HCCC86/2022 HKSAR v. CHOI HONG KIU AND OTHERS - LawHero
HCCC86/2022
高等法院（刑事）Barnes J12/12/2022[2022] HKCFI 3745
HCCC86/2022
A A
HCCC 86/2022
[2022] HKCFI 3745
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 86 OF 2022
D D
-----------------
E HKSAR E
v
F F
Choi Hong-kiu (A1)
G Chung Ho-hin (A2) G
Lam Ka-kan (A3)
H ----------------- H
I
Before: Hon Barnes J I
Date: 13 December 2022 at 11.33 am
Present: Ms Lau Lee-lan Margaret, SPP of the Department of
J Justice, for HKSAR J
Mr Christopher Malcolm Grounds, instructed by Fan
Wong & Tso, assigned by DLA, for the 1st accused
K Mr Michael John Bruce Arthur, instructed by Ho, Tse, Wai K
& Partners, assigned by DLA, for the 2nd accused
L Mr Chan Siu-ming, instructed by JCC Cheung & Co, assigned L
by DLA, for the 3rd accused
Offence: (1) Possession of ammunition without licence (無牌管有彈
M 藥) (against A1) M
(2) Possession of explosive substances ( 管 有 爆 炸 品 )
N (against A1) N
(3) Possession of ammunition without licence (無牌管有彈
藥) (against A2)
O O
(4) Possession of arm without a licence (無牌管有槍械)
(against A2)
P (5) Giving possession of arm to unlicensed person (將槍 P
械交予無牌照的人管有) (against A2)
Q (6) Possession of arm without a licence (無牌管有槍械) Q
(against A3)
R R
---------------------------------
Transcript of the Audio Recording
S of the Sentence in the above Case S
---------------------------------
T T
COURT: Choi Hong-kiu, D1, was charged with one count of possession
of ammunition without a licence, that is the 1st charge,
U contrary to section 13(1) and (2) of the Firearms and U
CRT28/13.12.2022/JC 1 HCCC 86/2022(1)/Sentence
V V
A Ammunition Ordinance, Chapter 238 (I will refer to it as FAO) A
and one count of possession of explosive substances, the 2nd
charge, contrary to section 55(1) of the Crimes Ordinance,
B Chapter 200. B
Chung Ho-hin, the 2nd defendant, D2, faced three charges. He
C C
was charged with one count of possession of ammunition without
a licence, that is the 3rd charge, and one count of possession
D of arm without licence, 4th charge, both contrary to section D
13(1) and (2) of FAO. In addition, he was charged with one
count of giving possession of arm to unlicensed person, that
E is the 5th charge, contrary to section 15(1) of FAO. E
Lam Ka-kan, D3, faced one count of possession of arm without
F F
a licence, that is the 6th charge, contrary to section 13(1)
and (2) of FAO.
G G
All three defendants pleaded guilty before a magistrate and
were all committed to be sentenced in the Court of First
H Instance of the High Court. H
I
The Summary of Facts I
On 26 March 2020, police conducted a sweeping at Dragon’s
J Trail near Cape Collinson area in response to an anonymous J
report of suspicious activities inside a hut. An abandoned
stone hut was located later that day at the area (I will refer
K to it as the hut from now on). All three defendants were K
present in the living room of the hut.
L L
After a brief observation, police officers raided the hut.
All three defendants were arrested inside and upon search on
M their persons, no contrabands were found. M
The following are the facts relevant to D1. A search was
N conducted in the hut and in a luggage without a lock placed N
in the living room of the hut, the following items were found.
O O
Ammunition that is the subject of the 1st charge
P Live ammunition P
One round of live ammunition in .22” LR calibre. It is
Q Q
suitable for discharge in like calibre firearms such as
Walther PPK self-loading pistol.
R R
Bullets and Fired Bullets
S There are 249 bullets in 9 millimetre calibre and 9 fired S
bullets in 9 millimetre calibre.
T T
U U
CRT28/13.12.2022/JC 2 HCCC 86/2022(1)/Sentence
V V
A Fired Cartridge Cases Inserted with a Bullet A
There were ten fired cartridge cases in 5.56 x 45 millimetre
B calibre, each inserted with a bullet, and three fired B
cartridge cases in 9 x 19 millimetre calibre, each inserted
with a bullet.
C C
Fired Cartridge Cases, Cartridge Cases without Primers and
D Damaged Cartridge Cases without Primers D
There were two fired cartridge cases in 5.56 x 45 millimetre
E calibre; 372 fired cartridge cases in 9 x 19 millimetre E
calibre; 104 cartridges cases without primers in
9 x 19 millimetre calibre; 8 damaged cartridge cases without
F F
primers in 9 x 19 millimetre calibre; 252 fired cartridge
cases in .22” LR calibre; one fired cartridge case in
G .38 Super Auto calibre; one fired cartridge case in .38 Auto G
calibre.
H Fired Blank Cartridges H
I
16 fired blank cartridges in .22” LR calibre. Blank cartridge I
is loaded without a projectile and is designed to produce a
loud noise when being discharged.
J J
All the ammunitions listed above except item 1, that is the
one round of live ammunition in .22” LR calibre, were not
K suitable for firing, discharge or use in the state in which K
they were found or seized. Had the fired or discharged
L ammunition been live ones, they would have been suitable for L
discharge in like calibre firearms.
M Other Items M
There is one package containing four packs of powder named
N Prime-All. It is not an explosive. It is a precursor N
chemical commercially designed to be mixed and that would
O then produce explosive for ammunition primer. O
In some bottles and boxes, all are not being locked, placed
P in the living room of the hut, the following items were found P
and those are explosive substances subject of the 2nd charge:
Q Q
Eight firecrackers, which are manufactured fireworks. They
are deflagrating explosives capable of producing pyrotechnic
R effect, for example light, sound and smoke, upon ignition. R
The heat would be largely restricted to close proximity at
approximately 1-metre radius, which is capable of setting
S property on fire or burn injury to person. It may also cause S
life-changing injury to a person if they were held tight or
close to vulnerable area.
T T
23 packs of toy-gun caps, 5 packs of ball-type toy-gun caps
U and 46 party poppers, which are manufactured fireworks. They U
CRT28/13.12.2022/JC 3 HCCC 86/2022(1)/Sentence
V V
A are namely Armstrong’s mixture, which is one type of primary A
explosive that is sensitive and capable of producing practical
explosion. They are detonating explosive that upon
B initiation would produce very small scale of explosion. Since B
the explosive were separated in different plastic chambers
and their sensitive nature, it would be very difficult to
C C
extract the explosive in order to create a collective effect
or cause a bigger scale of explosion. Yet, if the explosive
D is somehow extracted, the amount seized is capable of causing D
serious injury, or even death, to person in close proximity.
E One plastic bottle containing green solid mixture containing E
nitrocellulose and zirconium. Nitrocellulose is one type of
primary explosive, which is sensitive and capable of producing
F F
practical explosion upon ignition. The substances as a whole
was tested and would only produce pyrotechnic effect that is
G heat and light, upon ignition, which would cause damage to G
property at approximately 1-metre radius, and capable of
setting property on fire or burn injury to person. It may
H also cause life-changing injury to person if they were held H
tight or close to vulnerable area.
I I
27 large packets of commercial welding powder and 41 small
packets of commercial welding powder, which are commercial
J exothermal welding powder separated into different bags for J
safe storage and transportation. Upon simple physical mixing,
that is one large and one small pack per set, they would
K become capable of producing pyrotechnic effect. When being K
mixed in proportion and ignited, they would burn and produce
L very high temperature of heat. The heat effect would be L
largely restricted to close proximity up to 2 to 4 metres
radius, that is presuming all powder seized are used all
M together, which would be capable of causing serious burn M
injury to any person and setting property on fire in close
proximity.
N N
Under caution at the scene and in the subsequent
O video-recorded interview, D1 remained silent. And there was O
a house search conducted at D1’s home. A house search was
conducted subsequently with a search warrant. Among other
P things, the following items were found. Under D1’s bed: P
Six Army Field Manuals which titled “Grenades and
Q Q
Pyrotechnics”, “Guerrilla Warfare and Special Forces
Operations”, “Armed Forces Censorship (Army)”, “Miscellaneous
R Chemical Munitions”, and “Boobytraps” respectively; six sets R
of illustration of firearms and ammunition, containing the
name of the parts or components but not data as to the
S dimensions of the respective firearm or ammunition; one set S
of notes, with contents of DIY homemade gun and crossbow;
laboratory tools, including test tubes and funnels.
T T
Those were the facts relating to D1.
U U
CRT28/13.12.2022/JC 4 HCCC 86/2022(1)/Sentence
V V
A Now, the following are facts relating or relevant to D2 and A
D3.
B The 3rd charge B
In a house search conducted at D2’s home at the flat in
C C
Fullview Garden, Siu Sai Wan, the following items were found
inside D2’s bedroom:
D D
Ammunition that is subject of the 3rd charge
E A fired shotgun cartridge in 12 Gauge calibre. It is not E
suitable for discharge in the state as it was seized.
Ammunition in 12 Gauge calibre is suitable for discharge in
F F
like calibre shotguns such as Remington Model 870 shotgun.
G D2 admitted that he was knowingly in possession of the G
ammunition charged under the 3rd charge and he did not have
the licence for possessing the said ammunition.
H H
4th charge
I I
In a video-recorded interview, D2 under caution stated inter
alia that he owned a modified air gun which he had kept at
J his home at Fullview Garden. No air gun was found during the J
house search at D2’s home.
K On 28 March 2020, a police report was made by the security K
guard of Fullview Garden that a bag containing what appeared
L to be a gun was found on the flower bed on the ground floor L
of Fullview Garden.
M Upon examination, the object was found to be a spring powered M
air gun designated to discharge .22” calibre pellets. The
said air gun was marked with “GAMO”, “CFX Royal” and this set
N of number, “04-1C-505134-14”. N
O Functional examination and test shooting showed that the said O
air gun was capable of discharging .22” calibre pellet with
muzzle energy at 15.75 joules, which is within the definition
P of ‘arm’ under section 2 of the FAO. P
Government Laboratory found a matching result of D2’s DNA on
Q Q
the handle of the said air gun. D2 was further cautioned
after his DNA was found on the said air gun. D2 remained
R silent under caution. R
D2 admitted in court that he was knowingly in possession of
S the arm charged under the 4th charge and he did not have the S
licence for possessing of the said arm.
T T
5th charge
U U
CRT28/13.12.2022/JC 5 HCCC 86/2022(1)/Sentence
V V
A In the video-recorded interview, D2 under caution stated, A
inter alia, among other things, that he had purchased an air
gun via the internet and had modified the muzzle power of the
B said air gun from 2 joules to about 30 joules on his own. He B
had then given the said modified air gun to D3 about a month
prior to his arrest.
C C
And D2 admitted that he gave possession to D3, or knowingly
D permitted or allowed D3 to obtain possession, the arm charged D
under the 6th charge, and he knew D3 was an unlicensed person.
E 6th charge E
In a house search conducted at D3’s home at Metropole Building
F F
in King’s Road, North Point, the following items were found
inside D3’s bedroom. A spring powered air gun designated to
G discharge .22” calibre pellets. The said air gun was marked G
with “GAMO”, “G-MAGNUM 1250” and “04-1C-803406-19”.
H Functional examination and test shooting showed that the said H
air gun was capable of discharging .22” calibre pellet with
I
muzzle energy at 34.10 joules, which is within the definition I
of ‘arm’ under section 2 of the FAO.
J In the video-recorded interview, D3 under caution stated, J
inter alia, that the said air gun seized from his residence
belonged to him. D2 purchased and modified the said air gun
K for him and he had paid D2 about $4,000 for it. K
L D3 admitted that he was knowingly in possession of the arm L
charged under the 6th charge and he did not have the licence
for possessing the said arm.
M M
Background and Mitigation, D1
N According to the antecedents statement, D1 was born in 1999 N
and is now 23 years of age. He has a clear record. He
O completed Form 6 and was studying horticultural design, O
year 3, at the Technological and Higher Education Institute.
D1 is single and prior to his arrest he was living with his
P parents. P
At the outset, Mr Christopher Grounds, counsel for D1,
Q Q
stressed the fact that D1 had been detained since 26 (March?)
of 2020. By the time of the sentence, D1 had been detained
R for 2 years and 9 months. R
On the basis that D1 is given a one-third discount and
S remission for good behaviour, 2 years and 9 months would mean S
a starting point of around 6 years. Since D1 gave evidence
in a murder trial, if D1 is given a 50 per cent discount as
T T
submitted, that would mean a starting point of over 8 years.
Mr Grounds stressed that both these calculations do not take
U into account D1’s youth and positive good character. U
CRT28/13.12.2022/JC 6 HCCC 86/2022(1)/Sentence
V V
A A
Mr Grounds provided this Court with more background
information in relation to D1. When D1 was still in school,
B his extracurricular activities included Taekwondo and B
archery. He excelled in archery. He developed an interest
to work as an arborist and was working for a degree in
C C
horticultural and landscape management at the Technological
and Higher Education Institute. He was studying year 3 at
D the time of arrest. D
D1 had a clear record prior to the present charges, he has
E completed training in first aid, mountain craft, rock E
climbing, mountain search and rescue activities. D1 was
dedicated and served in the community and helping others in
F F
need. D1 was a war gamer. He gave evidence in a murder trial
before me against his fellow war gaming participants. I will
G say more about this later on. G
D1 had been fascinated with military items since young. The
H military matters found under his bed were collectible items. H
Mr Grounds submitted that it was D1’s fascination with
I
military matters which may explain why D1 was in possession I
of so many spent and discharged ammunition.
J In respect of the 1st charge, Mr Grounds submitted there was J
no firearm involved. Of the ammunition, only one was a live
one, all others were spent, used or discharged. There is
K nothing to show how easy or difficult to reconstitute any of K
the discharged ammunition into live ones or whether that was
L even possible. Mr Grounds stressed that D1 maintained that L
the live ammunition was found along with many of the spent
ones at a shooting range in Hong Kong. D1 had no intention
M or desire to reconstitute any of the spent ones into live M
ammunition.
N Mr Grounds referred this Court to a number of authorities, N
including the case of HKSAR v Chan Chi Fun, R v Man Hung Pui
O and HKSAR v Wong Kin Wai. With reference to the factors O
mentioned in Chan Chi Fun, Mr Grounds submitted the following:
P (1) All but one of the ammunition was either spent or P
discharged.
Q Q
(2) D1 was not carrying the ammunition at the time.
R (3) D1 was a war gamer and he possessed the ammunition R
as a collector with no intention of using the
ammunition for any unlawful purposes.
S S
(4) While the ammunition was not under lock, they were
inside a messy hut in a remote area, the risk of
T T
these ammunition falling into the wrong hands is
not great.
U U
CRT28/13.12.2022/JC 7 HCCC 86/2022(1)/Sentence
V V
A (5) Even if they did fall into the wrong hands, say for A
the live one, the ammunition would have to be
reconstituted to make it usable.
B B
(6) D1 had a clear record.
C C
(7) D1 was of relative young age at the time of the
offence.
D D
(8) D1 rendered assistance to the authorities by giving
evidence in the murder trial for the prosecution.
E E
Mr Grounds submitted that the starting point should be
somewhere near the lower or lowest end of the range of 3 to
F F
6 years.
G As for the last item of rendering assistance to the authority, G
Mr Grounds relied on the Court of Final Appeal case of Z v
HKSAR which held that the policy of accepting assistance to
H authority as mitigation could relate to crimes that are H
unconnected with the one with which defendant is being
I
sentenced and submitted that such pre-arrest assistance I
should be taken into account.
J Alternatively, Mr Grounds submitted that acting as a witness J
for the prosecution in a murder trial together with his clear
record, the court can give D1 an appropriate deduction of
K sentence on his positive good character. K
L In relation to the 2nd charge, Mr Grounds stressed that D1 L
was charged with possession of explosive substances, not the
more serious charge such as making or keeping explosives with
M the intent to endanger life. Mr Grounds submitted that the M
explosive charge is of low level culpability. The Summary of
Facts indicate there might be difficulties in extracting some
N of the explosive or relevant substance. Any heat, ignition N
or explosion would have to be in the immediate proximity of
O a person rendering serious life-endangering injuries remote. O
Mr Grounds also submitted that many of the items found are
P sold in Hong Kong. If people were minded to make explosives, P
they could easily access sources to obtain welding powder,
toy-gun caps, firecrackers and so on. These people would not
Q Q
be in need of a chance finding of these seized materials.
R Mr Grounds referred to the case of HKSAR v Chan Yiu Shing and R
HKSAR v Li Chung Man, Alfred and submitted that an appropriate
starting point for the 2nd charge should fall within 2 to 3
S years. Mr Grounds further submitted that the possession of S
the explosive substances was committed in the course of a
single transaction with the 1st count so that both sentences
T T
should run concurrently.
U U
CRT28/13.12.2022/JC 8 HCCC 86/2022(1)/Sentence
V V
A Finally, Mr Grounds submitted that D1 had effectively served A
a total sentence of which the starting point would be slightly
above 6 years, that is with the one-third discount and good
B behaviour remission or slightly above 8 years, that is with B
the 50 per cent discount and good behaviour remission. Mr
Grounds urged this Court to impose a sentence which would
C C
result in the immediate release of D1.
D D1 wrote to this Court expressing his deep regret in having D
committed the present offences which affected not only his
family but also his friends and other people in the community.
E He claimed that during his incarceration, he did not waste E
time and took courses to enrich himself. He is still
interested to work as an arborist in the future and asked for
F F
leniency.
G D1’s parent’s, his aunt, his former class teacher, his former G
biology teacher, his training instructor of the Civil Aid
Service, a registered arborist in Hong Kong to whom D1 had
H worked as an assistant and a volunteer worker who had visited H
D1 after the latter was remanded and written to me.
I I
D1 was described as a well-behaved child, a filial son, an
honest and kind-hearted person who was willing to render
J assistance to others and are diligent worker. They all asked J
leniency on behalf of D1, believing that D1 committed the
offence due to ignorance. I was also provided with copies of
K D1’s school reports, transcript of studies and various K
certificates and awards in support.
L L
D2
M According to the antecedents statement, D2 was born in June M
1996 and is a single man with no previous criminal conviction.
He had completed Form 6 education and has worked as a part-
N time delivery worker since graduation. Prior to his arrest, N
D2 was living with his parents and an older brother. Mr
O Michael Arthur, counsel for D2, submitted that at the time of O
the offence D2 was a 24-year-old student with utmost good
character and strong family support. D2 took a training
P course to be a plumber and took an exam on 19 November this P
year. I was informed that D2 had passed the exam so he looks
forward to working as a plumber.
Q Q
Mr Arthur submitted D2 is a young man fascinated with guns,
R which leads to the present offence. Mr Arthur stressed that R
the short gun cartridge in Charge 3 was a spent one which was
given to him by someone during the war game.
S S
As for Charge 4, Mr Arthur referred to D2’s admission in his
letter to the Court that he had hidden the air gun in the
T T
flowerbed so as not to let his family know that he had such
an item and that D2 would bring it home to play with it when
U no one was around. As to why D2 did not tell the police the U
CRT28/13.12.2022/JC 9 HCCC 86/2022(1)/Sentence
V V
A whereabouts of that air gun, Mr Arthur after taking A
instructions submitted that D2 was panicking at the time and
could not recall where he had placed it.
B B
Mr Arthur accepted that the air gun could have fallen into
the hands of criminals but given D2’s good character, such a
C C
possibility was remote. Mr Arthur submitted that D2 did not
harbour any sinister motive in relation to this offence.
D D
As for Charge 5, Mr Arthur submitted that D2 bought the air
gun on the internet and gave it as a gift to his good friend,
E D3. D2 in his letter to the Court confessed that even though E
he had no unlawful intention when he gifted the air gun to
D3, he could have easily and accidentally put himself and
F F
others to harm.
G Regarding the appropriate sentence, Mr Arthur submitted that G
a starting point much less than 6 months would be appropriate
for Charge 3, citing the case of HKSAR v Yu Chun Lung. As
H for Charge 4, with reference to R v Leung Shiu Lun and HKSAR H
v Lam Fu Kin, Mr Arthur submitted a starting point no more
I
than 15 months would be appropriate. For Charge 5, Mr Arthur I
submitted that on the facts of the case a starting point no
more than 12 months should be imposed.
J J
Mr Arthur stressed the fact that D2 was in custody for
691 days before he was released on bail on 14 February 2022.
K D2 had in fact already served the best part of 2 years of K
imprisonment. Mr Arthur urged this Court not to return D2 to
L gaol for a further period of incarceration. L
D2 wrote to this Court expressing his deep regret and for
M having committed the present offences. D2 claimed to have M
interest in collecting air guns, treating them as artistic
items without any intention of harming anyone or damaging any
N properties. He stressed that he had learned a lesson and N
will think before he act in the future to ensure he will not
O commit any offence again. O
D2’s parents, his neighbour, his kung fu master and his
P classmates wrote to this Court, mitigating on D2’s behalf. P
The picture painted was that D2 was a filial son and a
kind-hearted person who would render assistance to those in
Q Q
need, even strangers. They all ask for leniency on behalf of
D2.
R R
I was also provided with copies of D2’s academic reports at
school and various certificates and commendation for his
S participation in different sporting events and doing S
voluntary work for the society.
T T
D3
U U
CRT28/13.12.2022/JC 10 HCCC 86/2022(1)/Sentence
V V
A According to the antecedent statement, D3 was born in January A
1997, so he is now 25 years of age. He is a single man with
no criminal conviction. He has completed a film studies
B course at the Hong Kong Metropolitan University in 2019 and B
had worked at the Ocean Park, earning $10,000 per month.
Prior to his arrest, D3 was living with his parents. D3 has
C C
an elder brother who is a teacher.
D Mr Chan Siu-ming, counsel for D3, provided more background D
information on D3. D3’s father is a chef and his mother is
a housewife. Having completed the film studies, D3 will
E obtain his degree after attending an additional English E
language course. D3 wishes to wait for the conclusion of
this case before he enrolled himself to attend the said
F F
course. D3 is now working in a café, earning $10,000 a month.
G Mr Chan referred to the factors to be considered for the G
possession of arm without a licence set out in the case of
Chan Chi Fun and submitted that the air gun in question is of
H a less serious nature when compared with a rifle or a pistol. H
D3 was not physically carrying the air rifle which Mr Chan
I
submitted was properly stored or kept inside D3’s wardrobe, I
therefore not accessible by other offenders.
J Mr Chan also referred to the case of R v Leung Shiu Lun, that J
is the possession of four air rifles and pistols and Secretary
for Justice v Leung Kwok Chi, that is the possession of large
K number of firearms and ammunitions for my consideration. K
L Mr Chan urged this Court to pass a sentence as lenient as L
possible, bearing in mind D3’s possession of the air rifle
was no more than his desire to have a collectible for fun.
M The minimal risk for the said rifle to be used for any illegal M
purpose, D3’s good character, good education, and D3’s
eagerness to make contribution by working in the society.
N N
D3 wrote to this Court expressing his deep regret for having
O committed the present offence due to his ignorance and O
curiosity. D3 claimed to have learned a lesson and promised
to be a law-abiding citizen in the future.
P P
D3’s former school teacher and general manager of the café D3
is currently working at have also written to this Court asking
Q Q
for leniency. D3 was mainly described as kind, well-behaved,
diligent and helpful young man who had committed the present
R offence due to his negligence or ignorance. R
Now, the following is my consideration for sentence.
S Possession of arms and ammunition without a licence is a S
serious offence. A person convicted of this offence on
indictment is liable to a fine of $100,000 and imprisonment
T T
for 14 years. Possession of explosive substances is also a
serious offence. A person convicted of this offence on
U indictment is liable to imprisonment also for 14 years. U
CRT28/13.12.2022/JC 11 HCCC 86/2022(1)/Sentence
V V
A A
I am grateful to all defence counsel for bringing my attention
to various judgments concerning arms and ammunition. I should
B add the prosecution as well because it is in the bundle and B
also to Mr Grounds for those involving explosive substances.
C C
In the case of Chan Chi Fun, the Court of Appeal stated -- I
have just taken the rest from the headnote:
D D
“As a rule, this type of offence would attract a severe
and deterrent sentence, for the reason that firearms and
E ammunition posed a potentially grave danger to the E
society. In determining the appropriate sentence, the
mitigating or aggravating factors included:
F F
(a) the type of firearm and ammunition involved;
G G
(b) whether the defendant physically carried the
firearm and ammunition;
H H
(c) whether the firearm was loaded;
I I
(d) whether the firearm had been used;
J (e) whether the defendant intended to use the J
firearm for illegal purposes;
K (f) whether the firearm and ammunition was K
properly stored or easily accessible by
L offenders, and L
(g) whether the defendant had a clear record.
M M
The level of sentence depended on the court’s view of
the potential risk posed by the firearm and ammunition
N in question, taking into account the circumstances of N
the offence and the defendant’s background.”
O O
These relevant factors were adopted in the case of Secretary
for Justice v Yan Shen and the Court of Appeal in that case
P stated that: P
“...societal protection is the paramount consideration
Q Q
in order to maintain the safety of Hong Kong and
immediate custodial sentence, often for a substantial
R term, should be imposed except in truly exceptional R
circumstances.”
S The Court of Appeal in the case of Secretary for Justice v S
Leung Kwok Chi also referred to the above two cases and
adopted the same.
T T
First of all, I accept that the possession of ammunition is
U usually less serious than the possession of arms (see the U
CRT28/13.12.2022/JC 12 HCCC 86/2022(1)/Sentence
V V
A case of Man Hung Pui). I also accept that the possession of A
an air gun or air rifle is less serious than the possession
of unlicensed firearms such as revolvers and pistols (see the
B case of Leung Shiu Lun). B
In the case of Man Hung Pui, it was a 17-year-old appellant
C C
with previous convictions for robbery, theft and possession
of offensive weapon and he was found in possession of six
D rounds of live 7.62 millimetre calibre ammunition. The trial D
judge adopted a starting point of “at least 7 years” and the
Court of Appeal ruled that the appropriate starting point was
E 4 years. So I take that as an example. E
Now, first of all, D1, 1st charge. In the present case, D1
F F
was in possession of one live ammunition and a large number,
I count there was 1,027 of spent or discharged ammunition.
G So having considered the circumstances of the case, I accept G
the submission made by Mr Grounds on behalf of D1 in relation
to the factors identified in Chan Chi Fun. I accept that D1
H was a person of relative young age at the time of the offence H
and of positively good character. I am of the view that a
I
starting point of 3½ years is appropriate for the 1st charge. I
With a one-third discount for plea tendered at the earliest
available opportunity, the sentence would be 28 months, so 2
J years and 4 months. J
And it is true that D1 gave evidence as a prosecution witness
K in the murder trial before me. However, I do not accept that K
such a course of action would entitle D1 to be treated on the
L same footing as an informer who had rendered assistance to L
the authority prior to committing the offence for which he
was to be sentenced. I agree that all the background
M information as well as D1’s act of giving evidence before me M
entitle him to a slight further discount. I will give him a
further 2 months discount to reflect that. So the resulting
N sentence is 2 years 2 months. N
O 2nd charge O
For the 2nd charge, the amount of explosive substances cannot
P be said to be small. Eight firecrackers, 23 packs of toy gun P
caps, five packets of ball-type toy gun caps, 46 party
poppers, one plastic bottle containing nitrocellulose and
Q Q
zirconium, 27 large packets of commercial welding powder and
41 small packets of commercial welding powder.
R R
Taking on board what Mr Grounds has submitted on D1’s behalf,
I am of the view that a starting point of 3½ years’
S imprisonment is also appropriate for this offence. With a S
one-third discount, the sentence would be 28 months and I
will again give D1 an extra deduction of 2 months. So the
T T
sentence is therefore 2 years and 2 months.
U The Question of Totality U
CRT28/13.12.2022/JC 13 HCCC 86/2022(1)/Sentence
V V
A A
While the offending items were found inside the hut on the
same day, as the nature of the explosive substances is very
B different from ammunition, I do not accept that both sentences B
should run totally concurrently. Having considered the
totality principle, I am of the view that a total sentence of
C C
3 years would properly reflect the criminality involved.
D D1 had been in custody for just over 2 years and 9 months. D
With a sentence of 3 years, D1 would have to serve another
3 months or so in prison. If D1 had been sent to gaol he
E would have a further discount of one-third if he had been of E
good behaviour. Although it is very difficult for me to gauge
because D1 was not in gaol, he was in the remand centre. So
F F
having considered all the circumstances, I am satisfied that
this is proper for me to exercise my discretion to further
G reduce the sentence to one of 2 years and 8 months so that D1 G
can be immediately released.
H So for the 1st charge, D1 is sentenced to 2 years and 2 H
months’ imprisonment. 2nd charge, D1 is also sentenced to
I
2 years and 2 months’ imprisonment. 6 months of the 2nd I
charge is to run consecutively to the 2 years and 2 months
imposed on the 1st charge, making a total of 2 years and
J 8 months. J
D2, 3rd charge
K K
In the present case, the single shotgun cartridge possessed
L by D2, a person of clear record and positively good character L
was spent, so it did not pose any harm to the society. I
accept that D2 received it as a decorative gift and there is
M no evidence that he possessed it for any illegal purpose. I M
am of the view that a starting point of 6 months is appropriate
for Charge 3.
N N
Charge 4 and 5th charge
O O
In respect of Charge 4, the air gun in question was a spring-
powered one capable of discharging .22 calibre pellets with
P muzzle energy of 15.75 joules. It was put inside a bag and P
placed on the flowerbed of a residential complex. Needless
to say, there was a risk that the air gun might have fallen
Q Q
into the hands of criminals and put to illegal use.
R I would add here that even though D2 admitted to the police R
that he possessed the air gun, when the police failed to
locate any inside D2’s home, D2 did not own up that the gun
S was actually hidden in the flowerbed. When D2 was cautioned S
by the police and after the air gun was found, he remained
silent. Now I am not suggesting for one moment that D2 was
T T
obliged to answer when questioned about the air gun under
caution. However, his silence under caution does appear to
U U
CRT28/13.12.2022/JC 14 HCCC 86/2022(1)/Sentence
V V
A run contrary to his early admission to the police that there A
was a gun at his home when the police did not find any.
B Now I was given to understand that D2 was in a panic at the B
time and could not recall where he had placed the gun. In
any event, I do bear in mind the fact that D2 pleaded guilty
C C
at the earliest available opportunity and is therefore
entitled to full discount even though he made no admission
D when cautioned after the gun was found. D
Although the mechanism was spring powered, I cannot ignore
E the fact that the muzzle energy was at 15.75 joules. Now, I E
accept that D2 was a gun enthusiast and he did not have any
illegal intention in possessing the gun. Having considered
F F
all the circumstances, in particular the fact that the air
gun was left in the open, at a place easily found by others
G and the muzzle energy of 15.75 was more than seven times the G
statutory limit of 2 joules, I am of the view that a starting
point of 18 months is appropriate.
H H
I take a more serious view of Charge 5, the 5th charge. The
I
air gun involved was a spring powered one, but the muzzle I
energy was 34.10 joules, 17 times more than the statutory
limit of 2 joules which was modified by D2. Now, according
J to D2, he passed the air gun to D3 as a gift. D3 however J
said in the video-recorded interview that he had paid D2
$4,000 to modify the air gun. So it is not a gift.
K K
Now, in any event it was clarified later that the gun was
L indeed given by D2 to D3 as a gift and what D2 said in the L
video-recorded interview was incorrect and that he was at the
time too frightened and said something wrong.
M M
Anyways, the maximum sentence for this offence is 5 years’
imprisonment upon conviction on indictment. The
N circumstances of this case warrant a starting point of 2 years N
in my view.
O O
Now, D2 pleaded guilty to all three charges at the earliest
available opportunity and is entitled to a full one-third
P discount. So with the discount the sentence for the three P
charges are respectively 4 months as for the 3rd charge,
12 months as for the 4th charge, and 16 months for the
Q Q
5th charge.
R Having considered the totality principle, I am of the view R
that an overall sentence of 2 years will properly reflect
D2’s criminality.
S S
D2 had been in custody for 691 days so just 39 days short of
2 years. With good behaviour, D2 would have been given
T T
another one-third discount for the 2 year sentence, though as
in the case of D1, it is rather difficult to gauge at this
U U
CRT28/13.12.2022/JC 15 HCCC 86/2022(1)/Sentence
V V
A point because D2 was remanded at the Lai Chi Kok Reception A
Centre, not actually in gaol.
B I do not think any useful purpose would be served by sending B
D2 back to gaol to serve just a month or so of the sentence,
particularly in view of the positively good character he
C C
possessed prior to the commission of the present offence and
the fact that he is now qualified to work as a plumber. To
D ensure that does not happen, I would adjust the sentence to D
one of 22 months so that D2 will be immediately released.
E So the sentence is as follows. Charge 3, 4 months; Charge 4, E
12 months, concurrent with Charge 3; Charge 5, 16 months, 10
months of which to run consecutively to Charge 4 but
F F
concurrent with Charge 3 so making a total of 22 months.
G D3, the 6th charge G
I also accept that D3 did not have any illegal purpose for
H possessing the air gun. I cannot however ignore the fact H
that the air gun was modified to a rather powerful muzzle
I
energy at 34.10 joules. While the air gun was kept inside I
D3’s wardrobe, I do not agree that it was properly stored.
It was not under lock and a burglar could have gained access
J to it. Having considered all the circumstances and bearing J
in mind the defendant’s good character, I am of the view that
a starting point of 2 years is appropriate.
K K
D3 pleaded guilty at the earliest available opportunity and
L is entitled to the full one-third discount. With the discount L
the sentence is one of 16 months.
M D3 was in custody since 26 March 2020 and was released on M
bail on 14 February 2022 so he was in custody for a period of
691 days which is longer than the 16 months imposed. But of
N course he was kept in the remand centre instead of a gaol. N
So for Charge 6 or 6th charge, D3 is sentenced to 16 months’
O imprisonment. O
P P
Q Q
R R
S S
T T
U U
CRT28/13.12.2022/JC 16 HCCC 86/2022(1)/Sentence
V V
A A
HCCC 86/2022
[2022] HKCFI 3745
B B
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
C C
COURT OF FIRST INSTANCE
CRIMINAL CASE NO 86 OF 2022
D D
-----------------
E HKSAR E
v
F F
Choi Hong-kiu (A1)
G Chung Ho-hin (A2) G
Lam Ka-kan (A3)
H ----------------- H
I
Before: Hon Barnes J I
Date: 13 December 2022 at 11.33 am
Present: Ms Lau Lee-lan Margaret, SPP of the Department of
J Justice, for HKSAR J
Mr Christopher Malcolm Grounds, instructed by Fan
Wong & Tso, assigned by DLA, for the 1st accused
K Mr Michael John Bruce Arthur, instructed by Ho, Tse, Wai K
& Partners, assigned by DLA, for the 2nd accused
L Mr Chan Siu-ming, instructed by JCC Cheung & Co, assigned L
by DLA, for the 3rd accused
Offence: (1) Possession of ammunition without licence (無牌管有彈
M 藥) (against A1) M
(2) Possession of explosive substances ( 管 有 爆 炸 品 )
N (against A1) N
(3) Possession of ammunition without licence (無牌管有彈
藥) (against A2)
O O
(4) Possession of arm without a licence (無牌管有槍械)
(against A2)
P (5) Giving possession of arm to unlicensed person (將槍 P
械交予無牌照的人管有) (against A2)
Q (6) Possession of arm without a licence (無牌管有槍械) Q
(against A3)
R R
---------------------------------
Transcript of the Audio Recording
S of the Sentence in the above Case S
---------------------------------
T T
COURT: Choi Hong-kiu, D1, was charged with one count of possession
of ammunition without a licence, that is the 1st charge,
U contrary to section 13(1) and (2) of the Firearms and U
CRT28/13.12.2022/JC 1 HCCC 86/2022(1)/Sentence
V V
A Ammunition Ordinance, Chapter 238 (I will refer to it as FAO) A
and one count of possession of explosive substances, the 2nd
charge, contrary to section 55(1) of the Crimes Ordinance,
B Chapter 200. B
Chung Ho-hin, the 2nd defendant, D2, faced three charges. He
C C
was charged with one count of possession of ammunition without
a licence, that is the 3rd charge, and one count of possession
D of arm without licence, 4th charge, both contrary to section D
13(1) and (2) of FAO. In addition, he was charged with one
count of giving possession of arm to unlicensed person, that
E is the 5th charge, contrary to section 15(1) of FAO. E
Lam Ka-kan, D3, faced one count of possession of arm without
F F
a licence, that is the 6th charge, contrary to section 13(1)
and (2) of FAO.
G G
All three defendants pleaded guilty before a magistrate and
were all committed to be sentenced in the Court of First
H Instance of the High Court. H
I
The Summary of Facts I
On 26 March 2020, police conducted a sweeping at Dragon’s
J Trail near Cape Collinson area in response to an anonymous J
report of suspicious activities inside a hut. An abandoned
stone hut was located later that day at the area (I will refer
K to it as the hut from now on). All three defendants were K
present in the living room of the hut.
L L
After a brief observation, police officers raided the hut.
All three defendants were arrested inside and upon search on
M their persons, no contrabands were found. M
The following are the facts relevant to D1. A search was
N conducted in the hut and in a luggage without a lock placed N
in the living room of the hut, the following items were found.
O O
Ammunition that is the subject of the 1st charge
P Live ammunition P
One round of live ammunition in .22” LR calibre. It is
Q Q
suitable for discharge in like calibre firearms such as
Walther PPK self-loading pistol.
R R
Bullets and Fired Bullets
S There are 249 bullets in 9 millimetre calibre and 9 fired S
bullets in 9 millimetre calibre.
T T
U U
CRT28/13.12.2022/JC 2 HCCC 86/2022(1)/Sentence
V V
A Fired Cartridge Cases Inserted with a Bullet A
There were ten fired cartridge cases in 5.56 x 45 millimetre
B calibre, each inserted with a bullet, and three fired B
cartridge cases in 9 x 19 millimetre calibre, each inserted
with a bullet.
C C
Fired Cartridge Cases, Cartridge Cases without Primers and
D Damaged Cartridge Cases without Primers D
There were two fired cartridge cases in 5.56 x 45 millimetre
E calibre; 372 fired cartridge cases in 9 x 19 millimetre E
calibre; 104 cartridges cases without primers in
9 x 19 millimetre calibre; 8 damaged cartridge cases without
F F
primers in 9 x 19 millimetre calibre; 252 fired cartridge
cases in .22” LR calibre; one fired cartridge case in
G .38 Super Auto calibre; one fired cartridge case in .38 Auto G
calibre.
H Fired Blank Cartridges H
I
16 fired blank cartridges in .22” LR calibre. Blank cartridge I
is loaded without a projectile and is designed to produce a
loud noise when being discharged.
J J
All the ammunitions listed above except item 1, that is the
one round of live ammunition in .22” LR calibre, were not
K suitable for firing, discharge or use in the state in which K
they were found or seized. Had the fired or discharged
L ammunition been live ones, they would have been suitable for L
discharge in like calibre firearms.
M Other Items M
There is one package containing four packs of powder named
N Prime-All. It is not an explosive. It is a precursor N
chemical commercially designed to be mixed and that would
O then produce explosive for ammunition primer. O
In some bottles and boxes, all are not being locked, placed
P in the living room of the hut, the following items were found P
and those are explosive substances subject of the 2nd charge:
Q Q
Eight firecrackers, which are manufactured fireworks. They
are deflagrating explosives capable of producing pyrotechnic
R effect, for example light, sound and smoke, upon ignition. R
The heat would be largely restricted to close proximity at
approximately 1-metre radius, which is capable of setting
S property on fire or burn injury to person. It may also cause S
life-changing injury to a person if they were held tight or
close to vulnerable area.
T T
23 packs of toy-gun caps, 5 packs of ball-type toy-gun caps
U and 46 party poppers, which are manufactured fireworks. They U
CRT28/13.12.2022/JC 3 HCCC 86/2022(1)/Sentence
V V
A are namely Armstrong’s mixture, which is one type of primary A
explosive that is sensitive and capable of producing practical
explosion. They are detonating explosive that upon
B initiation would produce very small scale of explosion. Since B
the explosive were separated in different plastic chambers
and their sensitive nature, it would be very difficult to
C C
extract the explosive in order to create a collective effect
or cause a bigger scale of explosion. Yet, if the explosive
D is somehow extracted, the amount seized is capable of causing D
serious injury, or even death, to person in close proximity.
E One plastic bottle containing green solid mixture containing E
nitrocellulose and zirconium. Nitrocellulose is one type of
primary explosive, which is sensitive and capable of producing
F F
practical explosion upon ignition. The substances as a whole
was tested and would only produce pyrotechnic effect that is
G heat and light, upon ignition, which would cause damage to G
property at approximately 1-metre radius, and capable of
setting property on fire or burn injury to person. It may
H also cause life-changing injury to person if they were held H
tight or close to vulnerable area.
I I
27 large packets of commercial welding powder and 41 small
packets of commercial welding powder, which are commercial
J exothermal welding powder separated into different bags for J
safe storage and transportation. Upon simple physical mixing,
that is one large and one small pack per set, they would
K become capable of producing pyrotechnic effect. When being K
mixed in proportion and ignited, they would burn and produce
L very high temperature of heat. The heat effect would be L
largely restricted to close proximity up to 2 to 4 metres
radius, that is presuming all powder seized are used all
M together, which would be capable of causing serious burn M
injury to any person and setting property on fire in close
proximity.
N N
Under caution at the scene and in the subsequent
O video-recorded interview, D1 remained silent. And there was O
a house search conducted at D1’s home. A house search was
conducted subsequently with a search warrant. Among other
P things, the following items were found. Under D1’s bed: P
Six Army Field Manuals which titled “Grenades and
Q Q
Pyrotechnics”, “Guerrilla Warfare and Special Forces
Operations”, “Armed Forces Censorship (Army)”, “Miscellaneous
R Chemical Munitions”, and “Boobytraps” respectively; six sets R
of illustration of firearms and ammunition, containing the
name of the parts or components but not data as to the
S dimensions of the respective firearm or ammunition; one set S
of notes, with contents of DIY homemade gun and crossbow;
laboratory tools, including test tubes and funnels.
T T
Those were the facts relating to D1.
U U
CRT28/13.12.2022/JC 4 HCCC 86/2022(1)/Sentence
V V
A Now, the following are facts relating or relevant to D2 and A
D3.
B The 3rd charge B
In a house search conducted at D2’s home at the flat in
C C
Fullview Garden, Siu Sai Wan, the following items were found
inside D2’s bedroom:
D D
Ammunition that is subject of the 3rd charge
E A fired shotgun cartridge in 12 Gauge calibre. It is not E
suitable for discharge in the state as it was seized.
Ammunition in 12 Gauge calibre is suitable for discharge in
F F
like calibre shotguns such as Remington Model 870 shotgun.
G D2 admitted that he was knowingly in possession of the G
ammunition charged under the 3rd charge and he did not have
the licence for possessing the said ammunition.
H H
4th charge
I I
In a video-recorded interview, D2 under caution stated inter
alia that he owned a modified air gun which he had kept at
J his home at Fullview Garden. No air gun was found during the J
house search at D2’s home.
K On 28 March 2020, a police report was made by the security K
guard of Fullview Garden that a bag containing what appeared
L to be a gun was found on the flower bed on the ground floor L
of Fullview Garden.
M Upon examination, the object was found to be a spring powered M
air gun designated to discharge .22” calibre pellets. The
said air gun was marked with “GAMO”, “CFX Royal” and this set
N of number, “04-1C-505134-14”. N
O Functional examination and test shooting showed that the said O
air gun was capable of discharging .22” calibre pellet with
muzzle energy at 15.75 joules, which is within the definition
P of ‘arm’ under section 2 of the FAO. P
Government Laboratory found a matching result of D2’s DNA on
Q Q
the handle of the said air gun. D2 was further cautioned
after his DNA was found on the said air gun. D2 remained
R silent under caution. R
D2 admitted in court that he was knowingly in possession of
S the arm charged under the 4th charge and he did not have the S
licence for possessing of the said arm.
T T
5th charge
U U
CRT28/13.12.2022/JC 5 HCCC 86/2022(1)/Sentence
V V
A In the video-recorded interview, D2 under caution stated, A
inter alia, among other things, that he had purchased an air
gun via the internet and had modified the muzzle power of the
B said air gun from 2 joules to about 30 joules on his own. He B
had then given the said modified air gun to D3 about a month
prior to his arrest.
C C
And D2 admitted that he gave possession to D3, or knowingly
D permitted or allowed D3 to obtain possession, the arm charged D
under the 6th charge, and he knew D3 was an unlicensed person.
E 6th charge E
In a house search conducted at D3’s home at Metropole Building
F F
in King’s Road, North Point, the following items were found
inside D3’s bedroom. A spring powered air gun designated to
G discharge .22” calibre pellets. The said air gun was marked G
with “GAMO”, “G-MAGNUM 1250” and “04-1C-803406-19”.
H Functional examination and test shooting showed that the said H
air gun was capable of discharging .22” calibre pellet with
I
muzzle energy at 34.10 joules, which is within the definition I
of ‘arm’ under section 2 of the FAO.
J In the video-recorded interview, D3 under caution stated, J
inter alia, that the said air gun seized from his residence
belonged to him. D2 purchased and modified the said air gun
K for him and he had paid D2 about $4,000 for it. K
L D3 admitted that he was knowingly in possession of the arm L
charged under the 6th charge and he did not have the licence
for possessing the said arm.
M M
Background and Mitigation, D1
N According to the antecedents statement, D1 was born in 1999 N
and is now 23 years of age. He has a clear record. He
O completed Form 6 and was studying horticultural design, O
year 3, at the Technological and Higher Education Institute.
D1 is single and prior to his arrest he was living with his
P parents. P
At the outset, Mr Christopher Grounds, counsel for D1,
Q Q
stressed the fact that D1 had been detained since 26 (March?)
of 2020. By the time of the sentence, D1 had been detained
R for 2 years and 9 months. R
On the basis that D1 is given a one-third discount and
S remission for good behaviour, 2 years and 9 months would mean S
a starting point of around 6 years. Since D1 gave evidence
in a murder trial, if D1 is given a 50 per cent discount as
T T
submitted, that would mean a starting point of over 8 years.
Mr Grounds stressed that both these calculations do not take
U into account D1’s youth and positive good character. U
CRT28/13.12.2022/JC 6 HCCC 86/2022(1)/Sentence
V V
A A
Mr Grounds provided this Court with more background
information in relation to D1. When D1 was still in school,
B his extracurricular activities included Taekwondo and B
archery. He excelled in archery. He developed an interest
to work as an arborist and was working for a degree in
C C
horticultural and landscape management at the Technological
and Higher Education Institute. He was studying year 3 at
D the time of arrest. D
D1 had a clear record prior to the present charges, he has
E completed training in first aid, mountain craft, rock E
climbing, mountain search and rescue activities. D1 was
dedicated and served in the community and helping others in
F F
need. D1 was a war gamer. He gave evidence in a murder trial
before me against his fellow war gaming participants. I will
G say more about this later on. G
D1 had been fascinated with military items since young. The
H military matters found under his bed were collectible items. H
Mr Grounds submitted that it was D1’s fascination with
I
military matters which may explain why D1 was in possession I
of so many spent and discharged ammunition.
J In respect of the 1st charge, Mr Grounds submitted there was J
no firearm involved. Of the ammunition, only one was a live
one, all others were spent, used or discharged. There is
K nothing to show how easy or difficult to reconstitute any of K
the discharged ammunition into live ones or whether that was
L even possible. Mr Grounds stressed that D1 maintained that L
the live ammunition was found along with many of the spent
ones at a shooting range in Hong Kong. D1 had no intention
M or desire to reconstitute any of the spent ones into live M
ammunition.
N Mr Grounds referred this Court to a number of authorities, N
including the case of HKSAR v Chan Chi Fun, R v Man Hung Pui
O and HKSAR v Wong Kin Wai. With reference to the factors O
mentioned in Chan Chi Fun, Mr Grounds submitted the following:
P (1) All but one of the ammunition was either spent or P
discharged.
Q Q
(2) D1 was not carrying the ammunition at the time.
R (3) D1 was a war gamer and he possessed the ammunition R
as a collector with no intention of using the
ammunition for any unlawful purposes.
S S
(4) While the ammunition was not under lock, they were
inside a messy hut in a remote area, the risk of
T T
these ammunition falling into the wrong hands is
not great.
U U
CRT28/13.12.2022/JC 7 HCCC 86/2022(1)/Sentence
V V
A (5) Even if they did fall into the wrong hands, say for A
the live one, the ammunition would have to be
reconstituted to make it usable.
B B
(6) D1 had a clear record.
C C
(7) D1 was of relative young age at the time of the
offence.
D D
(8) D1 rendered assistance to the authorities by giving
evidence in the murder trial for the prosecution.
E E
Mr Grounds submitted that the starting point should be
somewhere near the lower or lowest end of the range of 3 to
F F
6 years.
G As for the last item of rendering assistance to the authority, G
Mr Grounds relied on the Court of Final Appeal case of Z v
HKSAR which held that the policy of accepting assistance to
H authority as mitigation could relate to crimes that are H
unconnected with the one with which defendant is being
I
sentenced and submitted that such pre-arrest assistance I
should be taken into account.
J Alternatively, Mr Grounds submitted that acting as a witness J
for the prosecution in a murder trial together with his clear
record, the court can give D1 an appropriate deduction of
K sentence on his positive good character. K
L In relation to the 2nd charge, Mr Grounds stressed that D1 L
was charged with possession of explosive substances, not the
more serious charge such as making or keeping explosives with
M the intent to endanger life. Mr Grounds submitted that the M
explosive charge is of low level culpability. The Summary of
Facts indicate there might be difficulties in extracting some
N of the explosive or relevant substance. Any heat, ignition N
or explosion would have to be in the immediate proximity of
O a person rendering serious life-endangering injuries remote. O
Mr Grounds also submitted that many of the items found are
P sold in Hong Kong. If people were minded to make explosives, P
they could easily access sources to obtain welding powder,
toy-gun caps, firecrackers and so on. These people would not
Q Q
be in need of a chance finding of these seized materials.
R Mr Grounds referred to the case of HKSAR v Chan Yiu Shing and R
HKSAR v Li Chung Man, Alfred and submitted that an appropriate
starting point for the 2nd charge should fall within 2 to 3
S years. Mr Grounds further submitted that the possession of S
the explosive substances was committed in the course of a
single transaction with the 1st count so that both sentences
T T
should run concurrently.
U U
CRT28/13.12.2022/JC 8 HCCC 86/2022(1)/Sentence
V V
A Finally, Mr Grounds submitted that D1 had effectively served A
a total sentence of which the starting point would be slightly
above 6 years, that is with the one-third discount and good
B behaviour remission or slightly above 8 years, that is with B
the 50 per cent discount and good behaviour remission. Mr
Grounds urged this Court to impose a sentence which would
C C
result in the immediate release of D1.
D D1 wrote to this Court expressing his deep regret in having D
committed the present offences which affected not only his
family but also his friends and other people in the community.
E He claimed that during his incarceration, he did not waste E
time and took courses to enrich himself. He is still
interested to work as an arborist in the future and asked for
F F
leniency.
G D1’s parent’s, his aunt, his former class teacher, his former G
biology teacher, his training instructor of the Civil Aid
Service, a registered arborist in Hong Kong to whom D1 had
H worked as an assistant and a volunteer worker who had visited H
D1 after the latter was remanded and written to me.
I I
D1 was described as a well-behaved child, a filial son, an
honest and kind-hearted person who was willing to render
J assistance to others and are diligent worker. They all asked J
leniency on behalf of D1, believing that D1 committed the
offence due to ignorance. I was also provided with copies of
K D1’s school reports, transcript of studies and various K
certificates and awards in support.
L L
D2
M According to the antecedents statement, D2 was born in June M
1996 and is a single man with no previous criminal conviction.
He had completed Form 6 education and has worked as a part-
N time delivery worker since graduation. Prior to his arrest, N
D2 was living with his parents and an older brother. Mr
O Michael Arthur, counsel for D2, submitted that at the time of O
the offence D2 was a 24-year-old student with utmost good
character and strong family support. D2 took a training
P course to be a plumber and took an exam on 19 November this P
year. I was informed that D2 had passed the exam so he looks
forward to working as a plumber.
Q Q
Mr Arthur submitted D2 is a young man fascinated with guns,
R which leads to the present offence. Mr Arthur stressed that R
the short gun cartridge in Charge 3 was a spent one which was
given to him by someone during the war game.
S S
As for Charge 4, Mr Arthur referred to D2’s admission in his
letter to the Court that he had hidden the air gun in the
T T
flowerbed so as not to let his family know that he had such
an item and that D2 would bring it home to play with it when
U no one was around. As to why D2 did not tell the police the U
CRT28/13.12.2022/JC 9 HCCC 86/2022(1)/Sentence
V V
A whereabouts of that air gun, Mr Arthur after taking A
instructions submitted that D2 was panicking at the time and
could not recall where he had placed it.
B B
Mr Arthur accepted that the air gun could have fallen into
the hands of criminals but given D2’s good character, such a
C C
possibility was remote. Mr Arthur submitted that D2 did not
harbour any sinister motive in relation to this offence.
D D
As for Charge 5, Mr Arthur submitted that D2 bought the air
gun on the internet and gave it as a gift to his good friend,
E D3. D2 in his letter to the Court confessed that even though E
he had no unlawful intention when he gifted the air gun to
D3, he could have easily and accidentally put himself and
F F
others to harm.
G Regarding the appropriate sentence, Mr Arthur submitted that G
a starting point much less than 6 months would be appropriate
for Charge 3, citing the case of HKSAR v Yu Chun Lung. As
H for Charge 4, with reference to R v Leung Shiu Lun and HKSAR H
v Lam Fu Kin, Mr Arthur submitted a starting point no more
I
than 15 months would be appropriate. For Charge 5, Mr Arthur I
submitted that on the facts of the case a starting point no
more than 12 months should be imposed.
J J
Mr Arthur stressed the fact that D2 was in custody for
691 days before he was released on bail on 14 February 2022.
K D2 had in fact already served the best part of 2 years of K
imprisonment. Mr Arthur urged this Court not to return D2 to
L gaol for a further period of incarceration. L
D2 wrote to this Court expressing his deep regret and for
M having committed the present offences. D2 claimed to have M
interest in collecting air guns, treating them as artistic
items without any intention of harming anyone or damaging any
N properties. He stressed that he had learned a lesson and N
will think before he act in the future to ensure he will not
O commit any offence again. O
D2’s parents, his neighbour, his kung fu master and his
P classmates wrote to this Court, mitigating on D2’s behalf. P
The picture painted was that D2 was a filial son and a
kind-hearted person who would render assistance to those in
Q Q
need, even strangers. They all ask for leniency on behalf of
D2.
R R
I was also provided with copies of D2’s academic reports at
school and various certificates and commendation for his
S participation in different sporting events and doing S
voluntary work for the society.
T T
D3
U U
CRT28/13.12.2022/JC 10 HCCC 86/2022(1)/Sentence
V V
A According to the antecedent statement, D3 was born in January A
1997, so he is now 25 years of age. He is a single man with
no criminal conviction. He has completed a film studies
B course at the Hong Kong Metropolitan University in 2019 and B
had worked at the Ocean Park, earning $10,000 per month.
Prior to his arrest, D3 was living with his parents. D3 has
C C
an elder brother who is a teacher.
D Mr Chan Siu-ming, counsel for D3, provided more background D
information on D3. D3’s father is a chef and his mother is
a housewife. Having completed the film studies, D3 will
E obtain his degree after attending an additional English E
language course. D3 wishes to wait for the conclusion of
this case before he enrolled himself to attend the said
F F
course. D3 is now working in a café, earning $10,000 a month.
G Mr Chan referred to the factors to be considered for the G
possession of arm without a licence set out in the case of
Chan Chi Fun and submitted that the air gun in question is of
H a less serious nature when compared with a rifle or a pistol. H
D3 was not physically carrying the air rifle which Mr Chan
I
submitted was properly stored or kept inside D3’s wardrobe, I
therefore not accessible by other offenders.
J Mr Chan also referred to the case of R v Leung Shiu Lun, that J
is the possession of four air rifles and pistols and Secretary
for Justice v Leung Kwok Chi, that is the possession of large
K number of firearms and ammunitions for my consideration. K
L Mr Chan urged this Court to pass a sentence as lenient as L
possible, bearing in mind D3’s possession of the air rifle
was no more than his desire to have a collectible for fun.
M The minimal risk for the said rifle to be used for any illegal M
purpose, D3’s good character, good education, and D3’s
eagerness to make contribution by working in the society.
N N
D3 wrote to this Court expressing his deep regret for having
O committed the present offence due to his ignorance and O
curiosity. D3 claimed to have learned a lesson and promised
to be a law-abiding citizen in the future.
P P
D3’s former school teacher and general manager of the café D3
is currently working at have also written to this Court asking
Q Q
for leniency. D3 was mainly described as kind, well-behaved,
diligent and helpful young man who had committed the present
R offence due to his negligence or ignorance. R
Now, the following is my consideration for sentence.
S Possession of arms and ammunition without a licence is a S
serious offence. A person convicted of this offence on
indictment is liable to a fine of $100,000 and imprisonment
T T
for 14 years. Possession of explosive substances is also a
serious offence. A person convicted of this offence on
U indictment is liable to imprisonment also for 14 years. U
CRT28/13.12.2022/JC 11 HCCC 86/2022(1)/Sentence
V V
A A
I am grateful to all defence counsel for bringing my attention
to various judgments concerning arms and ammunition. I should
B add the prosecution as well because it is in the bundle and B
also to Mr Grounds for those involving explosive substances.
C C
In the case of Chan Chi Fun, the Court of Appeal stated -- I
have just taken the rest from the headnote:
D D
“As a rule, this type of offence would attract a severe
and deterrent sentence, for the reason that firearms and
E ammunition posed a potentially grave danger to the E
society. In determining the appropriate sentence, the
mitigating or aggravating factors included:
F F
(a) the type of firearm and ammunition involved;
G G
(b) whether the defendant physically carried the
firearm and ammunition;
H H
(c) whether the firearm was loaded;
I I
(d) whether the firearm had been used;
J (e) whether the defendant intended to use the J
firearm for illegal purposes;
K (f) whether the firearm and ammunition was K
properly stored or easily accessible by
L offenders, and L
(g) whether the defendant had a clear record.
M M
The level of sentence depended on the court’s view of
the potential risk posed by the firearm and ammunition
N in question, taking into account the circumstances of N
the offence and the defendant’s background.”
O O
These relevant factors were adopted in the case of Secretary
for Justice v Yan Shen and the Court of Appeal in that case
P stated that: P
“...societal protection is the paramount consideration
Q Q
in order to maintain the safety of Hong Kong and
immediate custodial sentence, often for a substantial
R term, should be imposed except in truly exceptional R
circumstances.”
S The Court of Appeal in the case of Secretary for Justice v S
Leung Kwok Chi also referred to the above two cases and
adopted the same.
T T
First of all, I accept that the possession of ammunition is
U usually less serious than the possession of arms (see the U
CRT28/13.12.2022/JC 12 HCCC 86/2022(1)/Sentence
V V
A case of Man Hung Pui). I also accept that the possession of A
an air gun or air rifle is less serious than the possession
of unlicensed firearms such as revolvers and pistols (see the
B case of Leung Shiu Lun). B
In the case of Man Hung Pui, it was a 17-year-old appellant
C C
with previous convictions for robbery, theft and possession
of offensive weapon and he was found in possession of six
D rounds of live 7.62 millimetre calibre ammunition. The trial D
judge adopted a starting point of “at least 7 years” and the
Court of Appeal ruled that the appropriate starting point was
E 4 years. So I take that as an example. E
Now, first of all, D1, 1st charge. In the present case, D1
F F
was in possession of one live ammunition and a large number,
I count there was 1,027 of spent or discharged ammunition.
G So having considered the circumstances of the case, I accept G
the submission made by Mr Grounds on behalf of D1 in relation
to the factors identified in Chan Chi Fun. I accept that D1
H was a person of relative young age at the time of the offence H
and of positively good character. I am of the view that a
I
starting point of 3½ years is appropriate for the 1st charge. I
With a one-third discount for plea tendered at the earliest
available opportunity, the sentence would be 28 months, so 2
J years and 4 months. J
And it is true that D1 gave evidence as a prosecution witness
K in the murder trial before me. However, I do not accept that K
such a course of action would entitle D1 to be treated on the
L same footing as an informer who had rendered assistance to L
the authority prior to committing the offence for which he
was to be sentenced. I agree that all the background
M information as well as D1’s act of giving evidence before me M
entitle him to a slight further discount. I will give him a
further 2 months discount to reflect that. So the resulting
N sentence is 2 years 2 months. N
O 2nd charge O
For the 2nd charge, the amount of explosive substances cannot
P be said to be small. Eight firecrackers, 23 packs of toy gun P
caps, five packets of ball-type toy gun caps, 46 party
poppers, one plastic bottle containing nitrocellulose and
Q Q
zirconium, 27 large packets of commercial welding powder and
41 small packets of commercial welding powder.
R R
Taking on board what Mr Grounds has submitted on D1’s behalf,
I am of the view that a starting point of 3½ years’
S imprisonment is also appropriate for this offence. With a S
one-third discount, the sentence would be 28 months and I
will again give D1 an extra deduction of 2 months. So the
T T
sentence is therefore 2 years and 2 months.
U The Question of Totality U
CRT28/13.12.2022/JC 13 HCCC 86/2022(1)/Sentence
V V
A A
While the offending items were found inside the hut on the
same day, as the nature of the explosive substances is very
B different from ammunition, I do not accept that both sentences B
should run totally concurrently. Having considered the
totality principle, I am of the view that a total sentence of
C C
3 years would properly reflect the criminality involved.
D D1 had been in custody for just over 2 years and 9 months. D
With a sentence of 3 years, D1 would have to serve another
3 months or so in prison. If D1 had been sent to gaol he
E would have a further discount of one-third if he had been of E
good behaviour. Although it is very difficult for me to gauge
because D1 was not in gaol, he was in the remand centre. So
F F
having considered all the circumstances, I am satisfied that
this is proper for me to exercise my discretion to further
G reduce the sentence to one of 2 years and 8 months so that D1 G
can be immediately released.
H So for the 1st charge, D1 is sentenced to 2 years and 2 H
months’ imprisonment. 2nd charge, D1 is also sentenced to
I
2 years and 2 months’ imprisonment. 6 months of the 2nd I
charge is to run consecutively to the 2 years and 2 months
imposed on the 1st charge, making a total of 2 years and
J 8 months. J
D2, 3rd charge
K K
In the present case, the single shotgun cartridge possessed
L by D2, a person of clear record and positively good character L
was spent, so it did not pose any harm to the society. I
accept that D2 received it as a decorative gift and there is
M no evidence that he possessed it for any illegal purpose. I M
am of the view that a starting point of 6 months is appropriate
for Charge 3.
N N
Charge 4 and 5th charge
O O
In respect of Charge 4, the air gun in question was a spring-
powered one capable of discharging .22 calibre pellets with
P muzzle energy of 15.75 joules. It was put inside a bag and P
placed on the flowerbed of a residential complex. Needless
to say, there was a risk that the air gun might have fallen
Q Q
into the hands of criminals and put to illegal use.
R I would add here that even though D2 admitted to the police R
that he possessed the air gun, when the police failed to
locate any inside D2’s home, D2 did not own up that the gun
S was actually hidden in the flowerbed. When D2 was cautioned S
by the police and after the air gun was found, he remained
silent. Now I am not suggesting for one moment that D2 was
T T
obliged to answer when questioned about the air gun under
caution. However, his silence under caution does appear to
U U
CRT28/13.12.2022/JC 14 HCCC 86/2022(1)/Sentence
V V
A run contrary to his early admission to the police that there A
was a gun at his home when the police did not find any.
B Now I was given to understand that D2 was in a panic at the B
time and could not recall where he had placed the gun. In
any event, I do bear in mind the fact that D2 pleaded guilty
C C
at the earliest available opportunity and is therefore
entitled to full discount even though he made no admission
D when cautioned after the gun was found. D
Although the mechanism was spring powered, I cannot ignore
E the fact that the muzzle energy was at 15.75 joules. Now, I E
accept that D2 was a gun enthusiast and he did not have any
illegal intention in possessing the gun. Having considered
F F
all the circumstances, in particular the fact that the air
gun was left in the open, at a place easily found by others
G and the muzzle energy of 15.75 was more than seven times the G
statutory limit of 2 joules, I am of the view that a starting
point of 18 months is appropriate.
H H
I take a more serious view of Charge 5, the 5th charge. The
I
air gun involved was a spring powered one, but the muzzle I
energy was 34.10 joules, 17 times more than the statutory
limit of 2 joules which was modified by D2. Now, according
J to D2, he passed the air gun to D3 as a gift. D3 however J
said in the video-recorded interview that he had paid D2
$4,000 to modify the air gun. So it is not a gift.
K K
Now, in any event it was clarified later that the gun was
L indeed given by D2 to D3 as a gift and what D2 said in the L
video-recorded interview was incorrect and that he was at the
time too frightened and said something wrong.
M M
Anyways, the maximum sentence for this offence is 5 years’
imprisonment upon conviction on indictment. The
N circumstances of this case warrant a starting point of 2 years N
in my view.
O O
Now, D2 pleaded guilty to all three charges at the earliest
available opportunity and is entitled to a full one-third
P discount. So with the discount the sentence for the three P
charges are respectively 4 months as for the 3rd charge,
12 months as for the 4th charge, and 16 months for the
Q Q
5th charge.
R Having considered the totality principle, I am of the view R
that an overall sentence of 2 years will properly reflect
D2’s criminality.
S S
D2 had been in custody for 691 days so just 39 days short of
2 years. With good behaviour, D2 would have been given
T T
another one-third discount for the 2 year sentence, though as
in the case of D1, it is rather difficult to gauge at this
U U
CRT28/13.12.2022/JC 15 HCCC 86/2022(1)/Sentence
V V
A point because D2 was remanded at the Lai Chi Kok Reception A
Centre, not actually in gaol.
B I do not think any useful purpose would be served by sending B
D2 back to gaol to serve just a month or so of the sentence,
particularly in view of the positively good character he
C C
possessed prior to the commission of the present offence and
the fact that he is now qualified to work as a plumber. To
D ensure that does not happen, I would adjust the sentence to D
one of 22 months so that D2 will be immediately released.
E So the sentence is as follows. Charge 3, 4 months; Charge 4, E
12 months, concurrent with Charge 3; Charge 5, 16 months, 10
months of which to run consecutively to Charge 4 but
F F
concurrent with Charge 3 so making a total of 22 months.
G D3, the 6th charge G
I also accept that D3 did not have any illegal purpose for
H possessing the air gun. I cannot however ignore the fact H
that the air gun was modified to a rather powerful muzzle
I
energy at 34.10 joules. While the air gun was kept inside I
D3’s wardrobe, I do not agree that it was properly stored.
It was not under lock and a burglar could have gained access
J to it. Having considered all the circumstances and bearing J
in mind the defendant’s good character, I am of the view that
a starting point of 2 years is appropriate.
K K
D3 pleaded guilty at the earliest available opportunity and
L is entitled to the full one-third discount. With the discount L
the sentence is one of 16 months.
M D3 was in custody since 26 March 2020 and was released on M
bail on 14 February 2022 so he was in custody for a period of
691 days which is longer than the 16 months imposed. But of
N course he was kept in the remand centre instead of a gaol. N
So for Charge 6 or 6th charge, D3 is sentenced to 16 months’
O imprisonment. O
P P
Q Q
R R
S S
T T
U U
CRT28/13.12.2022/JC 16 HCCC 86/2022(1)/Sentence
V V