A A
B B
DCCC 668/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 668 OF 2016 E
F F
-------------------------------
G HKSAR G
v
H H
GURUNG BIKASH
I ------------------------------- I
J J
Before: HH Judge A Kwok
K Date: 8 March 2017 K
Present: Mr J P Chandler, Counsel on fiat, for HKSAR
L L
Mr Alan Lo, instructed by Robertsons, for the defendant
M Offence: Possession of arms without a licence (無牌管有槍械) M
N N
---------------------------------------
O O
REASONS FOR SENTENCE
P
--------------------------------------- P
Q Q
1. After trial, the defendant is convicted of a single charge of
R
possession of arms without a licence, contrary to section 13 of the Firearms R
and Ammunition Ordinance, Cap 238.
S S
T 2. The subject matter of the firearm is a torch-like stun gun. T
U U
V V
-2-
A A
B B
Facts
C C
3. The fact of the case has been set out in my Reasons for
D D
Verdict. As said, it was basically a simple case. At 02:57 on 26 December
E 2015, the defendant was working as a security officer outside the E
Bungalow Club situated at Ground Floor, No 60 of Wyndham Street,
F F
Central when police officers noticed and heard some cracking noises or
G bang sounds and noticed the defendant hiding the torch-like object into his G
inner pocket of the suit jacket. Later the defendant was apprehended and
H H
searched and inside his inner jacket pocket, a black torch-like object about
I 17 cm long was found. The object was later examined by the police and I
determined to be a stun gun (Exhibit P1).
J J
K 4. In his record of interview, the defendant maintained all along K
that he only bought the object from a stall in the night market at Temple
L L
Street as a torch and he only used it for this purpose. He maintained that
M he never knew that the torch was also a stunning device. M
N N
5. The police had later tested P1 and confirmed that it was in
O O
good working order and therefore could be classified as a stunning device.
P
Its peak-to-peak pulsating voltage is about 29 kilovolts. Throughout the P
trial, the defendant did not contend that he hold a licence for the possession
Q Q
of this stunning device.
R R
Mitigation and Sentence
S S
T 6. The defendant is currently 46 years old. He was born and T
raised in Nepal and came to Hong Kong in 1997 and is now a Hong Kong
U U
V V
-3-
A A
B B
permanent resident. He has two marriages. He and his first wife divorced
C in 1997 and they have a son who is 21 years old studying in the UK. He is C
now married to his second wife who is 35 years old in 2010. They have
D D
two young daughters respectively 5 years old and 7 months old. The family
E resides in Yau Ma Tei, Kowloon. E
F F
7. As for his employment record, the defendant has been
G employed as a security guard for 3 years since 24 December 2014. Before G
that, he was also working as a security guard for other employers for about
H H
12 years. His monthly salary is HK$25,000. Each month, he has to pay
I about HK$5,000 to contribute to his parents in Nepal and also his son in I
London as living expenses. The defendant was the sole breadwinner of the
J J
family until he was charged with the present offence. After his arrest, the
K defendant’s wife became working as a part-time merchandiser and earns K
about $10,000 a month. The defendant is only educated up to primary 3 in
L L
Nepal.
M M
8. As to his previous conviction, defendant has no similar
N N
conviction but he has one conviction in 2005 for the charge of possession
O of Part I poison for which he was only fined $2,000. O
P P
9. In mitigation, Mr Lo stressed the fact that the defendant is a
Q first-time offender for this offence. He submitted that the defendant only Q
used the item as a torch and never intended to use the stun gun function for
R R
any illegal purpose and nobody was injured by the stun gun. The defendant
S was very co-operative and tried to give explanations to the police at the S
earliest possible opportunity despite the language barrier.
T T
U U
V V
-4-
A A
B B
10. Mr Lo also stressed that the defendant had gone through one
C of the most dreadful period of his time and no doubt this conviction and C
the sentence that I am going to pass would have a very serious consequence
D D
on his family because the defendant would lose his job and income and his
E wife will need to stop working in order to take care of the two very young E
daughters at home. The family will face huge financial difficulty. The
F F
absence of the defendant from the family during his sentence will also
G impact on the upbringing of the two young daughters. G
H H
11. All in all, Mr Lo asked the court to be as lenient as possible
I and stressed that the chance of the defendant reoffending this offence is I
slim.
J J
K 12. I have also had the opportunity of reading the letters of K
mitigation from the defendant and also his wife.
L L
M Sentencing considerations M
N N
13. Possession of arms without a licence in Hong Kong is of
O course a serious matter. The Court of Appeal has said in the past repeatedly O
that a clear message must be sent to the general public that the courts in
P P
Hong Kong will not treat this type of offence lightly irrespective of the
Q purpose of possessing these arms. An immediate custodial sentence is Q
therefore inevitable even for the fresh offenders.
R R
S 14. In sentencing, I have referred myself to the Court of Appeal S
decision in HKSAR v Mohamed P Shafik (unreported, 5 March 2015)
T T
CACC 224/2014. In that case, the Court of Appeal has said:-
U U
V V
-5-
A A
B B
“29. In respect of Charge 3, the following general principles
C C
derived from the Court of Appeal’s judgments in HKSAR
v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v
D Fan Kwok Wai, CACC 264/2005, unreported, D
10 October 2015, provide useful guidance.
E 30. First, as deterrence, an immediate custodial sentence is E
required for offences of this type. See HKSAR v Li Hung
F Kwan, at §17. F
31. Second, the starting point to be adopted has to be
G considered in the light of the facts of each case. There is G
no tariff for the offence. See HKSAR v Li Hung Kwan,
H
at §17; HKSAR v Fan Kwok Wai, at §8. H
32. Third, while the court will take into account all the
I relevant circumstances of the case, important I
considerations which often arise are, 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 some other person has used or may use
K the weapon for an unlawful purpose or to facilitate an K
unlawful activity. Even though there may be no present
intent established on the part of the offender to use the
L weapon in any such unlawful way, where there is a real L
risk in the circumstances that the weapon will fall into
M the hands of someone who will use it for such purpose, M
that is also a factor which will result in a higher starting
point of sentence. See HKSAR v Fan Kwok Wai, at §9.”
N N
15. In that case, the appellant was a bouncer and had the stun gun
O O
for his own protection. It produced 145,000 volts if applied to a human
P body. The Court of Appeal referred to the forensic medical report P
produced in the case and concluded that although the voltage that the stun
Q Q
gun can discharge is considerably higher than those found in other cases,
R R
it is not clear that it would cause greater harm to the human body
S
correspondingly. S
T T
U U
V V
-6-
A A
B B
16. As to the submission by the appellant’s counsel that the
C defendant did not intend to use the stun gun illegally, the Court of Appeal C
has said that when the appellant was arrested, the stun gun was found being
D D
secured by the belt around his waist. He was carrying the stun gun on his
E person. The risk of him using the stun gun when necessary is real. In these E
circumstances the Court of Appeal concluded that the judge was correct in
F F
drawing the inference as he did.
G G
17. However, the Court of Appeal was of the view that the overall
H H
circumstances of that case is not so serious that it warrants a starting point
I as high as 30 months. In the end, they reduced the sentence from 30 months I
to 24 months instead.
J J
K 18. Coming back to our present case. The voltage in question is K
reported to be high, as high as 209,441 volts, even higher than the
L L
Mohamed P Shafik case that I have just mentioned. However, when I refer
M myself to the forensic medical report (Exhibit P6) in this case, the senior M
forensic pathologist also fairly points out that while the voltage is high, the
N N
numbers of pulse generated per second is much greater. Each pulse
O however lasts a very much shorter period of the time and carries a much O
smaller charge.
P P
Q 19. The author went on to say that one can only surmise that those Q
devices are also designed with non-fatal incapacitation in mind. It is also
R R
unproven that the device with varied electrical property will have exactly
S the same physiological effects. S
T T
U U
V V
-7-
A A
B B
20. Therefore, I have to come to the same conclusion as the Court
C of Appeal did in the Mohamed P Shafik case that although the voltage that C
the stun gun can discharge in this present case is also considerably higher
D D
than those found in other cases, according to the report, it is still not clear
E that it will cause greater harm to the human body correspondingly. E
F F
21. As to the submission that the defendant had never used the
G stun gun for any illegal purpose, in this present case, we have the evidence G
from PW1 that he heard the cracking or bang sounds produced from P1.
H H
This is clear evidence that the stun gun has been actually operated but it is
I however unclear as to the circumstances of why it was operated let alone I
that it was operated for any illegal purpose.
J J
K 22. As the defendant was a bodyguard, a security officer or a K
bouncer of a club by employment, the risk of using it for self-protection
L L
cannot be ignored or overlooked and the fact that there is evidence that the
M stun gun was in operation in the night when he was arrested also means M
that the risk is more apparent than real. In the circumstances, I can only
N N
conclude that the risk of the defendant using the stun gun for illegal purpose
O was still high. O
P P
23. Taking all the circumstances of the case into consideration, of
Q course I do not overlook the impact that this present sentence will no doubt Q
have on the defendant and his family. However, this is a very serious
R R
matter and the defendant must be punished accordingly.
S S
T T
U U
V V
-8-
A A
B B
24. In the end, I consider that the case warrants a starting point of
C 24 months. The defendant pleaded not guilty and there is no other C
mitigating factor that I can identify so the sentence is 24 months’
D D
imprisonment.
E E
F F
G G
H H
( A Kwok )
District Judge
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
B B
DCCC 668/2016
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 668 OF 2016 E
F F
-------------------------------
G HKSAR G
v
H H
GURUNG BIKASH
I ------------------------------- I
J J
Before: HH Judge A Kwok
K Date: 8 March 2017 K
Present: Mr J P Chandler, Counsel on fiat, for HKSAR
L L
Mr Alan Lo, instructed by Robertsons, for the defendant
M Offence: Possession of arms without a licence (無牌管有槍械) M
N N
---------------------------------------
O O
REASONS FOR SENTENCE
P
--------------------------------------- P
Q Q
1. After trial, the defendant is convicted of a single charge of
R
possession of arms without a licence, contrary to section 13 of the Firearms R
and Ammunition Ordinance, Cap 238.
S S
T 2. The subject matter of the firearm is a torch-like stun gun. T
U U
V V
-2-
A A
B B
Facts
C C
3. The fact of the case has been set out in my Reasons for
D D
Verdict. As said, it was basically a simple case. At 02:57 on 26 December
E 2015, the defendant was working as a security officer outside the E
Bungalow Club situated at Ground Floor, No 60 of Wyndham Street,
F F
Central when police officers noticed and heard some cracking noises or
G bang sounds and noticed the defendant hiding the torch-like object into his G
inner pocket of the suit jacket. Later the defendant was apprehended and
H H
searched and inside his inner jacket pocket, a black torch-like object about
I 17 cm long was found. The object was later examined by the police and I
determined to be a stun gun (Exhibit P1).
J J
K 4. In his record of interview, the defendant maintained all along K
that he only bought the object from a stall in the night market at Temple
L L
Street as a torch and he only used it for this purpose. He maintained that
M he never knew that the torch was also a stunning device. M
N N
5. The police had later tested P1 and confirmed that it was in
O O
good working order and therefore could be classified as a stunning device.
P
Its peak-to-peak pulsating voltage is about 29 kilovolts. Throughout the P
trial, the defendant did not contend that he hold a licence for the possession
Q Q
of this stunning device.
R R
Mitigation and Sentence
S S
T 6. The defendant is currently 46 years old. He was born and T
raised in Nepal and came to Hong Kong in 1997 and is now a Hong Kong
U U
V V
-3-
A A
B B
permanent resident. He has two marriages. He and his first wife divorced
C in 1997 and they have a son who is 21 years old studying in the UK. He is C
now married to his second wife who is 35 years old in 2010. They have
D D
two young daughters respectively 5 years old and 7 months old. The family
E resides in Yau Ma Tei, Kowloon. E
F F
7. As for his employment record, the defendant has been
G employed as a security guard for 3 years since 24 December 2014. Before G
that, he was also working as a security guard for other employers for about
H H
12 years. His monthly salary is HK$25,000. Each month, he has to pay
I about HK$5,000 to contribute to his parents in Nepal and also his son in I
London as living expenses. The defendant was the sole breadwinner of the
J J
family until he was charged with the present offence. After his arrest, the
K defendant’s wife became working as a part-time merchandiser and earns K
about $10,000 a month. The defendant is only educated up to primary 3 in
L L
Nepal.
M M
8. As to his previous conviction, defendant has no similar
N N
conviction but he has one conviction in 2005 for the charge of possession
O of Part I poison for which he was only fined $2,000. O
P P
9. In mitigation, Mr Lo stressed the fact that the defendant is a
Q first-time offender for this offence. He submitted that the defendant only Q
used the item as a torch and never intended to use the stun gun function for
R R
any illegal purpose and nobody was injured by the stun gun. The defendant
S was very co-operative and tried to give explanations to the police at the S
earliest possible opportunity despite the language barrier.
T T
U U
V V
-4-
A A
B B
10. Mr Lo also stressed that the defendant had gone through one
C of the most dreadful period of his time and no doubt this conviction and C
the sentence that I am going to pass would have a very serious consequence
D D
on his family because the defendant would lose his job and income and his
E wife will need to stop working in order to take care of the two very young E
daughters at home. The family will face huge financial difficulty. The
F F
absence of the defendant from the family during his sentence will also
G impact on the upbringing of the two young daughters. G
H H
11. All in all, Mr Lo asked the court to be as lenient as possible
I and stressed that the chance of the defendant reoffending this offence is I
slim.
J J
K 12. I have also had the opportunity of reading the letters of K
mitigation from the defendant and also his wife.
L L
M Sentencing considerations M
N N
13. Possession of arms without a licence in Hong Kong is of
O course a serious matter. The Court of Appeal has said in the past repeatedly O
that a clear message must be sent to the general public that the courts in
P P
Hong Kong will not treat this type of offence lightly irrespective of the
Q purpose of possessing these arms. An immediate custodial sentence is Q
therefore inevitable even for the fresh offenders.
R R
S 14. In sentencing, I have referred myself to the Court of Appeal S
decision in HKSAR v Mohamed P Shafik (unreported, 5 March 2015)
T T
CACC 224/2014. In that case, the Court of Appeal has said:-
U U
V V
-5-
A A
B B
“29. In respect of Charge 3, the following general principles
C C
derived from the Court of Appeal’s judgments in HKSAR
v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v
D Fan Kwok Wai, CACC 264/2005, unreported, D
10 October 2015, provide useful guidance.
E 30. First, as deterrence, an immediate custodial sentence is E
required for offences of this type. See HKSAR v Li Hung
F Kwan, at §17. F
31. Second, the starting point to be adopted has to be
G considered in the light of the facts of each case. There is G
no tariff for the offence. See HKSAR v Li Hung Kwan,
H
at §17; HKSAR v Fan Kwok Wai, at §8. H
32. Third, while the court will take into account all the
I relevant circumstances of the case, important I
considerations which often arise are, 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 some other person has used or may use
K the weapon for an unlawful purpose or to facilitate an K
unlawful activity. Even though there may be no present
intent established on the part of the offender to use the
L weapon in any such unlawful way, where there is a real L
risk in the circumstances that the weapon will fall into
M the hands of someone who will use it for such purpose, M
that is also a factor which will result in a higher starting
point of sentence. See HKSAR v Fan Kwok Wai, at §9.”
N N
15. In that case, the appellant was a bouncer and had the stun gun
O O
for his own protection. It produced 145,000 volts if applied to a human
P body. The Court of Appeal referred to the forensic medical report P
produced in the case and concluded that although the voltage that the stun
Q Q
gun can discharge is considerably higher than those found in other cases,
R R
it is not clear that it would cause greater harm to the human body
S
correspondingly. S
T T
U U
V V
-6-
A A
B B
16. As to the submission by the appellant’s counsel that the
C defendant did not intend to use the stun gun illegally, the Court of Appeal C
has said that when the appellant was arrested, the stun gun was found being
D D
secured by the belt around his waist. He was carrying the stun gun on his
E person. The risk of him using the stun gun when necessary is real. In these E
circumstances the Court of Appeal concluded that the judge was correct in
F F
drawing the inference as he did.
G G
17. However, the Court of Appeal was of the view that the overall
H H
circumstances of that case is not so serious that it warrants a starting point
I as high as 30 months. In the end, they reduced the sentence from 30 months I
to 24 months instead.
J J
K 18. Coming back to our present case. The voltage in question is K
reported to be high, as high as 209,441 volts, even higher than the
L L
Mohamed P Shafik case that I have just mentioned. However, when I refer
M myself to the forensic medical report (Exhibit P6) in this case, the senior M
forensic pathologist also fairly points out that while the voltage is high, the
N N
numbers of pulse generated per second is much greater. Each pulse
O however lasts a very much shorter period of the time and carries a much O
smaller charge.
P P
Q 19. The author went on to say that one can only surmise that those Q
devices are also designed with non-fatal incapacitation in mind. It is also
R R
unproven that the device with varied electrical property will have exactly
S the same physiological effects. S
T T
U U
V V
-7-
A A
B B
20. Therefore, I have to come to the same conclusion as the Court
C of Appeal did in the Mohamed P Shafik case that although the voltage that C
the stun gun can discharge in this present case is also considerably higher
D D
than those found in other cases, according to the report, it is still not clear
E that it will cause greater harm to the human body correspondingly. E
F F
21. As to the submission that the defendant had never used the
G stun gun for any illegal purpose, in this present case, we have the evidence G
from PW1 that he heard the cracking or bang sounds produced from P1.
H H
This is clear evidence that the stun gun has been actually operated but it is
I however unclear as to the circumstances of why it was operated let alone I
that it was operated for any illegal purpose.
J J
K 22. As the defendant was a bodyguard, a security officer or a K
bouncer of a club by employment, the risk of using it for self-protection
L L
cannot be ignored or overlooked and the fact that there is evidence that the
M stun gun was in operation in the night when he was arrested also means M
that the risk is more apparent than real. In the circumstances, I can only
N N
conclude that the risk of the defendant using the stun gun for illegal purpose
O was still high. O
P P
23. Taking all the circumstances of the case into consideration, of
Q course I do not overlook the impact that this present sentence will no doubt Q
have on the defendant and his family. However, this is a very serious
R R
matter and the defendant must be punished accordingly.
S S
T T
U U
V V
-8-
A A
B B
24. In the end, I consider that the case warrants a starting point of
C 24 months. The defendant pleaded not guilty and there is no other C
mitigating factor that I can identify so the sentence is 24 months’
D D
imprisonment.
E E
F F
G G
H H
( A Kwok )
District Judge
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