HKSAR v. Lee Chun Wing

DCCC 810/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 810 OF 2015

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REASONS FOR SENTENCE

The defendant pleaded guilty to a charge of "Possession of arms without a licence". The subject matter is a stun gun.

Summary of Facts

2.About 10:50 am on 22 April 2014, police officers entered the defendant's residence situated at the address particularized in the Charge.  A search warrant was executed.

3.A stunning device of 15 cm in length ("E1") was found on a small cabinet.  E1 was in the shape of a torch.  The word "Police" on its body could be seen clearly. The charger of E1 was found in the defendant's bag.

4.In his cautioned interview, the defendant admitted that he knew E1 was a stun gun which could be used to cause electric shock to people, but he used it as a torch only.  E1 was given to him by a friend named "Ah Keung".  He did not know Ah Keung's full name and had no means to contact him.

5.The Police tested the stun gun and confirmed that it could function properly and could be classified as a stunning device.  Its peak-to-peak pulsating voltage is 51,884 volts.

6.The defendant does not hold a licence for possession of E1.

Mitigation & Sentence

7.The defendant is almost 44. He has 4 conviction records, but according to the sentencing dates, it appears that at the time of the present offence, he had only 1 conviction record (which was a "simple possession" offence).  Defence counsel Mr. FU informed that the defendant is separated, and sometimes resides with his parents.  He was a construction worker earning about $20,000 per month.  A letter written by the defendant was placed before me; its contents are duly noted.

8.In mitigation, Mr. FU submitted that the defendant used E1 as a torch only.  Mr. FU invited me to look at E1 as well as its photographs taken from different angles.  He pointed out that the part which emits electric shock from E1 is not readily visible. He suspects that unlike most stun guns, one needs to unscrew the light bulb of E1 before it could be used as a stunning device.  Mr. FU further submitted that the defendant did not bring E1 outside his home.

9.Paragraph 6 of the Summary of Facts contains the expert opinion of a medical practitioner on the effects of stunning devices when they are used on human bodies.  Those are remarks of a general nature, which are not helpful to the court in the sentencing process.  I have asked prosecuting counsel Ms. YEUNG if the expert had commented specifically on E1 regarding what harm it is capable of causing to humans. Regrettably, the expert did not.  Such an oversight should have been rectified by the advising counsel (if not, the prosecuting counsel).  For the purpose of sentencing, I shall give the benefit of doubt to the defendant and treat E1 as a non-lethal stunning device.

10.Possession of arms without a licence in Hong Kong is a serious matter.  A clear message must be conveyed to the general public that Hong Kong courts do not treat this type of offences lightly irrespective of the purpose of possessing arms.  An immediate custodial sentence is inevitable even for fresh offenders.

11.I have considered a number of Court of Appeal's decisions on the sentencing of stun gun offences[1].  I have paid particular attention to the voltages of as well as the purposes of possessing the stun guns in those cases.  Based on the materials before me, I accept that E1 looks like an ordinary torch and it has a torch function.  I also accept there is no evidence to suggest that the defendant had any intention to use E1 for illegal purposes in Hong Kong.  I, however, cannot overlook the relatively high voltage of E1.  It is nevertheless an operational stunning device irrespective of its perhaps dominating torch function.

12.Bearing all relevant factors in mind, I adopt a starting point of 15 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 10 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  I sentence the defendant to 10 months' imprisonment.