the following three charges and was committed to the Court of
First Instance for sentence. The three charges are Charge 1,
possession of ammunition without licence; Charge 2, possession of
arms and ammunition without licence; and Charge 3, attempted
possession of arms and ammunition without licence.
In sentencing, I have taken into account the whole circumstances of the case, including its nature and facts, background of the defendant and mitigation put forward on his behalf.
The facts of the case may be summarised as follows.
In a parcel sent from the United States to the defendant, the subject matter of Charge 1 were found. They were: 137 rounds of live ammunition of 0.45 auto calibre suitable for discharge in light calibre pistols. It led to the arrest of the defendant.
Under caution, the defendant said he bought the ammunition online and he knew the items were genuine ammunition and could be discharged from genuine arms but he was not in possession of genuine arms.
A search was later conducted at the defendant’s home. Among other things, the following arms and ammunition were found:
(1) two pistols of 0.22 calibre and 0.45 calibre respectively;
(2) three rifles, two of 0.22 calibre and one of 0.55 calibre;
(3) a sound suppressor which was compatible for use in one of the pistols and one of the rifles found;
(4) 16 airguns of different calibre ranging 0.22 to 0.50 and with muzzle energy ranging from 28.67 joules to 384.28 joules.
(5) one barrel and trigger assembly of Remington rifle;
(6) firearm component parts consisting of a barrel, through which a bullet or a missile travels and trigger being pulled manually to cause the firearm to discharge;
(7) three barrels of Ruger model rifle which are firearm component parts through which a bullet or a missile travels;
(8) 8,943 rounds of ammunition which were fit for use in some of the arms found.
Also found were 30 spent cartridges and a metal box with multiple layers of plastic tiles being installed at the bottom where bullet heads were stuck between layers.
Under caution, the defendant admitted that he bought genuine arms and ammunition for collection and fun. He had only fired the guns at vibration proof plastic tiles at home on a few occasions to test their power and he had never brought them outside home.
Several days later four more parcels containing the subject matter of Charge 3 sent from the United States to the defendant were withheld by the Post Office. There were one pistol of 0.22 calibre component parts of two pistols and 501 rounds of 9 x 19 millimetres live ammunition.
The defendant is a person with clear record. He is 40 years of age. He has received form five education and had worked at various fast-food restaurants. He worked his way up from a waiter to become a manager. He is single and was living with his parents.
Learned counsel for the defence, Mr Donald, urged me to take into account the good background of the defendant, his guilty pleas at the earliest opportunity and his genuine remorse. He also stressed that there was no illegal intent on the part of the defendant in keeping these items. It was a hobby of the defendant to collect arms and ammunition. When he was young, he started collecting different models of airguns. Gradually he developed a hobby of collecting real guns. The items now found were purchased on the internet from the States.
The family is supportive of the defendant. The parents are in court and presented through counsel a mitigation letter. The defendant had a plan of marriage in 2015, but the arrangement had to be cancelled because of this case. His fiancée wrote a letter stating her continuous support to the defendant. Senior staff and many colleagues of the restaurant the defendant worked in wrote letters in which good comments were made of him, in particular that he was a responsible, reliable and hardworking staff and a good colleague. They pleaded leniency on his behalf.
The defendant was in possession of a substantial quantity of arms and ammunition.
In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the Court of Appeal remarked that this type of offence would attract a severe and deterrent sentence for the reason that firearms and ammunition posed a potential grave danger to society. It was held that the following factors are relevant in consideration of a sentence:
(1) the type of firearm and ammunition involved;
(2) whether the defendant physically carried the firearm and ammunition;
(3) whether the firearm was loaded;
(4) whether the firearm had been used;
(5) whether the defendant intended to use the firearm for illegal purpose;
(6) whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders; and
(7) whether the defendant had a clear record.
It was further remarked that the level of sentence to be imposed depends on the court’s view of the potential risk posed by the firearm and ammunition in question, taking into account the circumstances of the case and the defendant’s background.
In a latter case, SJ v Yan Shen [2012] 3 HKLRD 652, citing what Woolf CJ observed in R v Rehman [2006] 1 Cr App R (S) 77, Stock VP said:
“In a case of unlicensed possession of firearms, societal protection is paramount consideration. It is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration. It is a category of offence which in general requires a deterrent sentence by which is meant ‘sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider.”
The above were endorsed in SJ v Leung Kwok Chi CAAR 6/2012. The Court of Appeal said:
“If the arms and ammunition had been used or intended to be used for any crime, the starting point would be 11 years and above. Even if the arms and ammunition had not been used and were not intended to be used by the offender for any crime, the offence can still attract a starting point as high as 6 years, depending on the nature of the arms and ammunition and the circumstances in which the offence was committed.”
It was recognised that if the possession was as a hobby and there were no risks of the arms and ammunition being used for any illegal purpose or posing any threat of the public, the case is at the lower end of the sentencing scale.
In R v Man Hung Pui [1993] 2 HKC 174, the Court of Appeal held that possession of ammunition is usually less serious than possession of firearm. However, the court also said that possession of both an unloaded firearm and ammunition would call for a more severe sentence than that for possession of an unloaded firearm alone.
A substantial quantity of the ammunition in the defendant’s possession was fit for use in some of the arms found.
In HKSAR v Hu Quanwu [2011] 4 HKC 331, Yeung JA (as he then was) observed that the maximum sentence of the offence is 14 years’ imprisonment and a sentence of that level is suitable for cases involving a large number of powerful arms and ammunitions, or when those arms and ammunitions have been fired or used in crimes or when a defendant had a very bad criminal record.
Apart from the five real guns, quite a number of arms possessed by the defendant were airguns.
In R v Leung Shiu Lun CACC 609/1996, the arms concerned included two air rifles and two air pistols. The muzzle energy of these arms ranged from 2.30 joules to 12.84 joules. The Court of Appeal noted that at that time there was there was no tariff for possession of air rifles and accepted that the sentencing judge was right in drawing a distinction between the usual sentences for possession of firearms as opposed to air rifles which he placed much lower down in the range of sentences he considered applicable. The Court also noted the definition of arms embraces not only firearms in the ordinary sense but the wide range of other items including airguns with muzzle energy exceeding 2 joules. Nazareth VP said varying sentences are called for, taking into consideration the varying harmful effect of the arms in question. His Lordship also remarked that inclusion of airguns with muzzle energy above the statuary level tends to suggest that the mischief aimed at is the danger to life and limb. The court described the situation as unclear and confused and in that case adopted a starting point for 15 months.
I have had regard to the observation of the Court of Appeal in this case, and at the same time noted that some airguns found in the present case were very powerful with muzzle energy much higher than the statuary threshold.
The respondent in Leung Kwok Chi was a gun enthusiast who otherwise had no unlawful intent and was a person of previous good character. Amongst the arms in his possession were one Thomson contender firearm, two revolvers, three airguns and a flare pistol. He was in possession of more than 3,800 rounds of ammunition of various calibre. Upon an application for review, the Court of Appeal imposed a sentence of 30 months’ imprisonment for which the guilty plea, a 10 month reduction for mitigating factors available, and the fact that it was a review application had been taken into account. The court has also taken into account that the respondent was licenced to possess arms and therefore was regarded to be in a better position to properly keep the items, and it was only a case of possession of arms and ammunition possessed in excess of the permission of the licence.
In R v Milhench [1996] 1 HKC 628, the appellant was in possession of a 0.22 revolver and 34 rounds of live ammunition. He had a previous record in England in relation to firearms. He was described as a man who fantasised living a James Bond lifestyle. The revolver was described as a ladies gun, a defensive weapon. It was loaded. The appellant was sentenced on the basis that possession of a gun and ammunition were part of his fantasies. His appeal against the sentence of 4½ years’ imprisonment which was imposed upon his guilty plea was dismissed. The sentencing judge said that but for the plea of guilty, he would have started from a point of 12 years. The Court of Appeal said they did not disagree with that.
The defendant in the present case is a person with a prior clear record. Mr Donald highlighted the lack of evidence in the following matters:
(1) The defendant had physically carried the arms and ammunition from his home to a public place.
(2) Any of the arms were loaded when found.
(3) That the defendant intended to use any of the arms and ammunition for any illegal purpose.
These I accept.
The quantity of firearms and ammunition found was substantial. They were in working order and could be readily used. They were not properly stored. They were kept in unlocked boxes placed on open shelves on or near the defendant’s bed. The place in which the defendant lived was a privately-own flat and there is no indication that strong security measures were put in place.
Whilst Mr Donald stressed the lack of evidence that the defendant had physically carried the arms and ammunition from his home to a public place, the subject matter of Charge 1 were, and that of Charge 3 were to be, sent to the work place of the defendant. If the items were to be kept there, there is nothing to contradict my view that keeping arms and ammunitions there will create a high degree of risk which the court is concerned with. The likelihood is that the defendant would have bought the items home and for this he would have to carry the item from Mong Kok to his home which is at Wong Tai Sin.
As a matter of fact, the case was discovered when two bullets dropped out from the parcel. Whilst it was not the fault of the defendant, the risk involved in the transaction is evidenced.
Obviously Mr Donald was careful in choosing his words during mitigation in relation to the matters for which he said there was a lack of evidence. He did not seek to challenge or dilute the facts which the defendant admitted regarding the WhatsApp records retrieved from the latter’s mobile phone.
The records show that there was continuous conversation between the defendant and four other people for more than three months about the defendant selling of arms and ammunition to these people. The records also show that these people expressed their intent to sell the item to others. The state of evidence does not allow me to draw the conclusive inference that the defendant had in fact dissipated arms and ammunition. Nevertheless, the information shows that the defendant did not have the intent and will to keep the arms and ammunition to himself.
In my judgment, the risk that these items may fall into the wrong hands or become unlawfully used was very high. The fire hazard caused cannot be ignored. A stringent approach in sentence should be adopted to ensure that Hong Kong continues to be a safe city.
In all the circumstances, having regard to authorities, I am of the view that the following starting points are appropriate.
Charge 1, 3 years; Charge 2, 9½ years; Charge 3, 6 years. The defendant is entitled to a one-third discount for his guilty pleas and previous clear record. Having regard to the whole circumstances, bearing in mind the mitigation put forward by learned defence counsel, in my judgment this is the extent of discount the defendant is entitled to.
For these reasons, I impose the following sentence on you. Charge 1, 2 years imprisonment; Charge 2, 6 years and 4 months’ imprisonment; Charge 3, 4 years’ imprisonment. Having regard to totality, I order all the sentences to run concurrently. So you are to serve a total sentence of 6 years and 4 months’ imprisonment for all the three charges.