A A
B DCCC 50/2015 B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO 50 OF 2015
D D
----------------------
E HKSAR E
v
F F
Sin Ka-leung
G G
----------------------
H Before: HH Judge C P Pang H
Date: 30 April 2015
Present: Mr Simon Kwong, PP of the Department of Justice, for
I I
HKSAR
Mr Graham Harris, SC, leading Mr S W Lee, instructed
J by Morley Chow Seto, for the defendant J
Offence: Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. A month ago, the defendant pleaded guilty before me to
O one charge of possession of arms without a licence, for his O
possession of 10 airguns which were found at his home on
P P
25 April 2013.
Q Q
2. Under section 2 of the Firearms and Ammunition
R Ordinance, Cap. 238, “arms” includes an air rifle, airgun or air R
pistol from which any shot, bullet or missile can be discharged
S with a muzzle energy greater than 2 joules. S
T T
3. Seven out of the 10 airguns could produce muzzle
energy from 2.32 to 10.67 joules. The remaining three were
U U
powerful ones as they could produce energy of 22.97, 36.77 and
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A A
42.81 joules respectively. Some pellets for the airguns were
B B
also seized from the defendant’s premises.
C C
4. The defendant is aged 49 with a clear record. He is
D married with no children. D
E 5. Mr Harris, Senior Counsel, in mitigation on behalf of E
the defendant immediately recognised the seriousness of the
F offence and accepted that an immediate custodial sentence would F
be the norm of the sentencing options. However, he sought to
G G
persuade the court that there were exceptional circumstances in
H
this case and invited the court to take an exceptional course-by H
remanding the defendant in custody for the preparation of full
I pre-sentencing reports including a Government Psychologist’s I
report and a Community Service Order Suitability report.
J J
6. To justify this suggestion, the defence called
K K
Professor Peter Lee, a Chartered Clinical and Health
Psychologist, to give evidence in court. His expertise is not
L L
challenged.
M M
7. Practising in the Hong Kong Sanatorium and Hospital,
N Professor Lee is also the Honorary Consultant of Queen Mary N
Hospital, Honorary Professor of the Department of Psychiatry,
O O
HKU and a Professor of the Department of Psychology, CUHK. After
four sections of psychological assessments of the defendant,
P P
Professor Lee came to the opinions in his report dated 2 October
Q 2013. The salient points can be summarised as follows:- Q
R 1) Firstly, while not amounting to the full-blown R
disorder, the defendant presents with characteristics
S S
of the Asperger’s Disorder. His obsessional interest
in airguns borders on abnormality and is likely an
T T
integral part of this underlying psychological
U disorder. U
CRT24/30.4.2015/ES 2 DCCC 50/2015/Sentence
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A A
2) Secondly, given his social isolation, autistic-like
B B
perspective and his one track mind, he was impaired in
his judgment regarding the potential hazards of his
C C
acts.
D D
3) Thirdly, the defendant did not present with any
E other high risk signs of psychopathic individuals. E
F 4) Fourthly, the likelihood he would re-offend is very F
low.
G G
H
Professor Lee’s evidence in court is in line with the opinions H
in his report.
I I
8. Having heard the submissions of Mr Harris and the
J evidence of Professor Lee, I was persuaded that I should call J
for reports for more background information of the defendant and
K K
for a Government Psychologist to comment on the opinions of
Professor Lee. I also agreed with the suggestion, which was one
L L
properly made, of remanding the defendant in custody as an
M immediate custodial sentence is the norm for the serious charge M
which the defendant pleaded guilty to unless there are wholly
N exceptional circumstances. The Probation officer preparing the N
background report of the defendant was also invited to comment
O O
on the defendant’s suitability to perform a Community Service
Order. I gave a clear warning to the defendant that imprisonment
P P
as an option of sentence was in my mind.
Q Q
9. On 21 April, the Probation officer’s report and a
R Psychologist’s report prepared by Miss Winnie Wong were R
available to both parties. The Probation Officer’s report
S S
revealed a full background of the defendant. He is aged 49,
married, living with his wife with no children at the premises
T T
they own where the airguns were found. The mortgage of the self-
U owned flat has been fully paid off. U
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A A
10. The defendant used to run his own printing machinery
B B
companies which were said to be a lucrative business until 2012
when he sold off shares of one of his companies and remained
C C
self-employed in his own printing machinery company. He is now
D living in a semi-retired style. He and his wife are now engaged D
in volunteer work every week.
E E
11. The Probation officer describes the defendant as a
F hardworking man who has all along led a stable and law-abiding F
life with his wife. In tears, the defendant pleaded before her
G G
for a non-custodial sentence. In view of his regretful attitude,
H
his clear record and his willingness to perform unpaid work to H
compensate for his wrongdoing, a Community Service Order as a
I sentencing option is recommended to the court. I
J 12. In the report dated 17 April 2015, the Government J
Psychologist, Miss Wong, is generally in agreement with the
K K
opinions of Professor Lee save and except that she found
insufficient evidence to suggest that the defendant suffers from
L L
autistic spectrum such as Asperger’s disorder. According to her
M clinical assessment, there is no evidence to suggest significant M
deficits in the defendant’s emotional management or impulsive
N control. The defendant, however, shows insight to his offending N
behaviour and is not at significant risk for violent
O O
re-offending.
P P
13. In view of her difference in opinion as to the
Q defendant’s extent of possessing the characteristics of Q
Asperger’s disorder, the prosecution applied to adjourn the
R case, which I granted, to call Miss Wong to give evidence in R
court. I also directed that a supplemental report be prepared by
S S
Miss Wong giving the reasons for her disagreement.
T T
14. This morning, both Professor Lee and Miss Wong were in
U court to resolve their differences. I am grateful to them for U
their time and assistance to the court.
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A A
B B
15. Professor Lee testifies again in court to claify his
report and it is clear now that Professor Lee does not classify
C C
the defendant psychiatrically as suffering from the Asperger’s
D disease in a full-blown manner. He draws our attention to D
paragraph 57.1 of his report:-
E E
“While not amounting to the full-blown disorder,
Mr Sin presents with characteristic traits, interests
F and behavioural propensities, characteristics of F
individuals suffering from an Asperger’s disorder.”
G G
16. The relevance of these characteristic traits is that
H in his opinion they significantly affect the life of the H
defendant. The defendant has impaired social, emotional
I I
reciprocity and a strong insistence on sameness and
predictability. His obsessional interest in airguns borders on
J J
normality and is likely an integral part of his underlying
K psychological disorder. As the Chinese saying goes, he explains, K
“The slow cooking kills the frog without the frog knowing”.
L Because of the impairment of his judgment regarding the L
potential hazards of his acts, he has a pathetically low sense
M of danger. As a result of the clarification, it becomes apparent M
that the two experts are in general agreement. I would accept
N N
the opinion of Miss Wong that the defendant is not suffering
from Asperger’s disorder.
O O
P 17. That said, I would also accept the opinions of P
Professor Lee that the defendant, having the characteristics and
Q traits of individuals suffering from an Asperger’s disorder, was Q
impaired in his judgment regarding the potential hazards of his
R R
acts. He is a kind of person having low sense of danger.
S S
18. Having considered the opinions of the two experts, I
T am satisfied that the defendant is not a person with propensity T
to commit crimes of violence or otherwise. He has no intention
U U
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A A
to use the airguns in this case to commit any crime, he poses no
B B
real danger to the public.
C C
19. The offence which carries a maximum sentence of
D 14 years’ imprisonment and a maximum fine of $100,000 is no D
doubt a serious offence. While the subject matter of the offence
E is not firearms, given the power of some of the airguns, they E
are dangerous if shot at short distance. Arms can present a risk
F to the community as they could be used for illegal purposes and F
might fall into the hands of people with such evil mind.
G G
H
20. While there is no tariff for the offence, the Court of H
Appeal in HKSAR v Chan Chi Fun1, a case submitted to the court by
I the prosecution, stated that:- I
J “As a rule, this type of offence would attract a J
severe and deterrent sentence, for the reason that
K firearms and ammunition posed a potentially grave K
danger to the society. In determining the appropriate
sentence, the mitigating or aggravating factors
L included a) the type of firearm and ammunition L
involved; b) whether the defendant physically carried
the firearm and ammunition; c) whether the firearm was
M loaded; d) whether the firearm had been used; e) M
whether the defendant intended to use the firearm for
N illegal purposes; f) whether the firearm and N
ammunition were properly stored or whether they were
easily accessible by offenders, and g) whether the
O defendant had a clear record. The level of sentence O
depended on the court’s view of the potential risk
posed by the firearm and ammunition in question taking
P into account the circumstances of the case and the P
defendant’s background.”
Q Q
R 21. The judgment was cited with approval by the Court of R
Appeal in The Secretary for Justice v Leung Kwok Chi 2, another
S S
case relied upon by the prosecution. The Court of Appeal in this
case reiterated that possession of arms and ammunition without a
T T
license is always considered to be a very serious offence in
U Hong Kong as they can create grave danger to the public. It is U
only by adopting stringent approach to the unlicensed possession
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A A
of arms and ammunition that the court can ensure that Hong Kong
B B
continues to be a safe city. The Court of Appeal, however,
recognises that there are varying degrees of culpability and
C C
possession as a hobby with no risks of the firearms or
D ammunition being used for any illegal purpose or posing any D
threat to the public would bring the case to the lower end of
E the scale. E
F 22. The Court of Appeal endorsed the relevant factors on F
sentence laid down by Woo VP in Chan Chi Fun. Woo VP emphasised
G G
at paragraph 19 of his judgment that the basis for sentencing in
H
respect of this type of offence is abundantly clear. The level H
of sentence depends on the court’s assessment of the potential
I risk posed by the arms and ammunition in the defendant’s I
possession taking into account the circumstances of the case and
J the defendant’s background. J
K K
23. In The Secretary for Justice v Yan Shen3 in which the
respondent was also represented by Mr Harris and Professor
L L
Peter Lee also gave his expert opinion as a defence witness, Mr
M Justice Stock, VP, as he then was, had this to say:- M
N “However, in the case of unlicensed possession of N
firearms, society protection is a paramount
consideration. It is a category of offence in which
O O
the sentencing court is expected to give particular
weight to that paramount consideration. It is a
P category of offence which in general requires a P
deterrent sentence by which is meant “sentences that
pay less attention to the personal circumstances of
Q the offender and focus primarily upon the need for the Q
courts to convey a message that an offender can expect
R
to be dealt with more severely so as to deter others R
than he would be were it only his personal wrongdoing
which the court had to consider.”
S S
He continued at paragraph 38 of the judgment:-
T T
“What then are exceptional circumstances? It would be
U unwise to suggest examples but we suggest that an U
exceptional case will tend to be the case where the
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A A
reasons for a non-custodial sentence when explained
B will readily be understood by the public to be B
sufficiently unusual to warrant a departure from the
tough norm.”
C C
24. It was emphasised that the element of general
D D
deterrence is the paramount consideration and that save in
exceptional circumstances a conviction of the offence will be
E E
met by immediate custodial term. A caution was also issued that
F care must always be taken in assessing personality disorders and F
the degree to which such disorder is relevant to sentence.
G G
25. This is not an easy matter for a sentencer. Before me
H H
is a person of previous impeccable character with a successful
career and business in the past decades. With sufficient means
I I
to support himself and his wife, he is now living a semi-retired
J lifestyle enjoying his hobby in the collection and mechanics of J
airguns. I accept that he has never taken the airguns out of his
K home or used or intended to use them for any illegal purpose. K
Being a fanatic in mechanics, what he enjoyed in the collection
L L
of airguns was not the shooting but the mechanics of airguns. As
Professor Lee observes, his gratification was a sense of
M M
fulfilment in overcoming the airguns’ inadequacies, gaining
N better understanding of the mechanics involved and a feeling of N
control over the entire airgun system.
O O
26. In the mitigation letters submitted to this court, the
P P
defendant is described by his acquaintances, and I accept, as a
good and benevolent person who is modest, gentle and candid. In
Q Q
the eyes of his parents, the defendant is a filial and honest
R
son. To his wife he is, however, a timid person with a tough and R
rigid appearance. She never saw him cry in the last 20-odd years
S until after the arrest for this case that he cried many times in S
front of her. It is also noted that when he was interviewed by
T Professor Lee and Miss Wong, the defendant broke down in tears T
expressing his guilt and remorse.
U U
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27. In fact as early as the time of arrest, he had
B B
admitted the offence and fully cooperated with the Police. Mr
Harris confirms that soon after the arrest, the defendant
C C
approached him for advice with the intention to admit the
D offence throughout the past two years knowing full well that he D
might go to prison for the offence. I am satisfied that the
E defendant is genuinely remorseful. E
F 28. The offence came to him and his family as a shock when F
the defendant was advised by Mr Harris that the likely sentence
G G
would be one of imprisonment for the offence he has committed.
H
In the past two years after the arrest he and his wife suffered H
from anxiety. As a result of her arrest for this matter and the
I subsequent bail condition, the wife’s depression, which was a I
pre-existing condition, deteriorated in 2014. The defendant
J feels very sorry for his wife and takes all the blame on J
himself.
K K
29. The delay in bringing the defendant to court while not
L L
criticised by the defence has no doubt enhanced the stress and
M anxiety suffered by the couple and their parents. M
N 30. I acknowledge that the presence of the defendant’s N
wife, his parents and parents-in-laws in court in all the
O O
hearings is impressive. The defendant should be thankful for
their support.
P P
Q 31. I am sure that the defendant has surely learned his Q
lesson. He has heard the clang of the prison, as Mr Harris put
R it, when defendant has been in jail for three weeks for R
preparation of the reports.
S S
32. Care must be taken in considering the relevance of the
T T
defendant’s personality disorder. I accept the opinion of
U Professor Lee that the defendant has the characteristics and U
propensities of individuals suffering from Asperger’s disorder
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A A
although not to the extent of full-blown disorder. His interest
B B
in airguns is likely an integral part of his underlying
psychological disorder. He was indeed impaired in his judgment
C C
regarding the potential hazards of his acts resulting in low
D sense of danger as if he was only playing with his personal D
toys. That, no doubt, only reduced rather than removed his moral
E culpability. E
F 33. The defendant is not unaware of the licensing regime F
of airguns in Hong Kong. However, I accept that his moral
G G
culpability is mitigated by the fact, which I take judicial
H
notice, that airguns are freely available at shops in Mong Kok H
resulting in a confusion and underestimation of the legal
I consequences, in particular to a person who has low sense of I
danger.
J J
34. Not much weight can, however, be placed upon the
K K
voluntary service of the defendant with Unicef which was
performed mainly after his arrest in 2013 and 2014.
L L
M 35. I am of the view that given the nature of the arms M
(being airguns instead of firearms), the fact that they were all
N kept and stored properly at his home and never taken out of the N
premises, the risk of their falling into the hands of
O O
undesirable people is minimal.
P P
36. At the end of the day, with all these personal factors
Q of the defendant, whole circumstances of the case and the Q
sentencing principles in mind, how should I sentence the
R defendant to achieve the correct balance? R
S S
37. I have compared with a few sentencing cases. In
R v Hirai Hilrotsugu4, a case referred to in Chan Chi Fun, the
T T
defendant, a Japanese merchant, was fined $360,000 for
U possession of 10 revolvers, 38 pistols, 5 airguns and almost U
1,500 bullets. The arms and ammunition in question were weapons
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from the Second World War and were just a personal collection
B B
with no intention for any illegal purpose. It was said that as
they were properly stored, there was no risk of any threat to
C C
the public.
D D
38. In the case of Yan Shen, the defendant was in
E possession of one pistol with magazine at the Hong Kong E
International Airport. He was due to depart Hong Kong when the
F pistol was detected in a hand-carried rucksack belonging to him. F
It was a functional weapon. The original sentence being a
G G
Community Service Order and a heavy fine, on review by the
H
prosecution was criticised by the Court of Appeal as outside the H
range which a judge applying his mind to all the circumstances
I could reasonably impose. The Court of Appeal found that the I
judge erred when he found that the possession of the firearms by
J the defendant did not pose any risk or danger to society. The J
appropriate sentence would have been in the range of 18 months’
K K
imprisonment. The original sentence was, however, not interfered
with for matters that occurred after the sentence.
L L
M 39. A non-custodial sentence in the District Court for M
possession of airgun is not unprecedented. In a chinese Reasons
N for Sentence HKSAR v Chan Chi Wan5, the defendant possessed four N
air rifles, five air pistols and one crossbow. His Honour Judge
O O
J Yau, as he then was, sentenced the defendant by way of
Community Service Order. He took into account factors that
P P
included the defendant having a good family background and clear
Q record, his genuine remorse, the arms in question did not pose Q
great risk of danger to the public and the unlikelihood of the
R defendant’s re-offending. R
S S
40. Having considered all the circumstances of this case,
I am satisfied that the appropriate sentence is a Community
T T
Service Order. To enhance the effect as general and individual
U deterrent, I would also impose a heavy fine. I am satisfied that U
the criteria in R v Brown6, as adopted by the Court of Appeal in
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HKSAR v Chow Chak Man7 have been met. In my view, the order
B B
should not be regarded as a soft option. I am satisfied that the
sentence can achieve both the general and individual deterrent
C C
effect in the special circumstances of this case.
D D
41. The defendant is sentenced to Community Service Order
E for 240 hours and a fine of $50,000 to be deducted from his E
bail.
F F
G G
H H
I (C.P. Pang) I
District Judge
J J
1. [2006]1 HKLRD 128
K 2. [2013] HKCU 870, CAAR 6/2012 unreported K
3. [2012]3 HKC 557
L L
4. HCCC 30/1995, unreported
5. DCCC 505/2010, unreported
M M
6. (1981)3 CR App R(s) 294
N 7. (1999)2 HKC 659, 663 N
O O
P P
Q Q
R R
S S
T T
U U
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A A
B DCCC 50/2015 B
IN THE DISTRICT COURT OF THE
C HONG KONG SPECIAL ADMINISTRATIVE REGION C
CRIMINAL CASE NO 50 OF 2015
D D
----------------------
E HKSAR E
v
F F
Sin Ka-leung
G G
----------------------
H Before: HH Judge C P Pang H
Date: 30 April 2015
Present: Mr Simon Kwong, PP of the Department of Justice, for
I I
HKSAR
Mr Graham Harris, SC, leading Mr S W Lee, instructed
J by Morley Chow Seto, for the defendant J
Offence: Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Sentence
M M
---------------------
N N
1. A month ago, the defendant pleaded guilty before me to
O one charge of possession of arms without a licence, for his O
possession of 10 airguns which were found at his home on
P P
25 April 2013.
Q Q
2. Under section 2 of the Firearms and Ammunition
R Ordinance, Cap. 238, “arms” includes an air rifle, airgun or air R
pistol from which any shot, bullet or missile can be discharged
S with a muzzle energy greater than 2 joules. S
T T
3. Seven out of the 10 airguns could produce muzzle
energy from 2.32 to 10.67 joules. The remaining three were
U U
powerful ones as they could produce energy of 22.97, 36.77 and
CRT24/30.4.2015/ES 1 DCCC 50/2015/Sentence
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A A
42.81 joules respectively. Some pellets for the airguns were
B B
also seized from the defendant’s premises.
C C
4. The defendant is aged 49 with a clear record. He is
D married with no children. D
E 5. Mr Harris, Senior Counsel, in mitigation on behalf of E
the defendant immediately recognised the seriousness of the
F offence and accepted that an immediate custodial sentence would F
be the norm of the sentencing options. However, he sought to
G G
persuade the court that there were exceptional circumstances in
H
this case and invited the court to take an exceptional course-by H
remanding the defendant in custody for the preparation of full
I pre-sentencing reports including a Government Psychologist’s I
report and a Community Service Order Suitability report.
J J
6. To justify this suggestion, the defence called
K K
Professor Peter Lee, a Chartered Clinical and Health
Psychologist, to give evidence in court. His expertise is not
L L
challenged.
M M
7. Practising in the Hong Kong Sanatorium and Hospital,
N Professor Lee is also the Honorary Consultant of Queen Mary N
Hospital, Honorary Professor of the Department of Psychiatry,
O O
HKU and a Professor of the Department of Psychology, CUHK. After
four sections of psychological assessments of the defendant,
P P
Professor Lee came to the opinions in his report dated 2 October
Q 2013. The salient points can be summarised as follows:- Q
R 1) Firstly, while not amounting to the full-blown R
disorder, the defendant presents with characteristics
S S
of the Asperger’s Disorder. His obsessional interest
in airguns borders on abnormality and is likely an
T T
integral part of this underlying psychological
U disorder. U
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A A
2) Secondly, given his social isolation, autistic-like
B B
perspective and his one track mind, he was impaired in
his judgment regarding the potential hazards of his
C C
acts.
D D
3) Thirdly, the defendant did not present with any
E other high risk signs of psychopathic individuals. E
F 4) Fourthly, the likelihood he would re-offend is very F
low.
G G
H
Professor Lee’s evidence in court is in line with the opinions H
in his report.
I I
8. Having heard the submissions of Mr Harris and the
J evidence of Professor Lee, I was persuaded that I should call J
for reports for more background information of the defendant and
K K
for a Government Psychologist to comment on the opinions of
Professor Lee. I also agreed with the suggestion, which was one
L L
properly made, of remanding the defendant in custody as an
M immediate custodial sentence is the norm for the serious charge M
which the defendant pleaded guilty to unless there are wholly
N exceptional circumstances. The Probation officer preparing the N
background report of the defendant was also invited to comment
O O
on the defendant’s suitability to perform a Community Service
Order. I gave a clear warning to the defendant that imprisonment
P P
as an option of sentence was in my mind.
Q Q
9. On 21 April, the Probation officer’s report and a
R Psychologist’s report prepared by Miss Winnie Wong were R
available to both parties. The Probation Officer’s report
S S
revealed a full background of the defendant. He is aged 49,
married, living with his wife with no children at the premises
T T
they own where the airguns were found. The mortgage of the self-
U owned flat has been fully paid off. U
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A A
10. The defendant used to run his own printing machinery
B B
companies which were said to be a lucrative business until 2012
when he sold off shares of one of his companies and remained
C C
self-employed in his own printing machinery company. He is now
D living in a semi-retired style. He and his wife are now engaged D
in volunteer work every week.
E E
11. The Probation officer describes the defendant as a
F hardworking man who has all along led a stable and law-abiding F
life with his wife. In tears, the defendant pleaded before her
G G
for a non-custodial sentence. In view of his regretful attitude,
H
his clear record and his willingness to perform unpaid work to H
compensate for his wrongdoing, a Community Service Order as a
I sentencing option is recommended to the court. I
J 12. In the report dated 17 April 2015, the Government J
Psychologist, Miss Wong, is generally in agreement with the
K K
opinions of Professor Lee save and except that she found
insufficient evidence to suggest that the defendant suffers from
L L
autistic spectrum such as Asperger’s disorder. According to her
M clinical assessment, there is no evidence to suggest significant M
deficits in the defendant’s emotional management or impulsive
N control. The defendant, however, shows insight to his offending N
behaviour and is not at significant risk for violent
O O
re-offending.
P P
13. In view of her difference in opinion as to the
Q defendant’s extent of possessing the characteristics of Q
Asperger’s disorder, the prosecution applied to adjourn the
R case, which I granted, to call Miss Wong to give evidence in R
court. I also directed that a supplemental report be prepared by
S S
Miss Wong giving the reasons for her disagreement.
T T
14. This morning, both Professor Lee and Miss Wong were in
U court to resolve their differences. I am grateful to them for U
their time and assistance to the court.
CRT24/30.4.2015/ES 4 DCCC 50/2015/Sentence
V V
A A
B B
15. Professor Lee testifies again in court to claify his
report and it is clear now that Professor Lee does not classify
C C
the defendant psychiatrically as suffering from the Asperger’s
D disease in a full-blown manner. He draws our attention to D
paragraph 57.1 of his report:-
E E
“While not amounting to the full-blown disorder,
Mr Sin presents with characteristic traits, interests
F and behavioural propensities, characteristics of F
individuals suffering from an Asperger’s disorder.”
G G
16. The relevance of these characteristic traits is that
H in his opinion they significantly affect the life of the H
defendant. The defendant has impaired social, emotional
I I
reciprocity and a strong insistence on sameness and
predictability. His obsessional interest in airguns borders on
J J
normality and is likely an integral part of his underlying
K psychological disorder. As the Chinese saying goes, he explains, K
“The slow cooking kills the frog without the frog knowing”.
L Because of the impairment of his judgment regarding the L
potential hazards of his acts, he has a pathetically low sense
M of danger. As a result of the clarification, it becomes apparent M
that the two experts are in general agreement. I would accept
N N
the opinion of Miss Wong that the defendant is not suffering
from Asperger’s disorder.
O O
P 17. That said, I would also accept the opinions of P
Professor Lee that the defendant, having the characteristics and
Q traits of individuals suffering from an Asperger’s disorder, was Q
impaired in his judgment regarding the potential hazards of his
R R
acts. He is a kind of person having low sense of danger.
S S
18. Having considered the opinions of the two experts, I
T am satisfied that the defendant is not a person with propensity T
to commit crimes of violence or otherwise. He has no intention
U U
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A A
to use the airguns in this case to commit any crime, he poses no
B B
real danger to the public.
C C
19. The offence which carries a maximum sentence of
D 14 years’ imprisonment and a maximum fine of $100,000 is no D
doubt a serious offence. While the subject matter of the offence
E is not firearms, given the power of some of the airguns, they E
are dangerous if shot at short distance. Arms can present a risk
F to the community as they could be used for illegal purposes and F
might fall into the hands of people with such evil mind.
G G
H
20. While there is no tariff for the offence, the Court of H
Appeal in HKSAR v Chan Chi Fun1, a case submitted to the court by
I the prosecution, stated that:- I
J “As a rule, this type of offence would attract a J
severe and deterrent sentence, for the reason that
K firearms and ammunition posed a potentially grave K
danger to the society. In determining the appropriate
sentence, the mitigating or aggravating factors
L included a) the type of firearm and ammunition L
involved; b) whether the defendant physically carried
the firearm and ammunition; c) whether the firearm was
M loaded; d) whether the firearm had been used; e) M
whether the defendant intended to use the firearm for
N illegal purposes; f) whether the firearm and N
ammunition were properly stored or whether they were
easily accessible by offenders, and g) whether the
O defendant had a clear record. The level of sentence O
depended on the court’s view of the potential risk
posed by the firearm and ammunition in question taking
P into account the circumstances of the case and the P
defendant’s background.”
Q Q
R 21. The judgment was cited with approval by the Court of R
Appeal in The Secretary for Justice v Leung Kwok Chi 2, another
S S
case relied upon by the prosecution. The Court of Appeal in this
case reiterated that possession of arms and ammunition without a
T T
license is always considered to be a very serious offence in
U Hong Kong as they can create grave danger to the public. It is U
only by adopting stringent approach to the unlicensed possession
CRT24/30.4.2015/ES 6 DCCC 50/2015/Sentence
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A A
of arms and ammunition that the court can ensure that Hong Kong
B B
continues to be a safe city. The Court of Appeal, however,
recognises that there are varying degrees of culpability and
C C
possession as a hobby with no risks of the firearms or
D ammunition being used for any illegal purpose or posing any D
threat to the public would bring the case to the lower end of
E the scale. E
F 22. The Court of Appeal endorsed the relevant factors on F
sentence laid down by Woo VP in Chan Chi Fun. Woo VP emphasised
G G
at paragraph 19 of his judgment that the basis for sentencing in
H
respect of this type of offence is abundantly clear. The level H
of sentence depends on the court’s assessment of the potential
I risk posed by the arms and ammunition in the defendant’s I
possession taking into account the circumstances of the case and
J the defendant’s background. J
K K
23. In The Secretary for Justice v Yan Shen3 in which the
respondent was also represented by Mr Harris and Professor
L L
Peter Lee also gave his expert opinion as a defence witness, Mr
M Justice Stock, VP, as he then was, had this to say:- M
N “However, in the case of unlicensed possession of N
firearms, society protection is a paramount
consideration. It is a category of offence in which
O O
the sentencing court is expected to give particular
weight to that paramount consideration. It is a
P category of offence which in general requires a P
deterrent sentence by which is meant “sentences that
pay less attention to the personal circumstances of
Q the offender and focus primarily upon the need for the Q
courts to convey a message that an offender can expect
R
to be dealt with more severely so as to deter others R
than he would be were it only his personal wrongdoing
which the court had to consider.”
S S
He continued at paragraph 38 of the judgment:-
T T
“What then are exceptional circumstances? It would be
U unwise to suggest examples but we suggest that an U
exceptional case will tend to be the case where the
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A A
reasons for a non-custodial sentence when explained
B will readily be understood by the public to be B
sufficiently unusual to warrant a departure from the
tough norm.”
C C
24. It was emphasised that the element of general
D D
deterrence is the paramount consideration and that save in
exceptional circumstances a conviction of the offence will be
E E
met by immediate custodial term. A caution was also issued that
F care must always be taken in assessing personality disorders and F
the degree to which such disorder is relevant to sentence.
G G
25. This is not an easy matter for a sentencer. Before me
H H
is a person of previous impeccable character with a successful
career and business in the past decades. With sufficient means
I I
to support himself and his wife, he is now living a semi-retired
J lifestyle enjoying his hobby in the collection and mechanics of J
airguns. I accept that he has never taken the airguns out of his
K home or used or intended to use them for any illegal purpose. K
Being a fanatic in mechanics, what he enjoyed in the collection
L L
of airguns was not the shooting but the mechanics of airguns. As
Professor Lee observes, his gratification was a sense of
M M
fulfilment in overcoming the airguns’ inadequacies, gaining
N better understanding of the mechanics involved and a feeling of N
control over the entire airgun system.
O O
26. In the mitigation letters submitted to this court, the
P P
defendant is described by his acquaintances, and I accept, as a
good and benevolent person who is modest, gentle and candid. In
Q Q
the eyes of his parents, the defendant is a filial and honest
R
son. To his wife he is, however, a timid person with a tough and R
rigid appearance. She never saw him cry in the last 20-odd years
S until after the arrest for this case that he cried many times in S
front of her. It is also noted that when he was interviewed by
T Professor Lee and Miss Wong, the defendant broke down in tears T
expressing his guilt and remorse.
U U
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A A
27. In fact as early as the time of arrest, he had
B B
admitted the offence and fully cooperated with the Police. Mr
Harris confirms that soon after the arrest, the defendant
C C
approached him for advice with the intention to admit the
D offence throughout the past two years knowing full well that he D
might go to prison for the offence. I am satisfied that the
E defendant is genuinely remorseful. E
F 28. The offence came to him and his family as a shock when F
the defendant was advised by Mr Harris that the likely sentence
G G
would be one of imprisonment for the offence he has committed.
H
In the past two years after the arrest he and his wife suffered H
from anxiety. As a result of her arrest for this matter and the
I subsequent bail condition, the wife’s depression, which was a I
pre-existing condition, deteriorated in 2014. The defendant
J feels very sorry for his wife and takes all the blame on J
himself.
K K
29. The delay in bringing the defendant to court while not
L L
criticised by the defence has no doubt enhanced the stress and
M anxiety suffered by the couple and their parents. M
N 30. I acknowledge that the presence of the defendant’s N
wife, his parents and parents-in-laws in court in all the
O O
hearings is impressive. The defendant should be thankful for
their support.
P P
Q 31. I am sure that the defendant has surely learned his Q
lesson. He has heard the clang of the prison, as Mr Harris put
R it, when defendant has been in jail for three weeks for R
preparation of the reports.
S S
32. Care must be taken in considering the relevance of the
T T
defendant’s personality disorder. I accept the opinion of
U Professor Lee that the defendant has the characteristics and U
propensities of individuals suffering from Asperger’s disorder
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A A
although not to the extent of full-blown disorder. His interest
B B
in airguns is likely an integral part of his underlying
psychological disorder. He was indeed impaired in his judgment
C C
regarding the potential hazards of his acts resulting in low
D sense of danger as if he was only playing with his personal D
toys. That, no doubt, only reduced rather than removed his moral
E culpability. E
F 33. The defendant is not unaware of the licensing regime F
of airguns in Hong Kong. However, I accept that his moral
G G
culpability is mitigated by the fact, which I take judicial
H
notice, that airguns are freely available at shops in Mong Kok H
resulting in a confusion and underestimation of the legal
I consequences, in particular to a person who has low sense of I
danger.
J J
34. Not much weight can, however, be placed upon the
K K
voluntary service of the defendant with Unicef which was
performed mainly after his arrest in 2013 and 2014.
L L
M 35. I am of the view that given the nature of the arms M
(being airguns instead of firearms), the fact that they were all
N kept and stored properly at his home and never taken out of the N
premises, the risk of their falling into the hands of
O O
undesirable people is minimal.
P P
36. At the end of the day, with all these personal factors
Q of the defendant, whole circumstances of the case and the Q
sentencing principles in mind, how should I sentence the
R defendant to achieve the correct balance? R
S S
37. I have compared with a few sentencing cases. In
R v Hirai Hilrotsugu4, a case referred to in Chan Chi Fun, the
T T
defendant, a Japanese merchant, was fined $360,000 for
U possession of 10 revolvers, 38 pistols, 5 airguns and almost U
1,500 bullets. The arms and ammunition in question were weapons
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A A
from the Second World War and were just a personal collection
B B
with no intention for any illegal purpose. It was said that as
they were properly stored, there was no risk of any threat to
C C
the public.
D D
38. In the case of Yan Shen, the defendant was in
E possession of one pistol with magazine at the Hong Kong E
International Airport. He was due to depart Hong Kong when the
F pistol was detected in a hand-carried rucksack belonging to him. F
It was a functional weapon. The original sentence being a
G G
Community Service Order and a heavy fine, on review by the
H
prosecution was criticised by the Court of Appeal as outside the H
range which a judge applying his mind to all the circumstances
I could reasonably impose. The Court of Appeal found that the I
judge erred when he found that the possession of the firearms by
J the defendant did not pose any risk or danger to society. The J
appropriate sentence would have been in the range of 18 months’
K K
imprisonment. The original sentence was, however, not interfered
with for matters that occurred after the sentence.
L L
M 39. A non-custodial sentence in the District Court for M
possession of airgun is not unprecedented. In a chinese Reasons
N for Sentence HKSAR v Chan Chi Wan5, the defendant possessed four N
air rifles, five air pistols and one crossbow. His Honour Judge
O O
J Yau, as he then was, sentenced the defendant by way of
Community Service Order. He took into account factors that
P P
included the defendant having a good family background and clear
Q record, his genuine remorse, the arms in question did not pose Q
great risk of danger to the public and the unlikelihood of the
R defendant’s re-offending. R
S S
40. Having considered all the circumstances of this case,
I am satisfied that the appropriate sentence is a Community
T T
Service Order. To enhance the effect as general and individual
U deterrent, I would also impose a heavy fine. I am satisfied that U
the criteria in R v Brown6, as adopted by the Court of Appeal in
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A A
HKSAR v Chow Chak Man7 have been met. In my view, the order
B B
should not be regarded as a soft option. I am satisfied that the
sentence can achieve both the general and individual deterrent
C C
effect in the special circumstances of this case.
D D
41. The defendant is sentenced to Community Service Order
E for 240 hours and a fine of $50,000 to be deducted from his E
bail.
F F
G G
H H
I (C.P. Pang) I
District Judge
J J
1. [2006]1 HKLRD 128
K 2. [2013] HKCU 870, CAAR 6/2012 unreported K
3. [2012]3 HKC 557
L L
4. HCCC 30/1995, unreported
5. DCCC 505/2010, unreported
M M
6. (1981)3 CR App R(s) 294
N 7. (1999)2 HKC 659, 663 N
O O
P P
Q Q
R R
S S
T T
U U
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