A A
DCCC 168/2015
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 168 OF 2015
C C
----------------------
D D
HKSAR
E v E
Tung Hon-fung
F F
----------------------
G G
Before: HH Judge Sham
Date: 4 June 2015 at 2.42 pm
H Present: Ms Peggy Leung, SPP of the Department of Justice, for H
HKSAR
Mr Siu Chiu-kin, Stanley, instructed by Wong & Co,
I assigned by the Director of Legal Aid, for the I
defendant
J Offence: (1) Attempting to possess arms without a licence (企圖 J
無牌管有槍械)
(2) Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. This is a case concerning possession of air guns. The
defendant pleaded guilty before me to two counts of offence; one
O O
of attempting to possess, and the other of possession of,
P firearms without a licence, contrary to section 13(1) of the P
Firearms and Ammunition Ordinance.
Q Q
2. What happened was the defendant bought three air guns
R sometime in November 2013 on the internet and the goods were R
sent from USA to the defendant in Hong Kong. The guns were
S dismantled into various parts, such as stocks, barrels, actions, S
triggers, etc, and then sent by two lots. The first lot was able
T T
to escape detection and was received by the defendant. The
second lot, however, was not and was intercepted by Customs
U U
Officers at the Air Mail Centre.
1
V V
A A
3. The police went to the defendant’s address as shown on
B B
the parcel with a search warrant, which led to the arrest of the
defendant and the discovery of the first lot. The whole lot was
C C
taken to be examined by a forensic firearms examiner, Mr Lee,
D who assembled the parts into three air guns. He also conducted D
tests with the guns in question and came to the following
E conclusion: E
F air gun “A”- was capable of discharging 9-mm calibre pellet with F
muzzle energy at 123.74 joules;
G air gun “B”- was capable of discharging .22 calibre pellet with G
muzzle energy at 37.07 joules;
H H
air gun “C”- was capable of discharging .25 calibre pellets with
muzzle energy at 48.13 joules.
I I
4. In his report, Mr Lee further elaborated that:
J J
For air gun “A”- the discharged pellet attained velocity of
K
222.93 metres per second. K
For air gun “B”, the discharged pellet attained velocity of
L 275.07 metres per second. L
For air gun “C”, the discharged pellet attained velocity of
M 262.61 metres per second. M
N 5. He set out for reference from a published paper N
“Minimal velocity necessary for perforation of skin by air gun
O O
pellet and bullet” the following test results:
Air Gun Pellet/ Bullets Velocities Necessary for
P P
Perforation of Skin
Q .177” calibre air gun pellet 101 metres per second Q
weighing 8.25 grains (0.53
R grams) R
.22” calibre air gun pellet 75 metres per second
S S
weighing 16.5 grains (1.07
grams)
T T
.38” calibre pellet (diameter 58 metres per second
U 9.119mm) weighing (7.32 grams) U
2
V V
A A
6. The defendant, aged 40, has four previous convictions,
B B
none of which was similar to the present offences. He has one
C conviction of robbery back in 1990 for which he was sentenced to C
Training Centre. Six years later, he committed two offences of
D assaulting police officer and one offence of criminal damage and D
the whole matter was dealt with by way of fines.
E E
7. The court adjourned sentence to enable a background
F report to be prepared for the defendant. Counsel said in F
mitigation that the defendant has been out of trouble for
G G
19 years, since his last conviction in 1996, and throughout
this period of time he was gainfully employed. His last job
H H
at the time of arrest was a construction worker.
I I
8. Counsel said the defendant had the guns for collection
J as well as for bird shooting, and stressed that they were not J
used for any criminal purposes. When probed by the court as to
K whether he had done any such hunting activities before, the K
answer was “No”.
L L
9. In his letter to court, the defendant reiterated that
M he was remorseful for what he did, he fully cooperated with the M
police and he intended to plead guilty at the very first
N N
opportunity.
O O
10. It is true to say that the defendant has been out of
trouble for some 19 years at least on the record. But regarding
P P
his claims to be working at the time of arrest, I have doubt
Q about it. Q
11. In his antecedent statement, it was stated that the
R R
defendant was unemployed at the time of arrest, but in
S mitigation his counsel told the court that he worked for a S
construction company at that time.
T T
12. In the background report, however, it was stated that
U “he claimed in the past couple of years he had worked as a U
3
V V
A A
construction worker, which he earned around $22,000 per month.
To prepare for the court hearing, he said he quit working 18
B B
months or so.” His counsel corrected it to say what he meant was
C he quit working in mid-April 2015. That would mean he continued C
to work until about a month before this court hearing, which is
D in May 2015. D
E 13. The same applies to his claim that he had the guns for E
hunting. The fact is, he had not taken part in any hunting
F activities before and there is no reason offered to explain why F
he suddenly had such a passion and why it was necessary to buy
G G
three guns instead of one.
H H
14. Having said that, there is in fact no evidence before
the court to contradict what he said. Given the situation as it
I I
is, what I will do is to take what he said at its face value.
J That would mean the court is prepared to accept that he had the J
guns for hunting when it comes to sentencing despite having
K doubt about it. K
L 15. There is no tariff for this type of offence. In Leung L
Shiu-lun, CACC609/1996, the appellate court said in paragraph 14
M of the judgment that, “The inclusion of air guns by reference to M
muzzle energy in excess of 2 joules, tends to suggest that the
N N
mischief aimed at is the danger to life and limb.”
O O
16. In Leung’s case, the defendant pleaded guilty to
possession of firearms without a licence and was sentenced to 18
P P
months. The firearms in question were three air rifles, three
Q air pistols, one bag of plastic pellets and three boxes of metal Q
pellets. The rifles and pistols were examined by a firearms
R expert and found all to be .177 calibre with maximum measured R
muzzle energy varying from the lowest 2.3 joules to the highest
S S
12.84 joules.
T 17. The appeal was successful in that the sentence of T
18 months was reduced to one of 10 months. Declining to
U U
establish a general starting point for such offences given the
4
V V
A A
lack of sufficient information, the appellate court considered
that 15 months would be an appropriate starting point for the
B B
particular facts in Leung’s case.
C C
18. Turning to the instant case, though the defendant only
D had three air guns, which is less than in Leung’s case, each can D
have muzzle energy much higher than any of those in Leung’s case
E E
and even much higher than the legal limit of 2 joules.
F 19. In the expert report, for example, it was stated that F
the minimum velocity necessary for a .22 calibre air gun to
G G
perforate skin on human legs is 75 metres per second. And
compared to air gun “B”, which is also a .22 calibre air gun,
H H
the discharged pellet attained velocity is 275.07 metres per
I second, which is about 2.6 times more powerful. I
J 20. The defendant said he had the guns for hunting, but J
everybody knows that accident will happen and when it does,
K serious injuries may be caused to the victims who are K
unfortunately shot by such powerful air guns. The defendant said
L L
he was not aware of the actual power of the guns, but only knew
they should have been above the legal limit when making the
M M
purchase.
N N
21. When questioned by the court that that was like saying
buying a car on the internet without knowing its horsepower. The
O O
defendant said through his counsel that unlike car sale, the
P purchase of air guns is not legal. The seller might not state P
all the specification of details of the gun, such as its power
Q in terms of joules. Be that as it may, clearly the defendant Q
intended to buy air guns which are more powerful than the law
R R
would allow and therefore he is the one to bear the consequences
of having such powerful air guns at the end of the day.
S S
22. Based on the facts of the present case, taking into
T T
account all the mitigation put forward, for each offence I take
U 18 months as starting point. As far as mitigation is concerned, U
apart from his plea there is nothing of substance. It is reduced
5
V V
A A
to 12 months after giving a one-third discount for his plea and
I order that both terms be run concurrently with each other, and
B B
the total term is one of 12 months’ imprisonment.
C C
D D
E E
Sham
F District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V
A A
DCCC 168/2015
B IN THE DISTRICT COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 168 OF 2015
C C
----------------------
D D
HKSAR
E v E
Tung Hon-fung
F F
----------------------
G G
Before: HH Judge Sham
Date: 4 June 2015 at 2.42 pm
H Present: Ms Peggy Leung, SPP of the Department of Justice, for H
HKSAR
Mr Siu Chiu-kin, Stanley, instructed by Wong & Co,
I assigned by the Director of Legal Aid, for the I
defendant
J Offence: (1) Attempting to possess arms without a licence (企圖 J
無牌管有槍械)
(2) Possession of arms without a licence (無牌管有槍械)
K K
---------------------
L L
Reasons for Sentence
M --------------------- M
N N
1. This is a case concerning possession of air guns. The
defendant pleaded guilty before me to two counts of offence; one
O O
of attempting to possess, and the other of possession of,
P firearms without a licence, contrary to section 13(1) of the P
Firearms and Ammunition Ordinance.
Q Q
2. What happened was the defendant bought three air guns
R sometime in November 2013 on the internet and the goods were R
sent from USA to the defendant in Hong Kong. The guns were
S dismantled into various parts, such as stocks, barrels, actions, S
triggers, etc, and then sent by two lots. The first lot was able
T T
to escape detection and was received by the defendant. The
second lot, however, was not and was intercepted by Customs
U U
Officers at the Air Mail Centre.
1
V V
A A
3. The police went to the defendant’s address as shown on
B B
the parcel with a search warrant, which led to the arrest of the
defendant and the discovery of the first lot. The whole lot was
C C
taken to be examined by a forensic firearms examiner, Mr Lee,
D who assembled the parts into three air guns. He also conducted D
tests with the guns in question and came to the following
E conclusion: E
F air gun “A”- was capable of discharging 9-mm calibre pellet with F
muzzle energy at 123.74 joules;
G air gun “B”- was capable of discharging .22 calibre pellet with G
muzzle energy at 37.07 joules;
H H
air gun “C”- was capable of discharging .25 calibre pellets with
muzzle energy at 48.13 joules.
I I
4. In his report, Mr Lee further elaborated that:
J J
For air gun “A”- the discharged pellet attained velocity of
K
222.93 metres per second. K
For air gun “B”, the discharged pellet attained velocity of
L 275.07 metres per second. L
For air gun “C”, the discharged pellet attained velocity of
M 262.61 metres per second. M
N 5. He set out for reference from a published paper N
“Minimal velocity necessary for perforation of skin by air gun
O O
pellet and bullet” the following test results:
Air Gun Pellet/ Bullets Velocities Necessary for
P P
Perforation of Skin
Q .177” calibre air gun pellet 101 metres per second Q
weighing 8.25 grains (0.53
R grams) R
.22” calibre air gun pellet 75 metres per second
S S
weighing 16.5 grains (1.07
grams)
T T
.38” calibre pellet (diameter 58 metres per second
U 9.119mm) weighing (7.32 grams) U
2
V V
A A
6. The defendant, aged 40, has four previous convictions,
B B
none of which was similar to the present offences. He has one
C conviction of robbery back in 1990 for which he was sentenced to C
Training Centre. Six years later, he committed two offences of
D assaulting police officer and one offence of criminal damage and D
the whole matter was dealt with by way of fines.
E E
7. The court adjourned sentence to enable a background
F report to be prepared for the defendant. Counsel said in F
mitigation that the defendant has been out of trouble for
G G
19 years, since his last conviction in 1996, and throughout
this period of time he was gainfully employed. His last job
H H
at the time of arrest was a construction worker.
I I
8. Counsel said the defendant had the guns for collection
J as well as for bird shooting, and stressed that they were not J
used for any criminal purposes. When probed by the court as to
K whether he had done any such hunting activities before, the K
answer was “No”.
L L
9. In his letter to court, the defendant reiterated that
M he was remorseful for what he did, he fully cooperated with the M
police and he intended to plead guilty at the very first
N N
opportunity.
O O
10. It is true to say that the defendant has been out of
trouble for some 19 years at least on the record. But regarding
P P
his claims to be working at the time of arrest, I have doubt
Q about it. Q
11. In his antecedent statement, it was stated that the
R R
defendant was unemployed at the time of arrest, but in
S mitigation his counsel told the court that he worked for a S
construction company at that time.
T T
12. In the background report, however, it was stated that
U “he claimed in the past couple of years he had worked as a U
3
V V
A A
construction worker, which he earned around $22,000 per month.
To prepare for the court hearing, he said he quit working 18
B B
months or so.” His counsel corrected it to say what he meant was
C he quit working in mid-April 2015. That would mean he continued C
to work until about a month before this court hearing, which is
D in May 2015. D
E 13. The same applies to his claim that he had the guns for E
hunting. The fact is, he had not taken part in any hunting
F activities before and there is no reason offered to explain why F
he suddenly had such a passion and why it was necessary to buy
G G
three guns instead of one.
H H
14. Having said that, there is in fact no evidence before
the court to contradict what he said. Given the situation as it
I I
is, what I will do is to take what he said at its face value.
J That would mean the court is prepared to accept that he had the J
guns for hunting when it comes to sentencing despite having
K doubt about it. K
L 15. There is no tariff for this type of offence. In Leung L
Shiu-lun, CACC609/1996, the appellate court said in paragraph 14
M of the judgment that, “The inclusion of air guns by reference to M
muzzle energy in excess of 2 joules, tends to suggest that the
N N
mischief aimed at is the danger to life and limb.”
O O
16. In Leung’s case, the defendant pleaded guilty to
possession of firearms without a licence and was sentenced to 18
P P
months. The firearms in question were three air rifles, three
Q air pistols, one bag of plastic pellets and three boxes of metal Q
pellets. The rifles and pistols were examined by a firearms
R expert and found all to be .177 calibre with maximum measured R
muzzle energy varying from the lowest 2.3 joules to the highest
S S
12.84 joules.
T 17. The appeal was successful in that the sentence of T
18 months was reduced to one of 10 months. Declining to
U U
establish a general starting point for such offences given the
4
V V
A A
lack of sufficient information, the appellate court considered
that 15 months would be an appropriate starting point for the
B B
particular facts in Leung’s case.
C C
18. Turning to the instant case, though the defendant only
D had three air guns, which is less than in Leung’s case, each can D
have muzzle energy much higher than any of those in Leung’s case
E E
and even much higher than the legal limit of 2 joules.
F 19. In the expert report, for example, it was stated that F
the minimum velocity necessary for a .22 calibre air gun to
G G
perforate skin on human legs is 75 metres per second. And
compared to air gun “B”, which is also a .22 calibre air gun,
H H
the discharged pellet attained velocity is 275.07 metres per
I second, which is about 2.6 times more powerful. I
J 20. The defendant said he had the guns for hunting, but J
everybody knows that accident will happen and when it does,
K serious injuries may be caused to the victims who are K
unfortunately shot by such powerful air guns. The defendant said
L L
he was not aware of the actual power of the guns, but only knew
they should have been above the legal limit when making the
M M
purchase.
N N
21. When questioned by the court that that was like saying
buying a car on the internet without knowing its horsepower. The
O O
defendant said through his counsel that unlike car sale, the
P purchase of air guns is not legal. The seller might not state P
all the specification of details of the gun, such as its power
Q in terms of joules. Be that as it may, clearly the defendant Q
intended to buy air guns which are more powerful than the law
R R
would allow and therefore he is the one to bear the consequences
of having such powerful air guns at the end of the day.
S S
22. Based on the facts of the present case, taking into
T T
account all the mitigation put forward, for each offence I take
U 18 months as starting point. As far as mitigation is concerned, U
apart from his plea there is nothing of substance. It is reduced
5
V V
A A
to 12 months after giving a one-third discount for his plea and
I order that both terms be run concurrently with each other, and
B B
the total term is one of 12 months’ imprisonment.
C C
D D
E E
Sham
F District Judge F
G G
H H
I I
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
6
V V