HKSAR v. Kow Chi Ming also known as Koo Chi Ming

DCCC 453/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 453 OF 2015

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Reasons for Sentence

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1.In these proceedings, the defendant Kow Chi-ming (aka Koo Chi-ming) is charged with, pleaded guilty to one count of “Possession of arms without a licence”, contrary to Section 13 of the Firearms and Ammunition Ordinance, Cap 238.

2.He is convicted on his own plea and admission of facts.

Facts

3.Some time after 2 pm on 2 February 2015, the defendant was intercepted by police officers in Shek Kip Mei.  Upon search, a stun gun (24 cm long and 3 cm in diameter) was found in the shoulder bag he was carrying.  It can also be used as a torch.

4.Under caution, the defendant admitted that it was indeed a stun gun.  He had tried to switch it on before.  It was given to him earlier by a friend for self-defence.

5.The Electronic System Support Section of the Hong Kong Police Force testifies that the device is a stun gun and that it is capable of generating electric arc from the electrodes on the head.  The peak-to-peak pulsating voltage generated is 175,042 volts.  It is capable of generating 2,308 high voltage pulses continuously for 3 seconds.

6.A senior forensic pathologist from the Health Department also confirms that a stun gun causes immediate localised effect, followed by incapacitating effect on the whole body. In particular, a discharge of up to 0.5 seconds startles and repels the victim; for a discharge of 1 to 2 seconds the victim loses his ability to stand up; for 3 to 5 seconds the victim is immobilised, incapacitated, dazed and weak for at least 5 to 15 minutes.

7.In addition, the contact with the electrodes of a stun gun can result in superficial burns and causes generalised loss of skeletal muscle function. The fall inevitably results in impact injuries.

8.In other words, the device in question is a powerful and dangerous weapon capable of causing serious injuries to its victim.

Discussions

9.Possession of arms without a licence is a very serious offence that can be seen from the maximum sentence of a fine of $100,000 and 14 years’ imprisonment.

10.My attention has been drawn to the judgment of Hon Poon J. in HKSAR v Mohamed P Shafik[1], where, in paragraph 29 to 35, the Court of Appeal reviews the authorities and summarises the position thus:

(1)As deterrence, an immediate custodial sentence is required;

(2)There is no tariff for the offence. The starting point to be adopted has to be considered in the light of the facts of the case;

(3)The followings are some of the relevant considerations: the voltage power of the stun gun in question; evidence, if any, of the stun gun having been used or may have been used by the offender or some other people for unlawful purpose or to facilitate an unlawful activity;

(4)In addition, if there is a real risk that the stun gun will fall into the hands of someone who would use it for unlawful purpose, it is a factor which will result in a higher starting point.

11.In the Mohamed P Shafik case, the defendant worked as a bouncer.  He was in possession of a stun gun capable of discharging voltage of 145,325 volts, although there was no evidence that higher voltage would cause greater harm to the human body.  The Court of Appeal held that there was a real risk of his using the stun gun, but held that the circumstances warrant a starting point of 24 months.

Cases of similar magnitude

12.The following cases, also referred to in the Mohamed P Shafik judgment, are relevant in that they offer the perspective as to the proper starting point to be adopted.

HKSAR v Li Hung Kwan[2]

the stun gun in question could also be used as a torch, generated 35,000 volts when operated in the air and 12,000 volts if applied to human body.

The Court of Appeal considered that the voltage power of the stun gun was in the middle/lower range. There was no evidence to suggest that the defendant intended to use it for an illegal purpose and the starting point should be 20 months’ imprisonment.

HKSAR v Fan Kwok Wai[3]

The defendant, a drug addict with triad background, was found to be in possession of a quantity of dangerous drugs, three stun guns and two extendable batons at his home. The stun guns were capable of producing discharges of 20,403 volts, 10,000 volts and 13,623 volts respectively. They were considered to be of medium range.

The trial judge took the view that there was a real risk of the stun guns and batons falling into the wrong hands and adopted a starting point of 4 months for the stun gun charge.

The Court of Appeal noted that there being no evidence of any immediate intent to use the weapons, the appropriate starting point is 3 years.

13.In the present case, the stun gun was capable of discharging 175,042 volts.  Its power is of medium range.  The defendant was carrying the stun gun in his shoulder bag.  He admitted that it was for self-defence.  He had even tried to turn it on before.  There was a real chance that he could use it to incapacitate his enemies.

14.Having considered the facts of this case and the cases referred to above, I find the proper starting point should be 21 months.

Mitigation

15.The defendant could not lay any claim for leniency on

account of his youth or absence of previous convictions. He is 46 years old and has been convicted of a total of 20 charges on 16 occasions. I have been told that he worked as a photographer before his arrest, but had been unemployed since.

16.There is really nothing in the mitigation submission by his counsel which justifies exceptional leniency.

17.The only valid mitigation is his plea of guilty.

18.I would therefore reduce the sentence order from 21 months to 14 months.

[1] CACC 224/2014 (5 March 2015)

[2] [2003] 1 HKLRD, CACC 250/2002 (18 December 2002)

[3] CACC 264/2005 (unreported) (10 October 2005)