HKSAR v. Fung Fuk Cheung

DCCC 348/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 348 OF 2016

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REASONS FOR SENTENCE

1.Fung Fuk Cheung you have pleaded guilty to one charge of theft, contrary to section 9 of the Theft Ordinance,[1] and one charge of possession of ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance[2].

2.Full particulars of the offences are set out in the facts admitted by you today.  In summary at around 9:35 a.m. on 21 January this year whilst in the Wellcome Supermarket on Shanghai Street in Mongkok you consumed a bottle of beans valued at $12.90. 

3.When trying to leave the supermarket the manager of the supermarket stopped you and called the police.  Under caution you told the police you did not have any money to pay for the beans. 

4.The police then conducted a search and found in your bag five rounds of live ammunition in .22” LR calibre which were suitable for discharge by firearms such as Ruger 10/22 rifles.

Mitigation

5.In passing sentence I have carefully considered everything said on your behalf by Mr Ng as particularised in his written submission and most helpfully in court today.   

Shoplifting

6.Mr Ng says you were hungry at the time and without money therefore you consumed the beans.  Relying on HKSAR v Tse Wing Kit [3] Mr Ng submits the proper starting point is 3 months imprisonment.  The appellant in that case, who had six previous convictions, soon after being released from prison, stole a packet of cigarettes worth $50.  On appeal the court held that the starting point after trial should not exceed 3 months. 

7.You are clearly a persistent offender having appeared in court no less than thirty two times amassing a total of forty five convictions, fifteen of which are for theft, with eleven for shoplifting.  You were last convicted of two offences of shoplifting in October last year when you received consecutive sentences of 3 months and 1 week imprisonment.

8.You were released from that sentence on the 16 January this year and five days later committed the present offences. 

9.Although you have more convictions than the appellant in Tse Wing Kit , taking into account the value of the beans is only $12.90 I will also take a starting point of three months imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 months imprisonment.  

Possession of ammunition without a licence

10.There is no tariff for these offences, sentence very much depending on the circumstances of the individual case.  The courts have however repeated that deterrent sentences are required.  In HKSAR v Chan Chi Fun[4]the Court of Appealheld that as a rule this type of offence would attract a severe and deterrent sentence by reason of the fact that firearms and ammunition posed a potentially grave danger to the society.  

11.In Secretary for Justice v Leung Kwok Chi the Court of Appeal recognising that there are varying degrees of culpability said that only by adopting a stringent approach to the unlicensed possession of arms and ammunition the court can ensure that Hong Kong continues to be a safe city[5].  Similarly in Secretary for Justice v Yan Shen the Court of Appeal said one of the reasons Hong Kong is a safe city is the strict gun control laws[6].

12.Factors to consider in determining the appropriate sentence include the type of firearm and ammunition involved; whether the firearm and ammunition was carried by the defendant; and whether the defendant intended to use the firearm and ammunition for illegal purposes.

13.You were only in possession of ammunition.  I am told that you picked up the ammunition earlier that morning[7]. I have my reservation that you simply picked up live ammunition in a rear lane nevertheless I proceed on that basis there being no other evidence before the court.

14.In R v Man Hung Pui[8]the Court of Appeal held that possession of ammunition is usually less serious than possession of a firearm.  The court held that a starting point of 4 years imprisonment was appropriate for possession of six rounds of live 7.62mm calibre ammunition seized from the appellant’s residence. 

15.I accept Mr Ng’s submission that possession of five rounds of live .22” LR calibre ammunition is not as serious the ammunition being less powerful than 7.62 mm calibre ammunition. 

16.Taking into account that there is no evidence you intended to use the ammunition for unlawful purpose, I am satisfied the proper starting point after trial is 3 years imprisonment.  Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years imprisonment.  

Totality

17.Both offences are separate and distinct for which consecutive sentences are appropriate. I order both sentences to be served consecutively making a total sentence to be served by you of 2 years and 2 months imprisonment which I am satisfied properly reflects your criminal culpability on the charges.

[1] Cap 210.

[2] Cap 238.

[3] [2015] 4 HKLRD 466.

[4] [2006] 1 HKLRD 128.

[5] CAAR 6/2012 (unreported) at §§44 & 45.

[6] [2012] 3 HKLRD 652 at §38

[7] §10 of Mr Ng’s written submission.

[8] CACC 222/1992.