區域法院（刑事）His Honour Judge D Yau14/1/2019[2019] HKDC 61
合併案件：DCCC1074/2018DCCC223/2018
DCCC1074/2018
A A
B B
DCCC 223 & 1074/2018 (Consolidated)
C [2019] HKDC 61 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 223 AND 1074 OF 2018
F F
G ------------------------------- G
HKSAR
H H
v
I NG KAM HUNG I
-------------------------------
J J
K Before: His Honour Judge D Yau K
Date: 15 January 2019
L L
Present: Miss Yuen Wai Yee Angel, Senior Public Prosecutor (Acting),
M for HKSAR M
Mr Iu Dah Hwa David, instructed by Cheung & Liu, assigned
N N
by the Director of Legal Aid, for the defendant
O Offence: [1] Trafficking in a dangerous drug (販運危險藥物) O
P
[2] Possession of apparatuses fit and intended for the inhalation P
of a dangerous drug (管有適合於及擬用作吸服危險藥物的
Q Q
器具)
R [3] Possession of offensive weapons (管有攻擊性武器) R
[4] Possession of arms without a licence (無牌管有槍械)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. The defendant faced the following Charges: E
F F
Charge 1: Trafficking in a dangerous drug (section 4(1)(a)
G and (3) of the Dangerous Drugs Ordinance, G
Cap 134)
H H
I Charge 2: Possession of apparatuses fit and intended for the I
inhalation of a dangerous drug (section 36(1) and
J J
(2) of the Dangerous Drugs Ordinance, Cap 134)
K K
Charge 3: Possession of offensive weapons (section 17 of
L L
the Summary Offences Ordinance, Cap 228)
M M
Charge 4: Possession of arms without a licence (section 13
N N
of the Firearms and Ammunition Ordinance,
O Cap 238) O
P P
2. The defendant was convicted of Charges 1, 2 and 4 upon his
Q plea of guilty and admission to the amended consolidated summary of Q
facts. On the application of the prosecution, Charge 3 was ordered to be
R R
kept on file, not to be proceeded with against the defendant without the
S leave of court. S
T T
U U
V V
-3-
A A
B B
Summary of facts
C C
3. The defendant was intercepted by police officers at the 6th
D D
floor lift lobby of Un Shing House, Un Chau Estate at 7:44 pm on
E 1 December 2017. He tried to flee at the time but was subdued near Room E
603.
F F
G 4. The defendant had 2 cigarette boxes in his hand, each G
containing a transparent resealable plastic bag with substances inside.
H H
They were later found, respectively, to be 26.2 g of a solid containing
I 4.22 g of methamphetamine and 20 g of a solid containing 3.13 g of I
methamphetamine.
J J
K 5. The defendant confessed to ownership of the drugs after he K
was arrested and cautioned for trafficking in them (Charge 1).
L L
M 6. The defendant was then brought to Room 617 where he M
resided. Upon search of the room, the following items were found on a
N N
desk:
O O
(a) 2 inhaling devices, being bottles with plastic straws and
P P
glass rods inserted (Charge 2);
Q Q
(b) 1 paper box containing an electronic scale, 4 straws,
R R
2 lighters and 2 packs of empty transparent resealable
S plastic bags. S
T T
U U
V V
-4-
A A
B B
7. The defendant was arrested for the possession of the inhaling
C devices. He confessed under caution that they were ‘ice’ bottles and were C
for his own use.
D D
E 8. In addition to the devices and the paraphernalia related to E
trafficking, from inside a recyclable bag placed next to the desk, the Police
F F
found a 17 cm long torch-shaped stun gun (Charge 3), 2 walkie-talkies and
G a black ski mask. G
H H
9. In the subsequent video recorded interviews, the defendant
I claimed that the substance inside the 2 cigarette boxes was the drug I
commonly known as ‘ice’, which he had bought from a friend for $7,000
J J
shortly before his arrest. The plastic bags, scale, lighter and straws were
K tools used for his trafficking. He would sell the re-packaged ‘ice’ to his K
friends for $100 to $200 each.
L L
M 10. The two ‘ice’ bottles were bought around 6 months ago from M
Ap Liu Street. The defendant had been using ‘ice’ for 4 to 5 years,
N N
spending $400 to $500 per week on drugs, consuming once a day.
O O
11. The stun gun was bought for fun by him around one month
P P
ago, also in Ap Liu Street. He knew how to operate it.
Q Q
Previous convictions
R R
S 12. The defendant has 7 previous convictions, two of which were S
for possession of dangerous drugs for the purpose of unlawful trafficking
T T
under the now repealed section 7 of the Dangerous Drugs Ordinance. He
U U
V V
-5-
A A
B B
was sentenced to 3 year’s imprisonment in the District Court in January
C 1988, and then 12 months’ imprisonment in North Kowloon Magistracy in C
August the same year. The later sentence was ordered to run concurrently
D D
to the January sentence.
E E
13. His next drug related conviction was for possession of
F F
dangerous drugs, when he was sentenced to 4 months’ imprisonment in
G April 1997. G
H H
14. The defendant then managed to stay on the right side of the
I law until 4 June 2018, when he was sentenced to 4 months’ imprisonment I
for possession of dangerous drugs. The present Charges 1 and 2 were
J J
committed on 1 December 2017. I was told by the prosecution, and
K confirmed by counsel for the defendant, that the defendant had committed K
the present offences whilst on police bail for the possession case. This is
L L
an aggravating factor that will have to be considered.
M M
Mitigation
N N
O 15. The defendant is 54. He was educated up to Form 1 level in O
Hong Kong. He was unemployed at the time of his arrest, but did work as
P P
a part-time delivery worker before that, earning about $6,000 per month.
Q Q
16. The defendant is married and has 3 children with his wife.
R R
Unfortunately, his wife has been sentenced to a term of imprisonment
S recently, but should be released by August 2020. S
T T
U U
V V
-6-
A A
B B
17. Due to the family circumstances, their 16 year old daughter,
C who is in court today, is now staying at a Juvenile Home. The 11 year old C
son studies in a boarding school in Hong Kong, while their 7 year old son
D D
is residing with a foster family. Despite being separated, I am told that the
E defendant has maintained contact with the children and their relationships E
continue to be harmonious, with letters and a Christmas card to prove so.
F F
G 18. The Chaplin of the defendant also wrote and told the court G
how the defendant is a friendly, responsible and helpful person and sought
H H
leniency on his behalf.
I I
19. Mr Iu told the court that the defendant committed the
J J
trafficking offence because he was in need of money to try to provide better
K for his children. He is truly remorseful and hope to be able to be released K
before his wife so that he can take care of them again. There is no
L L
suggestion that any of the drugs in the trafficking charge were for the
M defendant’s self-consumption. M
N N
20. As for the stun gun, Mr Iu was not able to provide any
O information as to why the 2 walkie-talkies and the ski mask were found O
together with the stun gun inside the bag. It is, however, Mr Iu’s
P P
submissions that they would not be sufficient evidence to prove that the
Q defendant had intended to use or had allowed the stun gun to be used for Q
unlawful purposes.
R R
S S
T T
U U
V V
-7-
A A
B B
Sentencing considerations
C C
21. The maximum sentences for the 3 offences on conviction
D D
upon indictment are as follows:
E E
(1) Trafficking in a dangerous drug: a fine of $5,000,000
F F
and imprisonment for life.
G G
(2) Possession of apparatuses fit and intended for the
H H
inhalation of a dangerous drug: a fine of $10,000 and
I imprisonment for 3 years. I
J (3) Possession of arms without a licence: a fine of J
$100,000 and imprisonment for 14 years
K K
L Charge 1 L
M M
Sentencing tariff for the trafficking offence
N N
O
22. According to the cases of Attorney General v Ching Kwok O
Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun, [2014] 3 HKLRD
P P
691, the sentencing tariff for trafficking in methamphetamine
Q hydrochloride (commonly known as ‘ice’) in quantities of up to Q
10 grammes is 3 to 7 years’ imprisonment.
R R
S 23. An arithmetical application of the tariff would lead to a S
starting point of slightly more than 71 months for the 7.35 g of ‘ice’ in our
T T
present case. I will adopt a starting point of 71 months’ imprisonment.
U U
V V
-8-
A A
B B
C 24. Although this is the defendant’s third conviction for C
trafficking in dangerous drugs, the last two were 30 years ago. Given the
D D
lapse of time, I will not find the fact that he had similar convictions an
E aggravating factor. E
F F
25. There is, however, one serious aggravating factor in that the
G defendant committed the present offence whilst on Police bail for the G
offence of possession of dangerous drugs. For this aggravating factor, I
H H
will enhance the sentence by 7 months’ imprisonment, taking the sentence
I to 78 months’ imprisonment. I
J J
26. The only mitigating factor is the defendant’s timely guilty
K plea. For this, he is entitled to the full one-third discount and is, therefore, K
sentenced to 52 months’ imprisonment on Charge 1.
L L
M Charge 2 M
N N
27. There are only 2 devices involved. I adopt a starting point of
O 6 months’ imprisonment1, which is discounted to 4 months’ imprisonment O
after granting the full one-third discount for his timely plea. Given the fact
P P
that I will be ordering this sentence to run concurrently to the sentence in
Q Charge 1, even though the aggravating factor of committing the offence Q
whilst on Police bail also applies, I have not enhanced this sentence. There
R R
are no other aggravating or mitigating factors.
S S
T T
1
See HKSAR v Lee Yuen Ping, Maggie, CACC 242/2000, at paragraph 16, as approved in HKSAR v
Eriksson Rickard Wilhelm, CACC 454/2002, at paragraph 13.
U U
V V
-9-
A A
B B
Charge 4
C C
28. The stun gun in question is capable of generating a peak-to-
D D
peak voltage of 151,426 volts. It is a portable device designed to disable a
E person by means of an electric shock applied either with or without direct E
contact with the person. If applied to the chest, carotid or spine, the shock
F F
could alter heart rhythms, cause severe pain, disrupt blood flow to the brain
G or to stimulate motor neurons, resulting in stunning and disabling effects G
on the subject.
H H
I 29. The portability of this device suggests that its possession can I
easily be concealed. Its power to disable a person without the need of direct
J J
contact makes it more difficult to anticipate or avoid an attack, or to
K apprehend the attacker. K
L L
30. In the case of HKSAR v Mohamed P Shafik, CACC 224/2014,
M the Court of Appeal applied the general principles derived from its earlier M
judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR
N N
v Fan Kwok Wai, CACC 25654/2005 and confirmed, first, that an
O immediate custodial sentence is required for offences of this type. O
P P
31. Secondly, the starting point to be adopted differs with the facts
Q of each case. Q
R R
32. Thirdly, important considerations include the power of the
S stun gun in terms of discharge voltage; whether it had been or may be used S
for an unlawful purpose; and whether there is a real risk that the weapon
T T
will fall into the hands of someone who will use it for such purpose.
U U
V V
- 10 -
A A
B B
C 33. In the case of Shafik, the stun gun was able to generate a peak- C
to-peak voltage of 145 kilovolts, which was much more powerful than
D D
those in the earlier two cases, but less than the 151.426 kilovolts in our
E present case. E
F F
34. In Shafik, the applicant had the stun gun secured on a belt
G around his waist at the time of his arrest and the finding of the stun gun. G
He had also explicitly admitted that he worked as a bouncer and had the
H H
stun gun for self-defence. The Court agreed with the trial judge’s finding
I that there was a real risk of him using the stun gun when necessary. I
J J
35. The Court found that a proper starting point was 24 months’
K imprisonment. K
L L
36. In the case of Li Hung Kwan, the stun gun was being carried
M around by the applicant inside a waist bag at the time of his arrest at a M
construction site, where he went to look for a job. There was expert
N N
evidence to say that, at around 35,000 volt of pulsating voltage, the power
O output of the battery powered device was regarded as ‘small’. O
P P
37. The Court described the power of the stun gun as in the
Q middle-lower range. They also found that there was no evidence to suggest Q
that the applicant had or may use it for unlawful purposes. After reviewing
R R
a number of earlier decisions, the Court found that a proper starting point
S in the circumstances was that of 20 months’ imprisonment. S
T T
U U
V V
- 11 -
A A
B B
38. In our present case, while it does seem suspicious that the stun
C gun was found together with 2 walkie-talkies and a ski mask inside a bag, C
I would find there is insufficient evidence to suggest that there was any real
D D
risk of the defendant using the stun gun for any unlawful purpose, or that
E someone else might have access to it for such a purpose. E
F F
39. The power of the stun gun is, however, 4.3 times that of the
G one in Li Hung Kwan, and 6426 volts higher than the one in Shafik. This G
must be taken into consideration when deciding on the appropriate
H H
sentence.
I I
40. Under the circumstances, I find that a proper starting point is
J J
that of 21 months’ imprisonment.
K K
41. The defendant committed the offence whilst on Police bail.
L L
However, given the different nature of the offences, and given that there is
M no evidence to suggest that the defendant had bought the stun gun whilst M
he was on Police bail, I will not enhance this sentence on this basis.
N N
O 42. The defendant is, therefore, sentenced to 14 months’ O
imprisonment after granting him the full one-third discount for his guilty
P P
plea.
Q Q
Totality
R R
S 43. First of all, in accordance with the principles enounced in the S
above referred to cases of HKSAR v Lee Yuen Ping, Maggie and HKSAR v
T T
U U
V V
- 12 -
A A
B B
Eriksson Rickard Wilhelm, I order that the sentence for Charge 2 be served
C wholly concurrently with that of Charge 1. C
D D
44. Taking a step back, I find that 7 months of the sentence for
E Charge 4 should run consecutively to the sentences for Charges 1 and 2, E
the balance concurrently.
F F
G 45. The defendant is, therefore, sentenced to a total of 59 (being G
52+7) months’ imprisonment.
H H
I I
J J
K ( Douglas TH Yau ) K
District Judge
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 223 & 1074/2018 (Consolidated)
C [2019] HKDC 61 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 223 AND 1074 OF 2018
F F
G ------------------------------- G
HKSAR
H H
v
I NG KAM HUNG I
-------------------------------
J J
K Before: His Honour Judge D Yau K
Date: 15 January 2019
L L
Present: Miss Yuen Wai Yee Angel, Senior Public Prosecutor (Acting),
M for HKSAR M
Mr Iu Dah Hwa David, instructed by Cheung & Liu, assigned
N N
by the Director of Legal Aid, for the defendant
O Offence: [1] Trafficking in a dangerous drug (販運危險藥物) O
P
[2] Possession of apparatuses fit and intended for the inhalation P
of a dangerous drug (管有適合於及擬用作吸服危險藥物的
Q Q
器具)
R [3] Possession of offensive weapons (管有攻擊性武器) R
[4] Possession of arms without a licence (無牌管有槍械)
S S
T T
U U
V V
-2-
A A
B B
---------------------------------------
C REASONS FOR SENTENCE C
---------------------------------------
D D
E 1. The defendant faced the following Charges: E
F F
Charge 1: Trafficking in a dangerous drug (section 4(1)(a)
G and (3) of the Dangerous Drugs Ordinance, G
Cap 134)
H H
I Charge 2: Possession of apparatuses fit and intended for the I
inhalation of a dangerous drug (section 36(1) and
J J
(2) of the Dangerous Drugs Ordinance, Cap 134)
K K
Charge 3: Possession of offensive weapons (section 17 of
L L
the Summary Offences Ordinance, Cap 228)
M M
Charge 4: Possession of arms without a licence (section 13
N N
of the Firearms and Ammunition Ordinance,
O Cap 238) O
P P
2. The defendant was convicted of Charges 1, 2 and 4 upon his
Q plea of guilty and admission to the amended consolidated summary of Q
facts. On the application of the prosecution, Charge 3 was ordered to be
R R
kept on file, not to be proceeded with against the defendant without the
S leave of court. S
T T
U U
V V
-3-
A A
B B
Summary of facts
C C
3. The defendant was intercepted by police officers at the 6th
D D
floor lift lobby of Un Shing House, Un Chau Estate at 7:44 pm on
E 1 December 2017. He tried to flee at the time but was subdued near Room E
603.
F F
G 4. The defendant had 2 cigarette boxes in his hand, each G
containing a transparent resealable plastic bag with substances inside.
H H
They were later found, respectively, to be 26.2 g of a solid containing
I 4.22 g of methamphetamine and 20 g of a solid containing 3.13 g of I
methamphetamine.
J J
K 5. The defendant confessed to ownership of the drugs after he K
was arrested and cautioned for trafficking in them (Charge 1).
L L
M 6. The defendant was then brought to Room 617 where he M
resided. Upon search of the room, the following items were found on a
N N
desk:
O O
(a) 2 inhaling devices, being bottles with plastic straws and
P P
glass rods inserted (Charge 2);
Q Q
(b) 1 paper box containing an electronic scale, 4 straws,
R R
2 lighters and 2 packs of empty transparent resealable
S plastic bags. S
T T
U U
V V
-4-
A A
B B
7. The defendant was arrested for the possession of the inhaling
C devices. He confessed under caution that they were ‘ice’ bottles and were C
for his own use.
D D
E 8. In addition to the devices and the paraphernalia related to E
trafficking, from inside a recyclable bag placed next to the desk, the Police
F F
found a 17 cm long torch-shaped stun gun (Charge 3), 2 walkie-talkies and
G a black ski mask. G
H H
9. In the subsequent video recorded interviews, the defendant
I claimed that the substance inside the 2 cigarette boxes was the drug I
commonly known as ‘ice’, which he had bought from a friend for $7,000
J J
shortly before his arrest. The plastic bags, scale, lighter and straws were
K tools used for his trafficking. He would sell the re-packaged ‘ice’ to his K
friends for $100 to $200 each.
L L
M 10. The two ‘ice’ bottles were bought around 6 months ago from M
Ap Liu Street. The defendant had been using ‘ice’ for 4 to 5 years,
N N
spending $400 to $500 per week on drugs, consuming once a day.
O O
11. The stun gun was bought for fun by him around one month
P P
ago, also in Ap Liu Street. He knew how to operate it.
Q Q
Previous convictions
R R
S 12. The defendant has 7 previous convictions, two of which were S
for possession of dangerous drugs for the purpose of unlawful trafficking
T T
under the now repealed section 7 of the Dangerous Drugs Ordinance. He
U U
V V
-5-
A A
B B
was sentenced to 3 year’s imprisonment in the District Court in January
C 1988, and then 12 months’ imprisonment in North Kowloon Magistracy in C
August the same year. The later sentence was ordered to run concurrently
D D
to the January sentence.
E E
13. His next drug related conviction was for possession of
F F
dangerous drugs, when he was sentenced to 4 months’ imprisonment in
G April 1997. G
H H
14. The defendant then managed to stay on the right side of the
I law until 4 June 2018, when he was sentenced to 4 months’ imprisonment I
for possession of dangerous drugs. The present Charges 1 and 2 were
J J
committed on 1 December 2017. I was told by the prosecution, and
K confirmed by counsel for the defendant, that the defendant had committed K
the present offences whilst on police bail for the possession case. This is
L L
an aggravating factor that will have to be considered.
M M
Mitigation
N N
O 15. The defendant is 54. He was educated up to Form 1 level in O
Hong Kong. He was unemployed at the time of his arrest, but did work as
P P
a part-time delivery worker before that, earning about $6,000 per month.
Q Q
16. The defendant is married and has 3 children with his wife.
R R
Unfortunately, his wife has been sentenced to a term of imprisonment
S recently, but should be released by August 2020. S
T T
U U
V V
-6-
A A
B B
17. Due to the family circumstances, their 16 year old daughter,
C who is in court today, is now staying at a Juvenile Home. The 11 year old C
son studies in a boarding school in Hong Kong, while their 7 year old son
D D
is residing with a foster family. Despite being separated, I am told that the
E defendant has maintained contact with the children and their relationships E
continue to be harmonious, with letters and a Christmas card to prove so.
F F
G 18. The Chaplin of the defendant also wrote and told the court G
how the defendant is a friendly, responsible and helpful person and sought
H H
leniency on his behalf.
I I
19. Mr Iu told the court that the defendant committed the
J J
trafficking offence because he was in need of money to try to provide better
K for his children. He is truly remorseful and hope to be able to be released K
before his wife so that he can take care of them again. There is no
L L
suggestion that any of the drugs in the trafficking charge were for the
M defendant’s self-consumption. M
N N
20. As for the stun gun, Mr Iu was not able to provide any
O information as to why the 2 walkie-talkies and the ski mask were found O
together with the stun gun inside the bag. It is, however, Mr Iu’s
P P
submissions that they would not be sufficient evidence to prove that the
Q defendant had intended to use or had allowed the stun gun to be used for Q
unlawful purposes.
R R
S S
T T
U U
V V
-7-
A A
B B
Sentencing considerations
C C
21. The maximum sentences for the 3 offences on conviction
D D
upon indictment are as follows:
E E
(1) Trafficking in a dangerous drug: a fine of $5,000,000
F F
and imprisonment for life.
G G
(2) Possession of apparatuses fit and intended for the
H H
inhalation of a dangerous drug: a fine of $10,000 and
I imprisonment for 3 years. I
J (3) Possession of arms without a licence: a fine of J
$100,000 and imprisonment for 14 years
K K
L Charge 1 L
M M
Sentencing tariff for the trafficking offence
N N
O
22. According to the cases of Attorney General v Ching Kwok O
Hung [1991] 2 HKLR 125 and HKSAR v Tam Yi Chun, [2014] 3 HKLRD
P P
691, the sentencing tariff for trafficking in methamphetamine
Q hydrochloride (commonly known as ‘ice’) in quantities of up to Q
10 grammes is 3 to 7 years’ imprisonment.
R R
S 23. An arithmetical application of the tariff would lead to a S
starting point of slightly more than 71 months for the 7.35 g of ‘ice’ in our
T T
present case. I will adopt a starting point of 71 months’ imprisonment.
U U
V V
-8-
A A
B B
C 24. Although this is the defendant’s third conviction for C
trafficking in dangerous drugs, the last two were 30 years ago. Given the
D D
lapse of time, I will not find the fact that he had similar convictions an
E aggravating factor. E
F F
25. There is, however, one serious aggravating factor in that the
G defendant committed the present offence whilst on Police bail for the G
offence of possession of dangerous drugs. For this aggravating factor, I
H H
will enhance the sentence by 7 months’ imprisonment, taking the sentence
I to 78 months’ imprisonment. I
J J
26. The only mitigating factor is the defendant’s timely guilty
K plea. For this, he is entitled to the full one-third discount and is, therefore, K
sentenced to 52 months’ imprisonment on Charge 1.
L L
M Charge 2 M
N N
27. There are only 2 devices involved. I adopt a starting point of
O 6 months’ imprisonment1, which is discounted to 4 months’ imprisonment O
after granting the full one-third discount for his timely plea. Given the fact
P P
that I will be ordering this sentence to run concurrently to the sentence in
Q Charge 1, even though the aggravating factor of committing the offence Q
whilst on Police bail also applies, I have not enhanced this sentence. There
R R
are no other aggravating or mitigating factors.
S S
T T
1
See HKSAR v Lee Yuen Ping, Maggie, CACC 242/2000, at paragraph 16, as approved in HKSAR v
Eriksson Rickard Wilhelm, CACC 454/2002, at paragraph 13.
U U
V V
-9-
A A
B B
Charge 4
C C
28. The stun gun in question is capable of generating a peak-to-
D D
peak voltage of 151,426 volts. It is a portable device designed to disable a
E person by means of an electric shock applied either with or without direct E
contact with the person. If applied to the chest, carotid or spine, the shock
F F
could alter heart rhythms, cause severe pain, disrupt blood flow to the brain
G or to stimulate motor neurons, resulting in stunning and disabling effects G
on the subject.
H H
I 29. The portability of this device suggests that its possession can I
easily be concealed. Its power to disable a person without the need of direct
J J
contact makes it more difficult to anticipate or avoid an attack, or to
K apprehend the attacker. K
L L
30. In the case of HKSAR v Mohamed P Shafik, CACC 224/2014,
M the Court of Appeal applied the general principles derived from its earlier M
judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR
N N
v Fan Kwok Wai, CACC 25654/2005 and confirmed, first, that an
O immediate custodial sentence is required for offences of this type. O
P P
31. Secondly, the starting point to be adopted differs with the facts
Q of each case. Q
R R
32. Thirdly, important considerations include the power of the
S stun gun in terms of discharge voltage; whether it had been or may be used S
for an unlawful purpose; and whether there is a real risk that the weapon
T T
will fall into the hands of someone who will use it for such purpose.
U U
V V
- 10 -
A A
B B
C 33. In the case of Shafik, the stun gun was able to generate a peak- C
to-peak voltage of 145 kilovolts, which was much more powerful than
D D
those in the earlier two cases, but less than the 151.426 kilovolts in our
E present case. E
F F
34. In Shafik, the applicant had the stun gun secured on a belt
G around his waist at the time of his arrest and the finding of the stun gun. G
He had also explicitly admitted that he worked as a bouncer and had the
H H
stun gun for self-defence. The Court agreed with the trial judge’s finding
I that there was a real risk of him using the stun gun when necessary. I
J J
35. The Court found that a proper starting point was 24 months’
K imprisonment. K
L L
36. In the case of Li Hung Kwan, the stun gun was being carried
M around by the applicant inside a waist bag at the time of his arrest at a M
construction site, where he went to look for a job. There was expert
N N
evidence to say that, at around 35,000 volt of pulsating voltage, the power
O output of the battery powered device was regarded as ‘small’. O
P P
37. The Court described the power of the stun gun as in the
Q middle-lower range. They also found that there was no evidence to suggest Q
that the applicant had or may use it for unlawful purposes. After reviewing
R R
a number of earlier decisions, the Court found that a proper starting point
S in the circumstances was that of 20 months’ imprisonment. S
T T
U U
V V
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A A
B B
38. In our present case, while it does seem suspicious that the stun
C gun was found together with 2 walkie-talkies and a ski mask inside a bag, C
I would find there is insufficient evidence to suggest that there was any real
D D
risk of the defendant using the stun gun for any unlawful purpose, or that
E someone else might have access to it for such a purpose. E
F F
39. The power of the stun gun is, however, 4.3 times that of the
G one in Li Hung Kwan, and 6426 volts higher than the one in Shafik. This G
must be taken into consideration when deciding on the appropriate
H H
sentence.
I I
40. Under the circumstances, I find that a proper starting point is
J J
that of 21 months’ imprisonment.
K K
41. The defendant committed the offence whilst on Police bail.
L L
However, given the different nature of the offences, and given that there is
M no evidence to suggest that the defendant had bought the stun gun whilst M
he was on Police bail, I will not enhance this sentence on this basis.
N N
O 42. The defendant is, therefore, sentenced to 14 months’ O
imprisonment after granting him the full one-third discount for his guilty
P P
plea.
Q Q
Totality
R R
S 43. First of all, in accordance with the principles enounced in the S
above referred to cases of HKSAR v Lee Yuen Ping, Maggie and HKSAR v
T T
U U
V V
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A A
B B
Eriksson Rickard Wilhelm, I order that the sentence for Charge 2 be served
C wholly concurrently with that of Charge 1. C
D D
44. Taking a step back, I find that 7 months of the sentence for
E Charge 4 should run consecutively to the sentences for Charges 1 and 2, E
the balance concurrently.
F F
G 45. The defendant is, therefore, sentenced to a total of 59 (being G
52+7) months’ imprisonment.
H H
I I
J J
K ( Douglas TH Yau ) K
District Judge
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V