A A
HCCC 358/2017
[2018] HKCFI 218
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 358 OF 2017
D D
-----------------
HKSAR
E E
v
F F
TSIANG On-yan
G ------------------ G
Before: Hon Toh J
H Date: 16 January 2018 at 10.03 am H
Present: Mr Vincent Wong, SPP of the Department of Justice,
I for HKSAR I
Mr Osmond Lam, instructed by Ivan Tang & Co,
for the accused
J Offence: (1) Possession of a dangerous drug (管有危險藥物) J
(2) Possession of arms and ammunition without licence
K
(無牌管有槍械及彈藥) K
L --------------------------------- L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N N
COURT: The defendant had pleaded guilty in the magistrate’s
court to one count of possession of a dangerous drug,
O namely 359.61 grammes of cannabis in herbal form. He had O
also pleaded guilty to the 2nd charge of possession of arms
and ammunition without a license, contrary to section 13(1)
P and (2) of the Firearms and Ammunition Ordinance, Cap 238. P
The particulars are that on 18 June 2016, at the Tun Yu
Q Farm, in Lok Ma Chau, New Territories, he had in his Q
possession one self-loading pistol in 0.45 inch ACP calibre
with a magazine and 13 rounds of live ammunition in 0.45
R ACP calibre without a license. The defendant was committed R
to this court for sentence.
S The facts disclose that on 17 June 2016, a search was S
conducted at the Tun Yu Farm in Lok Ma Chau. The farm
consisted of a fish pond surrounded by wooden huts and
T T
container huts. In one of the container huts decorated as
an office, on a table, were found the cannabis in herbal
U form, subject matter of the 1st charge. A herb grinder, U
CRT11/16.1.2018/TW 1 HCCC 358/2017(1)/Sentence
V V
A A
two electronic scales, a cigarette rolling device,
cigarette papers and two packs of transparent resealable
B plastic bag. The defendant was arrested and cautioned B
after which he said the cannabis buds were for his own
consumption.
C C
The estimated retail value of the cannabis was in the
D region of about HK$40,276. D
Also found in the same search was the gun and ammunition
E concealed inside some wooden planks on the periphery of the E
bottom of a wooden hut at the farm. This gun and
ammunition was found contained inside a plastic bag inside
F the black bag and it was subsequently examined by a F
forensic firearms examiner.
G G
The self-loading pistol was inserted with a magazine but
there was no cartridge found in the magazine. The pistol
H was in working order and the live ammunition, there were 13 H
rounds of live ammunition in the same calibre as the
pistol. The examination report indicated that the pistol
I was a Chinese origin Norinco model 1911-A1 compact self- I
loading pistol in 0.45 ACP calibre. The pistol was test
J fired and found to be in working order and that the live J
ammunition were found to be suitable for discharge from the
pistol. DNA was also conducted on the trigger, hammer and
K handle of the pistol and the conclusion was that the human K
DNA found could have originated from the defendant.
L The farm itself was on a piece of land which was rented by L
a Mr Ngan in July 2013. The defendant was interested in
M
renting this land from Mr Ngan and in November 2013, a M
tenancy agreement was made between Mr Ngan and the
defendant to rent the farm for a period of three years.
N The farm was owned by a company called Tun Yu Farm and the N
directors of the company were a Mr So and a Mr Chan. Mr So
said he knew the defendant since they were children and Mr
O So was interested to invest in the farming business and so O
Mr So and Mr Chan provided some money for the farming
P
business and the farm was operated and managed by the P
defendant.
Q The defendant was aged 54 at the time and he has a criminal Q
record although nothing similar.
R In mitigation, Mr Lam disclosed that the defendant is R
married and has a wife and son and daughters all who are
working and the farm is what we call an ecological farm and
S S
also the defendant raised sheep on it. In mitigation, Mr
Lam said that the defendant is a gun enthusiast and that he
T was trained by the British army in Hong Kong in the 80s. T
He became a gun enthusiast after that and that he found the
gun and decided to keep it for his own pleasure.
U U
CRT11/16.1.2018/TW 2 HCCC 358/2017(1)/Sentence
V V
A A
Mr Lam submitted that the gun and ammunition were well
hidden and pray in aid the case of HKSAR v Chan Chi Fun
B [2006] 1 HKLRD128. B
In that case, the Court of Appeal said that in determining
C C
the appropriate sentence that some of the mitigating or
aggravating factors included the type of firearm and
D ammunition involved, whether the defendant physically D
carried the firearm and ammunition, whether the firearm is
loaded, whether the firearm had been used, whether the
E defendant intended to use the firearm for illegal purposes, E
whether the firearm and ammunition were properly stored or
whether they were easily accessible by offenders and
F F
whether the defendant had a clear record. The level of
sentence depended on the court’s view of the potential risk
G posed by the firearm and ammunition in question. Taking G
into account the circumstances of the case and the
defendant’s background.
H H
In that case, as observed by the Court of Appeal, the
firearms were stored in a safe place such as a safety box
I I
and none of the firearms had been loaded. In this case,
the police did not need to open any safety box. It was
J hidden - of course it was hidden - under some planks but J
could be accessible to someone searching the premises.
What is even more dangerous which I consider to be an
K aggravating factor is the fact that live ammunition was K
found together with it. Although the defendant claimed that
he was not going to use it for any illegal activities.
L L
However, anyone finding the pistol together with the live
ammunition could do considerable damage and endanger lives
M in Hong Kong and therefore the Court of Appeal has even M
said that this type of sentence calls for a deterrent
sentence.
N N
In fact in HKSAR v Chan Hoi Ngam in [2000] 1HKC618, the
Court of Appeal said in the headnote that:
O O
“Hong Kong’s firearm sentencing policy had been
P
designed to act as a strong deterrent to those with no P
right to have such weapons. It was easy to see that
there were cases where a judge might take a lower
Q starting point than 12 years for offences brought Q
under this section depending on the circumstances of
the case. The sentencing judge had a considerable
R discretion to reduce the period of imprisonment to be R
served even where a 12 years starting point after
S trial was taken.” S
The Court of Appeal referred to the cases of Queen v Ho
T Chun in [1992] 1 HKCLR 86 and Queen v Milhench in [1996] 1 T
HKC628. Following that, Chan Hoi Ngam had been followed by
more up to date cases, for example, in HKSAR v Hu Quanwu
U [2011] 4 HKC 331. U
CRT11/16.1.2018/TW 3 HCCC 358/2017(1)/Sentence
V V
A A
In that case, the Court of Appeal said in headnote 1 that:
B “Possession of arms and ammunition was an extremely B
serious offence in Hong Kong. The proper sentence on
a plea of guilty for a simple possession of a gun
C C
would be 6 years. Where there was an intention to use
the gun for an unlawful purpose something in excess of
D 6 years would be appropriate. Possession of a loaded D
firearm or possession of both an unloaded firearm and
ammunition, was an aggravating factor which might lead
E to the enhancement of the usual sentence.” E
The Court of Appeal in that case also did refer to the case
F of Chan Hoi Ngam and also following Chan Hoi Ngam was the F
case of HKSAR v Terry Cheung Sik Wai in [2011] HKCU 2309.
G In that case, the Court of Appeal said in its discussion at G
paragraph 17:
H “Possession of arms and ammunition without a licence H
is always considered a serious offence and harshly
dealt with by courts in Hong Kong. It is perhaps
I because of such an approach that Hong Kong remains a I
relatively safe city.
J J
Queen v Ho Chun [1992] 1 HKCLR 86 has been regarded as
a sentencing guideline case for possession of firearms
K and ammunition without a licence. In giving the K
judgment of the court, Silke VP said that the Court of
Appeal would be unlikely to interfere with sentences
L of at least 8 years’ imprisonment after a plea of L
guilty. That means a 12-year starting point was
M
considered appropriate. Such an approach was approved M
by the Court of Appeal in R v Milhench in [1996]1
HKC628, HKSAR v Yau Siu Kai in [2001] 1 HKC 427 and
N HKSAR v Chan Hoi Ngam in [2000] 1 HKC618.” N
So it is clear that the Court of Appeal have all along been
O terribly concerned about this type of offence and the O
considerable harm it can do to our society and the fact
that a deterrent sentence is absolutely necessary.
P P
I have considered and taken into account all the cases and
Q the circumstances of this case and I determine that in Q
relation to the 1st offence that a starting point sentence
should be one of 3 months, reduced to 2 months for his
R plea. R
Now, in the 2nd charge, the problem is that there were 13
S live rounds found together with the pistol. It was not S
locked up anywhere. It was just concealed under some
T planks in a hut. It was easily accessible to someone T
searching for it. The pistol was in working order and
fully capable of discharging the 13 live rounds. So a
U deterrent sentence is necessary in this case and I U
CRT11/16.1.2018/TW 4 HCCC 358/2017(1)/Sentence
V V
A A
therefore consider that a 12 years starting point is
appropriate and reducing it to 8 years because of the
B defendant’s plea. B
I have to consider the totality principle and after having
C C
considered that I have decided to make both sentences
concurrent.
D D
So the defendant goes to prison for 8 years.
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
CRT11/16.1.2018/TW 5 HCCC 358/2017(1)/Sentence
V V
A A
HCCC 358/2017
[2018] HKCFI 218
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 358 OF 2017
D D
-----------------
HKSAR
E E
v
F F
TSIANG On-yan
G ------------------ G
Before: Hon Toh J
H Date: 16 January 2018 at 10.03 am H
Present: Mr Vincent Wong, SPP of the Department of Justice,
I for HKSAR I
Mr Osmond Lam, instructed by Ivan Tang & Co,
for the accused
J Offence: (1) Possession of a dangerous drug (管有危險藥物) J
(2) Possession of arms and ammunition without licence
K
(無牌管有槍械及彈藥) K
L --------------------------------- L
Transcript of the Audio Recording
of the Sentence in the above Case
M --------------------------------- M
N N
COURT: The defendant had pleaded guilty in the magistrate’s
court to one count of possession of a dangerous drug,
O namely 359.61 grammes of cannabis in herbal form. He had O
also pleaded guilty to the 2nd charge of possession of arms
and ammunition without a license, contrary to section 13(1)
P and (2) of the Firearms and Ammunition Ordinance, Cap 238. P
The particulars are that on 18 June 2016, at the Tun Yu
Q Farm, in Lok Ma Chau, New Territories, he had in his Q
possession one self-loading pistol in 0.45 inch ACP calibre
with a magazine and 13 rounds of live ammunition in 0.45
R ACP calibre without a license. The defendant was committed R
to this court for sentence.
S The facts disclose that on 17 June 2016, a search was S
conducted at the Tun Yu Farm in Lok Ma Chau. The farm
consisted of a fish pond surrounded by wooden huts and
T T
container huts. In one of the container huts decorated as
an office, on a table, were found the cannabis in herbal
U form, subject matter of the 1st charge. A herb grinder, U
CRT11/16.1.2018/TW 1 HCCC 358/2017(1)/Sentence
V V
A A
two electronic scales, a cigarette rolling device,
cigarette papers and two packs of transparent resealable
B plastic bag. The defendant was arrested and cautioned B
after which he said the cannabis buds were for his own
consumption.
C C
The estimated retail value of the cannabis was in the
D region of about HK$40,276. D
Also found in the same search was the gun and ammunition
E concealed inside some wooden planks on the periphery of the E
bottom of a wooden hut at the farm. This gun and
ammunition was found contained inside a plastic bag inside
F the black bag and it was subsequently examined by a F
forensic firearms examiner.
G G
The self-loading pistol was inserted with a magazine but
there was no cartridge found in the magazine. The pistol
H was in working order and the live ammunition, there were 13 H
rounds of live ammunition in the same calibre as the
pistol. The examination report indicated that the pistol
I was a Chinese origin Norinco model 1911-A1 compact self- I
loading pistol in 0.45 ACP calibre. The pistol was test
J fired and found to be in working order and that the live J
ammunition were found to be suitable for discharge from the
pistol. DNA was also conducted on the trigger, hammer and
K handle of the pistol and the conclusion was that the human K
DNA found could have originated from the defendant.
L The farm itself was on a piece of land which was rented by L
a Mr Ngan in July 2013. The defendant was interested in
M
renting this land from Mr Ngan and in November 2013, a M
tenancy agreement was made between Mr Ngan and the
defendant to rent the farm for a period of three years.
N The farm was owned by a company called Tun Yu Farm and the N
directors of the company were a Mr So and a Mr Chan. Mr So
said he knew the defendant since they were children and Mr
O So was interested to invest in the farming business and so O
Mr So and Mr Chan provided some money for the farming
P
business and the farm was operated and managed by the P
defendant.
Q The defendant was aged 54 at the time and he has a criminal Q
record although nothing similar.
R In mitigation, Mr Lam disclosed that the defendant is R
married and has a wife and son and daughters all who are
working and the farm is what we call an ecological farm and
S S
also the defendant raised sheep on it. In mitigation, Mr
Lam said that the defendant is a gun enthusiast and that he
T was trained by the British army in Hong Kong in the 80s. T
He became a gun enthusiast after that and that he found the
gun and decided to keep it for his own pleasure.
U U
CRT11/16.1.2018/TW 2 HCCC 358/2017(1)/Sentence
V V
A A
Mr Lam submitted that the gun and ammunition were well
hidden and pray in aid the case of HKSAR v Chan Chi Fun
B [2006] 1 HKLRD128. B
In that case, the Court of Appeal said that in determining
C C
the appropriate sentence that some of the mitigating or
aggravating factors included the type of firearm and
D ammunition involved, whether the defendant physically D
carried the firearm and ammunition, whether the firearm is
loaded, whether the firearm had been used, whether the
E defendant intended to use the firearm for illegal purposes, E
whether the firearm and ammunition were properly stored or
whether they were easily accessible by offenders and
F F
whether the defendant had a clear record. The level of
sentence depended on the court’s view of the potential risk
G posed by the firearm and ammunition in question. Taking G
into account the circumstances of the case and the
defendant’s background.
H H
In that case, as observed by the Court of Appeal, the
firearms were stored in a safe place such as a safety box
I I
and none of the firearms had been loaded. In this case,
the police did not need to open any safety box. It was
J hidden - of course it was hidden - under some planks but J
could be accessible to someone searching the premises.
What is even more dangerous which I consider to be an
K aggravating factor is the fact that live ammunition was K
found together with it. Although the defendant claimed that
he was not going to use it for any illegal activities.
L L
However, anyone finding the pistol together with the live
ammunition could do considerable damage and endanger lives
M in Hong Kong and therefore the Court of Appeal has even M
said that this type of sentence calls for a deterrent
sentence.
N N
In fact in HKSAR v Chan Hoi Ngam in [2000] 1HKC618, the
Court of Appeal said in the headnote that:
O O
“Hong Kong’s firearm sentencing policy had been
P
designed to act as a strong deterrent to those with no P
right to have such weapons. It was easy to see that
there were cases where a judge might take a lower
Q starting point than 12 years for offences brought Q
under this section depending on the circumstances of
the case. The sentencing judge had a considerable
R discretion to reduce the period of imprisonment to be R
served even where a 12 years starting point after
S trial was taken.” S
The Court of Appeal referred to the cases of Queen v Ho
T Chun in [1992] 1 HKCLR 86 and Queen v Milhench in [1996] 1 T
HKC628. Following that, Chan Hoi Ngam had been followed by
more up to date cases, for example, in HKSAR v Hu Quanwu
U [2011] 4 HKC 331. U
CRT11/16.1.2018/TW 3 HCCC 358/2017(1)/Sentence
V V
A A
In that case, the Court of Appeal said in headnote 1 that:
B “Possession of arms and ammunition was an extremely B
serious offence in Hong Kong. The proper sentence on
a plea of guilty for a simple possession of a gun
C C
would be 6 years. Where there was an intention to use
the gun for an unlawful purpose something in excess of
D 6 years would be appropriate. Possession of a loaded D
firearm or possession of both an unloaded firearm and
ammunition, was an aggravating factor which might lead
E to the enhancement of the usual sentence.” E
The Court of Appeal in that case also did refer to the case
F of Chan Hoi Ngam and also following Chan Hoi Ngam was the F
case of HKSAR v Terry Cheung Sik Wai in [2011] HKCU 2309.
G In that case, the Court of Appeal said in its discussion at G
paragraph 17:
H “Possession of arms and ammunition without a licence H
is always considered a serious offence and harshly
dealt with by courts in Hong Kong. It is perhaps
I because of such an approach that Hong Kong remains a I
relatively safe city.
J J
Queen v Ho Chun [1992] 1 HKCLR 86 has been regarded as
a sentencing guideline case for possession of firearms
K and ammunition without a licence. In giving the K
judgment of the court, Silke VP said that the Court of
Appeal would be unlikely to interfere with sentences
L of at least 8 years’ imprisonment after a plea of L
guilty. That means a 12-year starting point was
M
considered appropriate. Such an approach was approved M
by the Court of Appeal in R v Milhench in [1996]1
HKC628, HKSAR v Yau Siu Kai in [2001] 1 HKC 427 and
N HKSAR v Chan Hoi Ngam in [2000] 1 HKC618.” N
So it is clear that the Court of Appeal have all along been
O terribly concerned about this type of offence and the O
considerable harm it can do to our society and the fact
that a deterrent sentence is absolutely necessary.
P P
I have considered and taken into account all the cases and
Q the circumstances of this case and I determine that in Q
relation to the 1st offence that a starting point sentence
should be one of 3 months, reduced to 2 months for his
R plea. R
Now, in the 2nd charge, the problem is that there were 13
S live rounds found together with the pistol. It was not S
locked up anywhere. It was just concealed under some
T planks in a hut. It was easily accessible to someone T
searching for it. The pistol was in working order and
fully capable of discharging the 13 live rounds. So a
U deterrent sentence is necessary in this case and I U
CRT11/16.1.2018/TW 4 HCCC 358/2017(1)/Sentence
V V
A A
therefore consider that a 12 years starting point is
appropriate and reducing it to 8 years because of the
B defendant’s plea. B
I have to consider the totality principle and after having
C C
considered that I have decided to make both sentences
concurrent.
D D
So the defendant goes to prison for 8 years.
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
CRT11/16.1.2018/TW 5 HCCC 358/2017(1)/Sentence
V V