun guns27. Mr Shah explains the declaration was
C to facilitate the smooth posting of the stunning devices and not because you C
knew you did not need a licence.
D D
E 33. When the court asked to see the customs declarations the court E
was told there was no declarations. Only when you told the court there was
F F
did the prosecution look again and find the declarations. This Mr Shah
G submits shows that you did not know a licence was needed otherwise you G
would not have informed the court you had made the customs declarations.
H H
34. In the circumstances I am prepared to proceed on the basis that
I I
you did not know you needed a licence. Ignorance of the law is no defence
J but may constitute mitigation whereby a merciful sentence can be imposed J
as culpability is less than someone who has deliberately flouted the law28.
K K
L 35. I do not however accept that the offences are technical L
offences. You clearly knew you were trading in devices which were
M M
capable of causing injury. In this regard I note that the boxes containing
N the stunning devices describe them as high-power stun guns which produce N
high power pulse electric shock29. You could quite easily have ascertained
O O
whether you needed a licence to import and export these items.
P P
Q Q
R R
S S
27
See envelope MFI-9. The court was informed all the parcels bore the same description.
T T
28
See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214.
29
Photocopy of the packaging marked MFI-8.
U U
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A A
36. The case law shows that notwithstanding ignorance of the need
B B
for a licence an immediate custodial sentence will still be imposed30. The
C emphasis is not on whether the offender knew of the need for a licence but C
whether there is any evidence the stunning device was to be used for an
D D
unlawful purpose. Where there is no such evidence a more lenient sentence
E will be imposed. E
F F
37. Unlike in He Honglu the stunning devices were not kept in a
G warehouse pending delivery to Israel. The stunning devices having been G
posted to you in Hong Kong there remained the risk they could be used in
H H
Hong Kong. However, accepting your intention was to sell all the stunning
I devices to Israel, this risk can be said to be very much on the low side. I
J 38. I am nevertheless satisfied in the circumstances of this case a J
deterrent sentence is required. Taking into account there was a total of 130
K K
stunning devices; the power of the stunning devices; your intention was to
L L
sell all the stunning devices to Israel where possession was legal; and the
M
risk they could be used in Hong Kong is very much on the low side, I am M
satisfied bearing in mind the need for individual justice that a starting point
N N
of 18 months imprisonment is appropriate on each charge.
O O
39. Giving you full credit for your pleas of guilty reduces the
P sentences to 12 months imprisonment. P
Q Q
R R
S S
30
See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC
551/1998; HKSAR v Hung Chun Kit CACC 579/1998 and HKSAR v Wong Wing Wong CACC
T 214/2002 together with more recent sentence cases in the District Court for example HKSAR v Meng T
Min DCCC 1023/2009; HKSAR v Tang Yanqing DCCC 1394/2010 and HKSAR v Lam Lai Chiu
DCCC 87/2014.
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A A
Delay
B B
C
40. Where there has been unreasonable delay in bringing an C
offender to justice this is a mitigating factor which may be taken into
D D
account in sentence. All the circumstances must be looked at including
E whether the offender has acknowledged guilt; where the delay has given E
the offender the opportunity to rehabilitate himself; whether restitution has
F F
been made; whether there was a legitimate expectation the matter will not
G be further pursued; the size of the investigation and whether the time taken G
to bring the case to court was longer than necessary31.
H H
41. You were arrested on 28 October 2014 and charged over 12
I I
months later on 19 November 2015. The delay in charging appears to be
J because of the time taken to obtain the reports on the stunning devices, J
some of which are dated September 2015.
K K
L 42. The matter has now been hanging over you for over 20 months L
during which time Mr Shah informs the court you have suffered from
M M
depression and lost a lot of weight.
N N
43. Whilst the case could have been brought to court earlier I am
O O
satisfied on what I have been told in court there has been no undue delay.
P Nevertheless I am satisfied some credit should be given in sentence for this P
delay32. In the circumstances I further reduce the sentences by 1 month
Q Q
imprisonment.
R R
S S
T T
31
See for example HKSAR v Cheung Suet Ting CACC 226/2009.
32
See HKSAR v Wong Ka Wah CACC 260/2006.
U U
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A A
44. You are convicted and sentenced to 11 months imprisonment
B B
on each charge. I am satisfied concurrent sentences are appropriate. The
C total sentence to be served by you is therefore 11 months imprisonment. C
D D
E E
(D. J. DUFTON)
F District Judge F
G G
H H
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J J
K K
L L
M M
N N
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