A HCCC 243/2020 A
[2022] HKCFI 1123
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 243 OF 2020
D ----------------- D
HKSAR
E E
v
F F
Chak Wing-sze
G ------------------ G
Before: Hon D’Almada Remedios J
H Date: 9 March 2022 at 3.25 pm H
Present: Mr Adonis Cheung, on fiat, for HKSAR
I
Ms Olivia Tsang, instructed by Morley Chow Seto, I
assigned by DLA, for the accused
Offence: (1) & (2) Possession of arms and ammunition without a
J licence (無牌管有槍械及彈藥) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: Defendant, you have pleaded guilty to two charges of
M possession of arms and ammunition without a licence, M
contrary to section 13(1) and (2) of Chapter 238, which is
the Firearms and Ammunition Ordinance.
N N
You pleaded guilty to these two counts and admitted the
O Summary of Facts on 12 October 2020 before a magistrate O
sitting at the Eastern Magistrates’ Court. You were, as a
result of your plea of guilty, committed to the High Court
P for sentence. P
Sentence
Q Q
I had the first hearing of plea and sentence on 4 January
R this year, 2022, but the sentence was adjourned to the end R
of the trial of HCCC 331/2020 because you were to be called
as a prosecution witness in that trial against two
S defendants, who were Su David and So Hon-to, Stephen, the S
1st and 2nd defendant respectively. In that trial, you were
T
also granted immunity. T
That trial lasted for about 25 days and commenced on
U 13 January 2022. You had given evidence for approximately U
CRT26/9.3.2022/NYL 1 HCCC 243/2020(1)/Sentence
V V
A 5 days in that trial. You were, of course, the main witness A
the prosecution relied upon in respect of the charge of
conspiracy to murder against the two defendants in that
B trial and the only witness. And you were the only witness B
against the 1st defendant. The only witness for the
conspiracy to possess firearms and ammunition. But for the
C C
2nd defendant, there was your evidence plus the
2nd defendant’s admissions in his video-recorded interview.
D D
As it is clear from the verdict of the jury in that case,
HCCC 331/2020, they relied upon your evidence and convicted
E the 2nd defendant on the 1st charge of conspiracy to murder, E
and the 2nd charge also, conspiracy to possess arms and
ammunition. The 1st defendant, however, was acquitted on
F F
both charges. So as the trial has completed, I now come to
sentence you for these two charges to which you have pleaded
G guilty. G
I have informed Ms Tsang prior to just this hearing that I
H will be delving in a little bit more into the facts than is H
what is stated in the Summary of Facts since I have heard
I
more about this case. But of course, I shall not be I
sentencing you on matters which are irrelevant or
aggravating which are not relevant to this case before me,
J that is, HCCC 243/2020. J
Turning to the facts of this case, and I will adopt the
K Summary of Facts here that you admitted. K
L On 1 January 2019, the police went to an abandoned school in L
Tai Po for investigation, that as I know from the trial is
Shing Ming Primary School. They found on the slope a bullet
M hole and near the slope was a piece of metal, gold and M
greyish colour, which was a bullet head. A cartridge case
was recovered by the police in Tai Wo Estate. This
N cartridge case recovered was from a bin at the lobby of Tsui N
Wo House where the 2nd defendant lived in that building. It
O is clear from the evidence in 331, that its video footage, O
that the 2nd defendant had seemingly thrown something into
the bin after he had went up with you (to Shing Ming Primary
P School) to fire a gun. P
In the early hours of 1 January, the police then raided your
Q Q
residence in Siu Lek Yuen Village, Shatin. This is where
you lived with your aunt. The police found in your wardrobe
R a black self-loading pistol designed to discharge ammunition R
in 9 by 19 millimetres calibre. The pistol was functional
and was capable of discharging ammunition in 9 by 19
S millimetre calibre. A magazine containing 18 live rounds of S
ammunition in 9 time 19 millimetre calibre was found and the
magazine was capable of storing 20 rounds of ammunition of
T T
the same calibre. And it was suitable to be used in the
pistol found. The ammunition found in the magazine was also
U U
CRT26/9.3.2022/NYL 2 HCCC 243/2020(1)/Sentence
V V
A suitable to be discharged in the pistol found or a Glock 17 A
self-loading pistol.
B Together with the magazines were 31 live rounds of B
ammunition also of the same calibre and was suitable for
discharge in like calibre firearms such as the pistol that
C C
was found and/or a Glock 17 self-loading pistol. A gun part
known as the “ring” was also found.
D D
As I hear from the evidence in HCCC 331 and this pistol was
actually handed to you by the 2nd defendant on 29 December
E in a sling bag, and it was just outside Tai Wo Plaza, which E
is the area where the defendant D2 lived. My understanding
is this sling bag was also found at your house, which
F F
contained the bullets.
G The 2nd defendant had instructed you to go and collect this G
pistol from him. He then instructed you to come out the
following day to test fire that pistol with him, which
H brings me to the video-recorded interview wherein you H
admitted that at paragraph 5(e) of the Summary of Facts that
I
there was a pistol testing incident on 30 December 2018, I
where it says upon instructions by Stephen, who was the
2nd defendant, over the phone, you went to Tai Wo to meet up
J with him for testing the pistol. J
Together you walked to an abandoned school, Shing Ming
K School and there you passed Stephen the pistol because you K
knew Stephen wanted to test it. The pistol was fully loaded
L and it was Stephen who loaded it. Stephen found a piece of L
wood as a target. Stephen, with gloves on, fired the pistol
at the piece of wood. The cartridge could not be located.
M The shot was very loud. Stephen told you to leave at once. M
Stephen said he did not expect it to be so loud and you fled
the scene immediately.
N N
It was not disputed in the other trial that this pistol
O found in your possession had been fired as that pistol is O
the subject matter of Count 2 in the indictment against you.
In fact, what I did hear further in the trial was that as
P said, D2, Stephen, said it was so loud, he actually went P
upstairs to his house later and got you a pair of earplugs
and gave them to you. You then went home with the pistol
Q Q
and the ammunition and magazine.
R It is clear from the other case, 331, that the wooden board R
that was shot at was found and the wooden board had a hole
in it. This was caused by the bullet that was shot from
S this pistol. The reason why you had kept this pistol is S
that the 2nd defendant had in fact told you and given you
instructions to use the pistol to kill Lam Ching-fung or
T T
Hobbit, who was the intended victim of the conspiracy to
murder charge in case No. 331. You were to find the
U U
CRT26/9.3.2022/NYL 3 HCCC 243/2020(1)/Sentence
V V
A 1st defendant in 331 to assist you to go and test fire the A
gun again after New Year’s Day 2019.
B In that case, I had heard that the 2nd defendant had B
instructed you in fact to buy two different outfits with
wigs and prescription-less glasses to carry out this killing
C C
at Hobbit’s house in his lobby. You had in fact purchased
these outfits to do that.
D D
You pleaded guilty to another charge which is Count 1, which
was that you had in your possession also at your house at
E Siu Lek Yuen in around December 2018 a quantity of arms and E
ammunition which were, namely, two self-loading pistols and
450 rounds of ammunition. These arms and ammunition, I have
F F
heard in the trial of 331, were as a result of the
2nd defendant giving you these arms and ammunition to keep
G for him some time in December. He had given them to you and G
told you that he did not want to keep them because Hobbit
was acquainted with him and the 1st defendant and Hobbit did
H not know you. Stephen also said that should they, that is, H
the 1st defendant and him, be arrested later, these things
I
would not be found, and therefore, they should be kept with I
you for the time being.
J It is apparent from the trial that D2 wanted to kill Hobbit. J
You kept these arms and ammunitions therefore and have an
agreement with him to keep them, you have in fact pleaded
K guilty to being actual possession of these arms and K
ammunition.
L L
In December, these arms and ammunition, however, were, on
the 2nd defendant’s instruction to you and in his presence
M at your house, given to Samuel on 28 December 2018. They M
were given to Samuel at a pagoda near your house.
N It is relevant that I mention Samuel here because as it is N
admitted in the Summary of Facts which you have admitted to
O at paragraph 7: on 31 December 2018 and 1 January 2019, in O
Hung Hom, the police raided the residence of Leung Chung-
yan, who was Samuel. And during that raid, the police
P found: P
1. A self-loading pistol designed to discharge
Q Q
ammunition in 9 by 19 millimetre calibre. Examination
showed the firing pin was not long enough to strike the
R primer of a cartridge to initiate ignition. The pistol R
was not functional and test firing could not be
conducted.
S S
2. Another self-loading pistol designed to discharge
ammunition in the same calibre. That pistol was tested
T T
to be functional and capable of discharging ammunition
in the same calibre.
U U
CRT26/9.3.2022/NYL 4 HCCC 243/2020(1)/Sentence
V V
A 3. Further found are two defective magazines without A
magazine follower or magazine spring. And, more than 9
boxes of ammunition containing 15 live rounds of
B ammunition in 9 by 19 calibre. This ammunition in this B
calibre was suitable to be discharged in like calibre
firearms such as the Glock 17 self-loading pistol.
C C
So in regards to the pistol that was found at Samuel’s
D house, which show the firing pin was not long enough to D
strike the primer of a cartridge to ignite the ignition.
Therefore, that was not a functional pistol. It was
E apparent in the evidence that this was the golden barrel E
pistol. And again, on the instructions of the
2nd defendant, Stephen, he had told you to bring out that
F F
pistol for him to test fire, this time at Ling Oi Primary
School, which was near Shing Ming Primary School in Tai Po.
G But at that time it did not fire. G
Stephen then brought this pistol home and told you that it
H was not functional for those very reasons as the arms and H
ammunition experts said was that there was something wrong
I
with the firing pin. This test firing was conducted on I
26 December, shortly after you had been to church with your
family that day.
J J
So all in all, Ms Chak, defendant, you have admitted in the
two charges to be in possession of three pistols which are
K arms and 500 rounds of ammunition. One of the ammunition K
was the first one that was already fired.
L L
I have taken into account the mitigation put forward by
Ms Tsang, your counsel, and the written mitigation and oral
M mitigation and the mitigating letters submitted on your M
behalf in the bundle, which includes a mitigation letter
written by yourself. The essence of Ms Tsang’s mitigation
N is that at the time you committed these offences, you were N
17 or 18 years old. You were a teenager who had been
O influenced by other peers older than you. Who was older O
than you was the 2nd defendant and who manipulated you to
commit this offence. Because of your weakness, you did not
P know what you were doing. You did not appreciate the P
seriousness of these offences which you were committing.
Q Q
I am aware of your background. First of all, let me just
say you are now aged 22. As I said, at the time of the
R offence, you were 17 or 18 years of age. But I note that R
you became or you came to know the 2nd defendant online at
the end of 2016 when you were about 16 years of age. And
S this was an online platform on Facebook which is apparent he S
took a certain political stance.
T T
Ms Tsang has told me that you were a good student and had
done well and educated up to Secondary 6. But when you met
U U
CRT26/9.3.2022/NYL 5 HCCC 243/2020(1)/Sentence
V V
A the 2nd defendant, your education or academics went south A
because you had committed these offences.
B As regards your background, it is not known who your father B
is. And your mother was a long term patient in a
psychiatric hospital. I am informed that you were placed
C C
into Po Leung Kuk 27 days after your birth. It was at the
age of five whereby your aunt took up the role of raising
D you. However, she suffered from a leg tumour and, as a D
result, one of her legs was amputated after an accident.
She is now left with a prosthetic limb. You have been cared
E for by her ever since you were of young age. E
Ms Tsang tells me that you have four aunties, of which all
F F
are here today. They have seen a significant change in your
maturity about the time you committed this offence and
G afterwards. You are now a young lady aged 22. You are more G
mature now and realise the hard lesson you have paid and
that you have usefully used your time in prison and taken
H your DSE exams to further better yourself. After your H
release from prison, you wish to get into a good university.
I
and of course, look after your aunt. So you have tried very I
hard to start over again.
J In your letter to me, you have also indicated to me that you J
realise your wrongdoing and you are very remorseful for what
you have done. You said, “Although I had a proper job at
K the time of the offence, I was confused and goalless at the K
time. I hung out with the wrong crowd and did not consider
L the consequences carefully. However life in custody is L
mundane and monotonous but I have found my goal here and I
wish to attend university and put myself back on the right
M path.” You have devoted your spare time to study. You M
realise the severity of your offence you have committed and
understand that you must be punished by the law, and you are
N willing to shoulder your responsibility and wrongdoing. N
O As regards your aunt, Ms Chak Man-sze. She has said in her O
letter that you fell in with the wrong crowd that you met
online, which lead you to commit the current offences. She
P believes that you were young and ignorant at the time and P
blinded by romance. However, she said that you have
mentioned that you admit your wrongdoings and you are
Q Q
thankful that you were arrested by the police at the time as
it saved you from getting into further trouble. After
R taking responsibility for your action, you are working hard. R
I know now that the further trouble would have been your
S gullible agreement to carry out the killing or intended S
killing of Hobbit or Lam Ching-fung whom you were instructed
to do so by the 2nd defendant. I have taken into account
T T
all the letters submitted.
U U
CRT26/9.3.2022/NYL 6 HCCC 243/2020(1)/Sentence
V V
A I agree with your aunt and the mitigation expressed by A
Ms Tsang that given your background, including your clear
record, young age and perhaps lack of security, you fell in
B with the wrong people, more particularly, when you met the B
2nd defendant online. You were young and ignorant and
blinded by romance. You were clearly influenced by D2,
C C
Stephen So, who was some 10 years older than you, who was a
university graduate. I have observed you give evidence, I
D found you to be an honest witness although it is not my D
position to say so but the jury’s.
E In January 2018, the 2nd defendant knew, as you said in E
evidence, that you had an affection for him, you had fallen
for him. He asked and you agreed to be his “SP”, his sexual
F F
partner. You agreed to this on his conditions that you
would not be girlfriend/boyfriend, that you would only have
G sex with him. The first time you had sex with him, he took G
you to the abandoned school in Shing Ming Primary School,
not a conventional nor a very comfortable place. That
H demonstrates to me how you, defendant, were blind and green H
in your adoration of D2. Quite clearly, D2 took advantage
I
of you. He knew you admired him. I
From the evidence in the trial, it is clear that D2
J manipulated you to do all his dirty work for him, including J
possessing the arms and ammunition for him, so that he would
not be found with them should he be arrested by the police.
K You foolishly agreed to take these arms and ammunition. K
Stephen even admitted to you that should he and the 1st
L defendant David be arrested later, these things would not be L
found and therefore they should be kept with you for the
time being. This shows to me your immaturity and ignorance
M of the seriousness of the consequences in breaching the law. M
I turn now to the law itself in regards sentence to these
N two offences. N
O You have pleaded guilty to an offence of possession of arms O
and ammunition without a license, the two charges. A very
comprehensive judgment on the possession of arms and
P ammunition was given by the Court of Appeal in the case of P
Tsiang On Yan [2009] 5 HKLRD 100. That is a recent case
handed down by the Court of Appeal on this offence and a
Q Q
very comprehensive case considered by Zervos JA, who gave
judgment for the court in that case. He considered many of
R the authorities prior to that case, possession under R
section 13 and the appropriate starting point for this
offence and the facts which may warrant a departure from the
S starting point. S
At paragraph 43, 44, 45, 48, 51 and 52, the court referred
T T
to a starting point of 12 years’ imprisonment as an
appropriate starting point for this offence. At paragraph
U 45 the court said: U
CRT26/9.3.2022/NYL 7 HCCC 243/2020(1)/Sentence
V V
A A
“It seems clear that a person in possession of firearms
with loaded ammunition or firearm with ammunition
B capable of immediate use, a starting point of 12 years’ B
imprisonment would be appropriate.”
C C
The court went on to consider in that case another case,
which is Chan Chi Fun, where Chan Chi Fun stated:
D D
“In determining the appropriate sentence, the
mitigating and aggravating factors included:
E E
1. The types of firearm and ammunition involved;
2. whether the defendant physically carry the firearm
F F
and ammunition;
3. whether the firearm is loaded;
G 4. whether the firearm has been used; G
5. whether the defendant intends to use the firearm
for legal purposes;
H 6. whether the firearm and ammunition are properly H
stored or whether they are accessible by
I
offenders; I
7. whether the defendant has a clear record.”
J Still referring to Chan, the court at paragraph 47 said: J
“The court went on to emphasise the level of sentence
K was dependent on the sentencing view or the potential K
risk posed by the arms and ammunition in the
L defendant’s possession, taking into account the L
circumstances of the case, the defendant’s background
and the possibility of the arms and ammunition in
M question.” M
At paragraph 48, Jervos JA went on to say:
N N
“In light of the stringent gun control regime in Hong
O Kong, it is hard to imagine why a person would have an O
unlicensed firearm and ammunition in his possession
other than for them to be used for a criminal purpose.
P A firearm with ammunition is a lethal weapon and a P
serious danger to the public. It is for this reason,
depending on the nature and quantity of the firearms
Q Q
and ammunitions involved and the circumstances in which
the offence was committed, that a starting point of
R 12 years’ imprisonment would be appropriate.” R
Zervos JA then went on to observe the difference of the
S provisions in the ordinance. At paragraphs 49, 50 and 35 in S
the case of Tsiang.
T T
“The offence provisions are structured so that for
simple possession of arms or ammunition without a
U licence, a defendant is charged under section 13. A U
CRT26/9.3.2022/NYL 8 HCCC 243/2020(1)/Sentence
V V
A maximum penalty of 14 years is imposed while A
possession of arms and ammunition that are used or
intended to be used to endanger life or commit a
B crime, a maximum penalty of life imprisonment is B
imposed.”
C C
And that he was referring to sections 16, 17 and 18 of the
ordinance.
D D
The court went on to observe:
E “The more serious offences where a person has in his E
possession arms and ammunition that is used or
intended to be used to endanger life or for some other
F F
criminal purpose, the penalty is a maximum known to
law of life imprisonment.”
G G
He went on to say at paragraph 52, Zervos said that:
H “A firearm and ammunition with the potential to kill or H
maim a person is a lethal weapon which ranks high in
I
the level of prohibited items under this offence. A I
person convicted of possession of such a firearm and
ammunition can normally expect a sentence after trial
J of 12 years’ imprisonment unless there are special J
features that warrant a reduction.”
K Ms Tsang mitigating on behalf of the defendant in this case K
has accepted that a sentence of 12 years’ imprisonment after
L trial is the norm. She has not suggested there are any L
special features that warrant a reduction in that starting
point.
M M
In this case, Ms Chak was in possession of the firearm and
ammunition in Count 2, that is, the pistol and 49 bullets
N which were given to her by the 2nd defendant. On N
instructions given by the 2nd defendant, she brought this
O gun to be test fired on 30 December 2018. It was at the O
abandoned school in Tai Wo where the 2nd defendant test
fired the gun and that was at Shing Ming Primary School. It
P was fully loaded and fired by the 2nd defendant at a wooden P
board in the presence of Chak.
Q Q
On 1 January 2019, police officers went to the abandoned
school and found the wooden board with a bullet hole in it
R and a discharged metal golden bullet head. On the same day, R
a cartridge was recovered at Tsui Wo House in Tai Wo Estate
where D2 lived. D2 told her he did not expect it to be so
S loud and fled the scene immediately afterwards. After that, S
it was she who took the gun and the bullets back home. That
was what was found in possession when the police arrested
T T
her on 1 January 2019.
U U
CRT26/9.3.2022/NYL 9 HCCC 243/2020(1)/Sentence
V V
A Therefore, the level of sentence is dependent on the A
sentencing court’s view or the potential risk posed by the
arms and ammunition in the defendant’s possession, taking
B into account the circumstance of the case, the defendant’s B
background and the possibility of the arms and ammunition in
question.
C C
In this defendant’s evidence in 331 of 20, it was revealed
D that D2 Stephen had instructed her to use this gun found in D
her possession to kill Hobbit Lam Ching-fung, the intended
victim in 331/2020. I note specifically this is evidence
E which is not to be used as an aggravating factor in this E
case. It is just for background as to why this pistol was
still in her possession and why the 2nd defendant went to
F F
test fire the gun, that is, that Chak had this possession of
this gun which she had intended to use it for an illegal
G purpose. Bearing in mind the quantity of arms and G
ammunition in her possession and in fact that she had
carried the gun in public on 30 December to be test fired,
H and the gun had been used and the arms, and ammunitions were H
stored at her house when the arms and ammunitions were not
I
locked but just kept in her bedroom wardrobe, and the fact I
she was present when one of them was test fired, I have
considered these factors to be aggravating factors. I would
J therefore enhance her sentence by 1 year from the usual J
starting point of 12 years.
K Defendant, I take into account the principle of totality. K
Had you been convicted after trial, I would have taken a
L total starting point of 13 years’ imprisonment. The L
strongest mitigating factor is your early pleas of guilty at
the first opportunity before the Eastern Magistracy. For
M that, of course, the usual discount would apply and that is M
a one-third discount.
N You had, as I mentioned, given assistance to the prosecution N
in this case by giving evidence against the 1st and 2nd
O defendants. The fact that the 1st defendant was not O
convicted does not equate to your evidence not assisting the
prosecution. The case against the 1st defendant was very
P different from that of the 2nd defendant. In any event, Mr P
Cheung, Counsel on fiat, as stated for Ms Tsang for you,
accepts that the evidence you gave for the prosecution did
Q Q
assist the prosecution and you did try your best to assist
the prosecution. I agree.
R R
The Court of Final Appeal in Z v HKSAR [2007] 2 HKC 265
recognised that where the defendants have not only given
S information but have proceeded to give truthful and material S
evidence, a usual discount would be one of 50 per cent
including the one-third reduction for a plea of guilty. It
T T
is my view that you do warrant a 50 per cent discount.
U U
CRT26/9.3.2022/NYL 10 HCCC 243/2020(1)/Sentence
V V
A Defendant, for Count 1 and Count 2, had you been convicted A
after trial, I would have taken a starting point of
13 years’ imprisonment. Giving you the 50 per cent discount
B in relation to each count, that term is reduced to one of B
6 years and 6 months’ imprisonment. I shall order each term
of imprisonment to run concurrent to each other.
C C
So that will mean that you shall be sentenced to 6 years and
D 6 months’ imprisonment. D
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
CRT26/9.3.2022/NYL 11 HCCC 243/2020(1)/Sentence
V V
A HCCC 243/2020 A
[2022] HKCFI 1123
B IN THE HIGH COURT OF THE B
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
C C
CRIMINAL CASE NO 243 OF 2020
D ----------------- D
HKSAR
E E
v
F F
Chak Wing-sze
G ------------------ G
Before: Hon D’Almada Remedios J
H Date: 9 March 2022 at 3.25 pm H
Present: Mr Adonis Cheung, on fiat, for HKSAR
I
Ms Olivia Tsang, instructed by Morley Chow Seto, I
assigned by DLA, for the accused
Offence: (1) & (2) Possession of arms and ammunition without a
J licence (無牌管有槍械及彈藥) J
---------------------------------
K K
Transcript of the Audio Recording
of the Sentence in the above Case
L --------------------------------- L
COURT: Defendant, you have pleaded guilty to two charges of
M possession of arms and ammunition without a licence, M
contrary to section 13(1) and (2) of Chapter 238, which is
the Firearms and Ammunition Ordinance.
N N
You pleaded guilty to these two counts and admitted the
O Summary of Facts on 12 October 2020 before a magistrate O
sitting at the Eastern Magistrates’ Court. You were, as a
result of your plea of guilty, committed to the High Court
P for sentence. P
Sentence
Q Q
I had the first hearing of plea and sentence on 4 January
R this year, 2022, but the sentence was adjourned to the end R
of the trial of HCCC 331/2020 because you were to be called
as a prosecution witness in that trial against two
S defendants, who were Su David and So Hon-to, Stephen, the S
1st and 2nd defendant respectively. In that trial, you were
T
also granted immunity. T
That trial lasted for about 25 days and commenced on
U 13 January 2022. You had given evidence for approximately U
CRT26/9.3.2022/NYL 1 HCCC 243/2020(1)/Sentence
V V
A 5 days in that trial. You were, of course, the main witness A
the prosecution relied upon in respect of the charge of
conspiracy to murder against the two defendants in that
B trial and the only witness. And you were the only witness B
against the 1st defendant. The only witness for the
conspiracy to possess firearms and ammunition. But for the
C C
2nd defendant, there was your evidence plus the
2nd defendant’s admissions in his video-recorded interview.
D D
As it is clear from the verdict of the jury in that case,
HCCC 331/2020, they relied upon your evidence and convicted
E the 2nd defendant on the 1st charge of conspiracy to murder, E
and the 2nd charge also, conspiracy to possess arms and
ammunition. The 1st defendant, however, was acquitted on
F F
both charges. So as the trial has completed, I now come to
sentence you for these two charges to which you have pleaded
G guilty. G
I have informed Ms Tsang prior to just this hearing that I
H will be delving in a little bit more into the facts than is H
what is stated in the Summary of Facts since I have heard
I
more about this case. But of course, I shall not be I
sentencing you on matters which are irrelevant or
aggravating which are not relevant to this case before me,
J that is, HCCC 243/2020. J
Turning to the facts of this case, and I will adopt the
K Summary of Facts here that you admitted. K
L On 1 January 2019, the police went to an abandoned school in L
Tai Po for investigation, that as I know from the trial is
Shing Ming Primary School. They found on the slope a bullet
M hole and near the slope was a piece of metal, gold and M
greyish colour, which was a bullet head. A cartridge case
was recovered by the police in Tai Wo Estate. This
N cartridge case recovered was from a bin at the lobby of Tsui N
Wo House where the 2nd defendant lived in that building. It
O is clear from the evidence in 331, that its video footage, O
that the 2nd defendant had seemingly thrown something into
the bin after he had went up with you (to Shing Ming Primary
P School) to fire a gun. P
In the early hours of 1 January, the police then raided your
Q Q
residence in Siu Lek Yuen Village, Shatin. This is where
you lived with your aunt. The police found in your wardrobe
R a black self-loading pistol designed to discharge ammunition R
in 9 by 19 millimetres calibre. The pistol was functional
and was capable of discharging ammunition in 9 by 19
S millimetre calibre. A magazine containing 18 live rounds of S
ammunition in 9 time 19 millimetre calibre was found and the
magazine was capable of storing 20 rounds of ammunition of
T T
the same calibre. And it was suitable to be used in the
pistol found. The ammunition found in the magazine was also
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A suitable to be discharged in the pistol found or a Glock 17 A
self-loading pistol.
B Together with the magazines were 31 live rounds of B
ammunition also of the same calibre and was suitable for
discharge in like calibre firearms such as the pistol that
C C
was found and/or a Glock 17 self-loading pistol. A gun part
known as the “ring” was also found.
D D
As I hear from the evidence in HCCC 331 and this pistol was
actually handed to you by the 2nd defendant on 29 December
E in a sling bag, and it was just outside Tai Wo Plaza, which E
is the area where the defendant D2 lived. My understanding
is this sling bag was also found at your house, which
F F
contained the bullets.
G The 2nd defendant had instructed you to go and collect this G
pistol from him. He then instructed you to come out the
following day to test fire that pistol with him, which
H brings me to the video-recorded interview wherein you H
admitted that at paragraph 5(e) of the Summary of Facts that
I
there was a pistol testing incident on 30 December 2018, I
where it says upon instructions by Stephen, who was the
2nd defendant, over the phone, you went to Tai Wo to meet up
J with him for testing the pistol. J
Together you walked to an abandoned school, Shing Ming
K School and there you passed Stephen the pistol because you K
knew Stephen wanted to test it. The pistol was fully loaded
L and it was Stephen who loaded it. Stephen found a piece of L
wood as a target. Stephen, with gloves on, fired the pistol
at the piece of wood. The cartridge could not be located.
M The shot was very loud. Stephen told you to leave at once. M
Stephen said he did not expect it to be so loud and you fled
the scene immediately.
N N
It was not disputed in the other trial that this pistol
O found in your possession had been fired as that pistol is O
the subject matter of Count 2 in the indictment against you.
In fact, what I did hear further in the trial was that as
P said, D2, Stephen, said it was so loud, he actually went P
upstairs to his house later and got you a pair of earplugs
and gave them to you. You then went home with the pistol
Q Q
and the ammunition and magazine.
R It is clear from the other case, 331, that the wooden board R
that was shot at was found and the wooden board had a hole
in it. This was caused by the bullet that was shot from
S this pistol. The reason why you had kept this pistol is S
that the 2nd defendant had in fact told you and given you
instructions to use the pistol to kill Lam Ching-fung or
T T
Hobbit, who was the intended victim of the conspiracy to
murder charge in case No. 331. You were to find the
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A 1st defendant in 331 to assist you to go and test fire the A
gun again after New Year’s Day 2019.
B In that case, I had heard that the 2nd defendant had B
instructed you in fact to buy two different outfits with
wigs and prescription-less glasses to carry out this killing
C C
at Hobbit’s house in his lobby. You had in fact purchased
these outfits to do that.
D D
You pleaded guilty to another charge which is Count 1, which
was that you had in your possession also at your house at
E Siu Lek Yuen in around December 2018 a quantity of arms and E
ammunition which were, namely, two self-loading pistols and
450 rounds of ammunition. These arms and ammunition, I have
F F
heard in the trial of 331, were as a result of the
2nd defendant giving you these arms and ammunition to keep
G for him some time in December. He had given them to you and G
told you that he did not want to keep them because Hobbit
was acquainted with him and the 1st defendant and Hobbit did
H not know you. Stephen also said that should they, that is, H
the 1st defendant and him, be arrested later, these things
I
would not be found, and therefore, they should be kept with I
you for the time being.
J It is apparent from the trial that D2 wanted to kill Hobbit. J
You kept these arms and ammunitions therefore and have an
agreement with him to keep them, you have in fact pleaded
K guilty to being actual possession of these arms and K
ammunition.
L L
In December, these arms and ammunition, however, were, on
the 2nd defendant’s instruction to you and in his presence
M at your house, given to Samuel on 28 December 2018. They M
were given to Samuel at a pagoda near your house.
N It is relevant that I mention Samuel here because as it is N
admitted in the Summary of Facts which you have admitted to
O at paragraph 7: on 31 December 2018 and 1 January 2019, in O
Hung Hom, the police raided the residence of Leung Chung-
yan, who was Samuel. And during that raid, the police
P found: P
1. A self-loading pistol designed to discharge
Q Q
ammunition in 9 by 19 millimetre calibre. Examination
showed the firing pin was not long enough to strike the
R primer of a cartridge to initiate ignition. The pistol R
was not functional and test firing could not be
conducted.
S S
2. Another self-loading pistol designed to discharge
ammunition in the same calibre. That pistol was tested
T T
to be functional and capable of discharging ammunition
in the same calibre.
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A 3. Further found are two defective magazines without A
magazine follower or magazine spring. And, more than 9
boxes of ammunition containing 15 live rounds of
B ammunition in 9 by 19 calibre. This ammunition in this B
calibre was suitable to be discharged in like calibre
firearms such as the Glock 17 self-loading pistol.
C C
So in regards to the pistol that was found at Samuel’s
D house, which show the firing pin was not long enough to D
strike the primer of a cartridge to ignite the ignition.
Therefore, that was not a functional pistol. It was
E apparent in the evidence that this was the golden barrel E
pistol. And again, on the instructions of the
2nd defendant, Stephen, he had told you to bring out that
F F
pistol for him to test fire, this time at Ling Oi Primary
School, which was near Shing Ming Primary School in Tai Po.
G But at that time it did not fire. G
Stephen then brought this pistol home and told you that it
H was not functional for those very reasons as the arms and H
ammunition experts said was that there was something wrong
I
with the firing pin. This test firing was conducted on I
26 December, shortly after you had been to church with your
family that day.
J J
So all in all, Ms Chak, defendant, you have admitted in the
two charges to be in possession of three pistols which are
K arms and 500 rounds of ammunition. One of the ammunition K
was the first one that was already fired.
L L
I have taken into account the mitigation put forward by
Ms Tsang, your counsel, and the written mitigation and oral
M mitigation and the mitigating letters submitted on your M
behalf in the bundle, which includes a mitigation letter
written by yourself. The essence of Ms Tsang’s mitigation
N is that at the time you committed these offences, you were N
17 or 18 years old. You were a teenager who had been
O influenced by other peers older than you. Who was older O
than you was the 2nd defendant and who manipulated you to
commit this offence. Because of your weakness, you did not
P know what you were doing. You did not appreciate the P
seriousness of these offences which you were committing.
Q Q
I am aware of your background. First of all, let me just
say you are now aged 22. As I said, at the time of the
R offence, you were 17 or 18 years of age. But I note that R
you became or you came to know the 2nd defendant online at
the end of 2016 when you were about 16 years of age. And
S this was an online platform on Facebook which is apparent he S
took a certain political stance.
T T
Ms Tsang has told me that you were a good student and had
done well and educated up to Secondary 6. But when you met
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A the 2nd defendant, your education or academics went south A
because you had committed these offences.
B As regards your background, it is not known who your father B
is. And your mother was a long term patient in a
psychiatric hospital. I am informed that you were placed
C C
into Po Leung Kuk 27 days after your birth. It was at the
age of five whereby your aunt took up the role of raising
D you. However, she suffered from a leg tumour and, as a D
result, one of her legs was amputated after an accident.
She is now left with a prosthetic limb. You have been cared
E for by her ever since you were of young age. E
Ms Tsang tells me that you have four aunties, of which all
F F
are here today. They have seen a significant change in your
maturity about the time you committed this offence and
G afterwards. You are now a young lady aged 22. You are more G
mature now and realise the hard lesson you have paid and
that you have usefully used your time in prison and taken
H your DSE exams to further better yourself. After your H
release from prison, you wish to get into a good university.
I
and of course, look after your aunt. So you have tried very I
hard to start over again.
J In your letter to me, you have also indicated to me that you J
realise your wrongdoing and you are very remorseful for what
you have done. You said, “Although I had a proper job at
K the time of the offence, I was confused and goalless at the K
time. I hung out with the wrong crowd and did not consider
L the consequences carefully. However life in custody is L
mundane and monotonous but I have found my goal here and I
wish to attend university and put myself back on the right
M path.” You have devoted your spare time to study. You M
realise the severity of your offence you have committed and
understand that you must be punished by the law, and you are
N willing to shoulder your responsibility and wrongdoing. N
O As regards your aunt, Ms Chak Man-sze. She has said in her O
letter that you fell in with the wrong crowd that you met
online, which lead you to commit the current offences. She
P believes that you were young and ignorant at the time and P
blinded by romance. However, she said that you have
mentioned that you admit your wrongdoings and you are
Q Q
thankful that you were arrested by the police at the time as
it saved you from getting into further trouble. After
R taking responsibility for your action, you are working hard. R
I know now that the further trouble would have been your
S gullible agreement to carry out the killing or intended S
killing of Hobbit or Lam Ching-fung whom you were instructed
to do so by the 2nd defendant. I have taken into account
T T
all the letters submitted.
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A I agree with your aunt and the mitigation expressed by A
Ms Tsang that given your background, including your clear
record, young age and perhaps lack of security, you fell in
B with the wrong people, more particularly, when you met the B
2nd defendant online. You were young and ignorant and
blinded by romance. You were clearly influenced by D2,
C C
Stephen So, who was some 10 years older than you, who was a
university graduate. I have observed you give evidence, I
D found you to be an honest witness although it is not my D
position to say so but the jury’s.
E In January 2018, the 2nd defendant knew, as you said in E
evidence, that you had an affection for him, you had fallen
for him. He asked and you agreed to be his “SP”, his sexual
F F
partner. You agreed to this on his conditions that you
would not be girlfriend/boyfriend, that you would only have
G sex with him. The first time you had sex with him, he took G
you to the abandoned school in Shing Ming Primary School,
not a conventional nor a very comfortable place. That
H demonstrates to me how you, defendant, were blind and green H
in your adoration of D2. Quite clearly, D2 took advantage
I
of you. He knew you admired him. I
From the evidence in the trial, it is clear that D2
J manipulated you to do all his dirty work for him, including J
possessing the arms and ammunition for him, so that he would
not be found with them should he be arrested by the police.
K You foolishly agreed to take these arms and ammunition. K
Stephen even admitted to you that should he and the 1st
L defendant David be arrested later, these things would not be L
found and therefore they should be kept with you for the
time being. This shows to me your immaturity and ignorance
M of the seriousness of the consequences in breaching the law. M
I turn now to the law itself in regards sentence to these
N two offences. N
O You have pleaded guilty to an offence of possession of arms O
and ammunition without a license, the two charges. A very
comprehensive judgment on the possession of arms and
P ammunition was given by the Court of Appeal in the case of P
Tsiang On Yan [2009] 5 HKLRD 100. That is a recent case
handed down by the Court of Appeal on this offence and a
Q Q
very comprehensive case considered by Zervos JA, who gave
judgment for the court in that case. He considered many of
R the authorities prior to that case, possession under R
section 13 and the appropriate starting point for this
offence and the facts which may warrant a departure from the
S starting point. S
At paragraph 43, 44, 45, 48, 51 and 52, the court referred
T T
to a starting point of 12 years’ imprisonment as an
appropriate starting point for this offence. At paragraph
U 45 the court said: U
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A A
“It seems clear that a person in possession of firearms
with loaded ammunition or firearm with ammunition
B capable of immediate use, a starting point of 12 years’ B
imprisonment would be appropriate.”
C C
The court went on to consider in that case another case,
which is Chan Chi Fun, where Chan Chi Fun stated:
D D
“In determining the appropriate sentence, the
mitigating and aggravating factors included:
E E
1. The types of firearm and ammunition involved;
2. whether the defendant physically carry the firearm
F F
and ammunition;
3. whether the firearm is loaded;
G 4. whether the firearm has been used; G
5. whether the defendant intends to use the firearm
for legal purposes;
H 6. whether the firearm and ammunition are properly H
stored or whether they are accessible by
I
offenders; I
7. whether the defendant has a clear record.”
J Still referring to Chan, the court at paragraph 47 said: J
“The court went on to emphasise the level of sentence
K was dependent on the sentencing view or the potential K
risk posed by the arms and ammunition in the
L defendant’s possession, taking into account the L
circumstances of the case, the defendant’s background
and the possibility of the arms and ammunition in
M question.” M
At paragraph 48, Jervos JA went on to say:
N N
“In light of the stringent gun control regime in Hong
O Kong, it is hard to imagine why a person would have an O
unlicensed firearm and ammunition in his possession
other than for them to be used for a criminal purpose.
P A firearm with ammunition is a lethal weapon and a P
serious danger to the public. It is for this reason,
depending on the nature and quantity of the firearms
Q Q
and ammunitions involved and the circumstances in which
the offence was committed, that a starting point of
R 12 years’ imprisonment would be appropriate.” R
Zervos JA then went on to observe the difference of the
S provisions in the ordinance. At paragraphs 49, 50 and 35 in S
the case of Tsiang.
T T
“The offence provisions are structured so that for
simple possession of arms or ammunition without a
U licence, a defendant is charged under section 13. A U
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A maximum penalty of 14 years is imposed while A
possession of arms and ammunition that are used or
intended to be used to endanger life or commit a
B crime, a maximum penalty of life imprisonment is B
imposed.”
C C
And that he was referring to sections 16, 17 and 18 of the
ordinance.
D D
The court went on to observe:
E “The more serious offences where a person has in his E
possession arms and ammunition that is used or
intended to be used to endanger life or for some other
F F
criminal purpose, the penalty is a maximum known to
law of life imprisonment.”
G G
He went on to say at paragraph 52, Zervos said that:
H “A firearm and ammunition with the potential to kill or H
maim a person is a lethal weapon which ranks high in
I
the level of prohibited items under this offence. A I
person convicted of possession of such a firearm and
ammunition can normally expect a sentence after trial
J of 12 years’ imprisonment unless there are special J
features that warrant a reduction.”
K Ms Tsang mitigating on behalf of the defendant in this case K
has accepted that a sentence of 12 years’ imprisonment after
L trial is the norm. She has not suggested there are any L
special features that warrant a reduction in that starting
point.
M M
In this case, Ms Chak was in possession of the firearm and
ammunition in Count 2, that is, the pistol and 49 bullets
N which were given to her by the 2nd defendant. On N
instructions given by the 2nd defendant, she brought this
O gun to be test fired on 30 December 2018. It was at the O
abandoned school in Tai Wo where the 2nd defendant test
fired the gun and that was at Shing Ming Primary School. It
P was fully loaded and fired by the 2nd defendant at a wooden P
board in the presence of Chak.
Q Q
On 1 January 2019, police officers went to the abandoned
school and found the wooden board with a bullet hole in it
R and a discharged metal golden bullet head. On the same day, R
a cartridge was recovered at Tsui Wo House in Tai Wo Estate
where D2 lived. D2 told her he did not expect it to be so
S loud and fled the scene immediately afterwards. After that, S
it was she who took the gun and the bullets back home. That
was what was found in possession when the police arrested
T T
her on 1 January 2019.
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A Therefore, the level of sentence is dependent on the A
sentencing court’s view or the potential risk posed by the
arms and ammunition in the defendant’s possession, taking
B into account the circumstance of the case, the defendant’s B
background and the possibility of the arms and ammunition in
question.
C C
In this defendant’s evidence in 331 of 20, it was revealed
D that D2 Stephen had instructed her to use this gun found in D
her possession to kill Hobbit Lam Ching-fung, the intended
victim in 331/2020. I note specifically this is evidence
E which is not to be used as an aggravating factor in this E
case. It is just for background as to why this pistol was
still in her possession and why the 2nd defendant went to
F F
test fire the gun, that is, that Chak had this possession of
this gun which she had intended to use it for an illegal
G purpose. Bearing in mind the quantity of arms and G
ammunition in her possession and in fact that she had
carried the gun in public on 30 December to be test fired,
H and the gun had been used and the arms, and ammunitions were H
stored at her house when the arms and ammunitions were not
I
locked but just kept in her bedroom wardrobe, and the fact I
she was present when one of them was test fired, I have
considered these factors to be aggravating factors. I would
J therefore enhance her sentence by 1 year from the usual J
starting point of 12 years.
K Defendant, I take into account the principle of totality. K
Had you been convicted after trial, I would have taken a
L total starting point of 13 years’ imprisonment. The L
strongest mitigating factor is your early pleas of guilty at
the first opportunity before the Eastern Magistracy. For
M that, of course, the usual discount would apply and that is M
a one-third discount.
N You had, as I mentioned, given assistance to the prosecution N
in this case by giving evidence against the 1st and 2nd
O defendants. The fact that the 1st defendant was not O
convicted does not equate to your evidence not assisting the
prosecution. The case against the 1st defendant was very
P different from that of the 2nd defendant. In any event, Mr P
Cheung, Counsel on fiat, as stated for Ms Tsang for you,
accepts that the evidence you gave for the prosecution did
Q Q
assist the prosecution and you did try your best to assist
the prosecution. I agree.
R R
The Court of Final Appeal in Z v HKSAR [2007] 2 HKC 265
recognised that where the defendants have not only given
S information but have proceeded to give truthful and material S
evidence, a usual discount would be one of 50 per cent
including the one-third reduction for a plea of guilty. It
T T
is my view that you do warrant a 50 per cent discount.
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A Defendant, for Count 1 and Count 2, had you been convicted A
after trial, I would have taken a starting point of
13 years’ imprisonment. Giving you the 50 per cent discount
B in relation to each count, that term is reduced to one of B
6 years and 6 months’ imprisonment. I shall order each term
of imprisonment to run concurrent to each other.
C C
So that will mean that you shall be sentenced to 6 years and
D 6 months’ imprisonment. D
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
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