HKSAR v. Bar Rotem (also known as Bar Rotem Dany)

DCCC 995/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 995 OF 2015

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REASONS FOR SENTENCE

1.Bar Rotem you are an Israeli national who has resided in Hong Kong since 2007. You have pleaded guilty to four charges of dealing in arms without a licence and one charge of possession of arms without a licence, contrary to sections 13 & 14 of the Firearms and Ammunition Ordinance[1].

2.The arms in question are 130 stunning devices, all of the same design.  Photographs of the devices are attached to the evaluation reports submitted to court[2].  I have inspected one of the devices in court.

3.Full particulars of the offences are set out in the facts admitted by you on 23 May 2016.  In summary during October 2014 you took parcels containing a total of 19 stunning devices to the Tin Yuet Post Office for posting to Israel by registered mail.  Mr Turnbull has further explained in court today the details as to the seizing of the 19 stunning devices.

4.On 27 October the police were alerted after X-ray screening of one of the parcels by Customs & Excise at the Air Mail Centre in the airport revealed 11 stunning devices. 

5.The following day the police executed a search warrant at your home and found two invoices[3] on your computer.  The first invoice dated 12 September 2014 showed the purchase of 30 stunning devices from a company in China.  The second invoice dated 23 October 2014 showed the purchase of a further 100 stunning devices from the same company in China.

6.The police seized 11 stunning devices found inside your home. In addition to the 11 stunning devices discovered on 27 October the other 8 stunning devices you took to the Tin Yuet Post Office were seized by the police at the Air Mail Centre on 28 and 29 October (charges 1-4).

7.On 5 November 2014 the police seized from the Post Office a parcel containing 100 stunning devices which had been sent to you from China (charge 5).

Mitigation

8.In passing sentence I have carefully considered everything said on your behalf by Mr Shah together with the letters from your wife, who you married in December last year, and from your father and the Chief Rabbi of your Chabad[4].  I take into account that you have a clear record. 

9.In mitigation Mr Shah repeats that, which you told the police, in particular, that you ran a trading company from your home; that you purchased the stunning devices from a company in China for sale to customers in Israel[5]; the sale of stunning devices was legal in Israel; that you had no intention of selling the stunning devices in Hong Kong and that you did not know the sale of stun guns was illegal in Hong Kong. 

10.In support that the stunning devices are legal in Israel Mr Shah submits a legal opinion from Nir Yadid Law Offices in Haifa, Israel[6].  The prosecution do not challenge the opinion that the possession of stunning devices is legal in Israel.  

11.Mr Shah emphasises that your dealings in stunning devices were purely commercial transactions with no intention that the stunning devices be sold or used in Hong Kong and that Hong Kong was only used as a port of transit. 

12.Mr Shah submits your criminality is therefore not the same as the usual offender who is caught in Hong Kong in possession of a stun gun or bringing a stun gun into Hong Kong.  Mr Shah submits the circumstances of your offending are exceptional and that you can properly be sentenced by way of a heavy financial penalty as opposed to an immediate prison sentence[7].

Discussion

13.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[8]. 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[9].  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[10].

14.In Secretary for Justice v Yan Shen the Court accepted that whilst unlicensed possession of a firearm will normally result in an immediate custodial term, often a substantial term, there will be truly exceptional cases where the imposition of a non-custodial term may be justified; although the sentencing tribunal will be expected to furnish a sensible and clear explanation for taking that exceptional course[11].

15.One such case often cited is R v Hirai Hirotsugu[12] where weapons from the Second World War were properly stored and posed no risk or threat to the public.

16.Both these cases involved firearms and not stun guns.  In HKSAR v Mohamed P Shafik[13] the Court of Appeal derived from previous judgments of the court[14] the following general principles in relation to stun guns: first, as deterrence, an immediate custodial sentence is required for offences of this type; second, there is no tariff for the offence the starting point to be adopted to be considered in the light of the facts of each case; and third, while the court will take into account all the relevant circumstances of the case, important considerations which often arise are, firstly, the power of the weapon in terms of the voltage that it is capable of discharging; and secondly, whether there is evidence that the offender or some other person has used or may use the weapon for an unlawful purpose or to facilitate an unlawful activity.  

17.The court went on to say even though there may be no present intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such purpose, that is also a factor which will result in a higher starting point of sentence[15].

The power of the stunning devices

18.The stunning devices being able to deliver a pulsating voltage of between 56,000 and 213,000 volts[16], the power is much higher than in most reported cases.  What however is important is what harm such a device can cause[17].

19.A brief application of the stunning devices would cause a person to suffer intense localised pain and muscular spasm.  Applied for more than 3-5 seconds a person may suffer muscle paralysis and remain dazed, weak or immobilized for up to several minutes.  Other injuries may also be sustained from a fall caused by the shock and lacerations as a result of the application of the sharp metal electrodes[18]. From this description it is clear that the stunning devices had the potential of causing serious injury.

The use of the stunning devices

20.Taking into account that 19 of the stunning devices would have been posted to Israel had they not been intercepted and that instructions in Hebrew are included in the packaging[19], I am prepared to accept that your intention was to export all the stunning devices to Israel. 

Case law

21.The reported case law shows that immediate prison sentences are imposed with starting points generally ranging from 18 months to several years[20].  The lower end of that range is usually where the offender is found in possession of a single stun gun with no evidence that the stun gun was to be used for an unlawful purpose.

22.In Mr Shah’s experience offenders caught at the airport in possession of a stun gun usually receive a financial penalty.  Some support for this can be found in an article submitted by Mr Shah from the South China Morning Post dated 11 February this year[21].  The article suggests where the stun gun is found in the luggage of a transit passenger a fine is usually imposed or a few days imprisonment.  With respect possession of a single stun gun by a transit passenger is very different to someone who is involved in importing and exporting stun guns. 

23.Custodial sentences are imposed where the passenger is not in transit but is bringing the stun gun into Hong Kong.  In HKSAR v Wong Wing Wong[22] the appellant was intercepted at the Lo Wu Control Point.  He was found in possession of a stun gun which he carried for self-defence having been robbed in China.  The Court of Appeal accepting there was no evidence to suggest the appellant intended to use the stun gun for an unlawful purpose held that the appropriate starting point was 18 months imprisonment.

24.In HKSAR v Li Hung Kwan[23] the Court of appeal reviewed a number of cases concerning stun guns, including HKSAR v Wong Wing Wong.  The facts were that the appellant, an illegal immigrant, claimed to pick up from a construction site a stun gun capable of generating some 12,000 volts into the human body.  The Court of Appeal held that a starting point of 20 months imprisonment was appropriate in the absence of any evidence suggesting the stun gun was to be used for illegal purpose.  This approach to sentencing is also seen in the recent case of HKSAR v Mohamed P Shafik.

25.My research has revealed two cases in the District Court (which I referred to Mr Shah) with somewhat similar facts, which give some indication of the attitude of the courts to sentencing where the stunning devices were brought into Hong Kong for subsequent export. 

26.In HKSAR v He Honglu[24] the defendant pleaded guilty to two offences of dealing in arms without a licence.  The arms were 2,451 stun guns, also described as intended for self-defence use by women.  

27.The defendant, a mainland resident, who ran a legitimate transportation business arranged on behalf of the owner of the stun guns to transport them to Hong Kong for export to Andorra.  Upon arrival in Hong Kong the stun guns were stored in a warehouse pending collection by Federal Express for delivery to Andorra.  The goods were rejected at the port of entry in Andorra and returned to Hong Kong when Customs & Excise officers inspected the cargo and discovered the stun guns.

28.Deputy Judge G Lam (as he then was) whilst accepting that the defendant probably committed the offences due to his ignorance of the law stated as the owner and person-in-charge of a transportation company he had the duty to ascertain the legality of his clients’ goods before shipping them.  The judge found the defendant had failed his duty of due diligence.  On this basis the judge distinguished the case from the typical stun gun cases and considered that the defendant’s wrongdoing amounted to a technical breach.  In all the circumstances of the case the judge imposed concurrent sentences of 5 months imprisonment.

29.HKSAR v He Honglu was relied upon in HKSAR v Fang Shanzhong[25] where the defendant, also a Mainland resident, pleaded guilty to one charge of possession of 20 stun guns found in the defendant’s luggage when taking a flight to Indonesia. 

30.Deputy Judge K H Cheang whilst accepting that the defendant was entrusted to take the guns from the Mainland to a company in Indonesia for security purposes did not accept this was merely a technical breach of the relevant statute.  Taking into account there were 20 stun guns the judge adopted a starting point of 30 months imprisonment which he reduced to 20 months by reason of the defendant’s plea of guilty.

31.Unlike the defendants in He Honglu and Fang Shanzhong you are a Hong Kong resident and the owner of the stunning devices.  Mr Shah says your biggest mistake was failing to check that you needed a licence to import and export the stunning devices[26].

32.When you posted the parcels you declared that the contents were flash lights and not stun guns[27]. Mr Shah explains the declaration was to facilitate the smooth posting of the stunning devices and not because you knew you did not need a licence. 

33.When the court asked to see the customs declarations the court was told there was no declarations. Only when you told the court there was did the prosecution look again and find the declarations.  This Mr Shah submits shows that you did not know a licence was needed otherwise you would not have informed the court you had made the customs declarations.

34.In the circumstances I am prepared to proceed on the basis that you did not know you needed a licence.  Ignorance of the law is no defence but may constitute mitigation whereby a merciful sentence can be imposed as culpability is less than someone who has deliberately flouted the law[28].  

35.I do not however accept that the offences are technical offences.  You clearly knew you were trading in devices which were capable of causing injury.  In this regard I note that the boxes containing the stunning devices describe them as high-power stun guns which produce high power pulse electric shock[29].  You could quite easily have ascertained whether you needed a licence to import and export these items.

36.The case law shows that notwithstanding ignorance of the need for a licence an immediate custodial sentence will still be imposed[30].  The emphasis is not on whether the offender knew of the need for a licence but whether there is any evidence the stunning device was to be used for an unlawful purpose.  Where there is no such evidence a more lenient sentence will be imposed. 

37.Unlike in He Honglu the stunning devices were not kept in a warehouse pending delivery to Israel.  The stunning devices having been posted to you in Hong Kong there remained the risk they could be used in Hong Kong.  However, accepting your intention was to sell all the stunning devices to Israel, this risk can be said to be very much on the low side. 

38.I am nevertheless satisfied in the circumstances of this case a deterrent sentence is required.  Taking into account there was a total of 130 stunning devices; the power of the stunning devices; your intention was to sell all the stunning devices to Israel where possession was legal; and the risk they could be used in Hong Kong is very much on the low side, I am satisfied bearing in mind the need for individual justice that a starting point of 18 months imprisonment is appropriate on each charge.  

39.Giving you full credit for your pleas of guilty reduces the sentences to 12 months imprisonment.  

Delay

40.Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[31].

41.You were arrested on 28 October 2014 and charged over 12 months later on 19 November 2015.  The delay in charging appears to be because of the time taken to obtain the reports on the stunning devices, some of which are dated September 2015. 

42.The matter has now been hanging over you for over 20 months during which time Mr Shah informs the court you have suffered from depression and lost a lot of weight. 

43.Whilst the case could have been brought to court earlier I am satisfied on what I have been told in court there has been no undue delay.  Nevertheless I am satisfied some credit should be given in sentence for this delay[32].  In the circumstances I further reduce the sentences by 1 month imprisonment. 

44.You are convicted and sentenced to 11 months imprisonment on each charge.  I am satisfied concurrent sentences are appropriate.  The total sentence to be served by you is therefore 11 months imprisonment. 

[1] Cap 238.

[2] MFI-2.

[3] MFI-13.

[4] MFI-4.

[5] Mr Shah says that the stunning devices were specifically for use by females.

[6] MFI-5.

[7] The offences are excepted offence for which a suspended sentence cannot be imposed.

[8] See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.

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

[10] [2012] 3 HKLRD 652 at §38.

[11] Judgment at §35.

[12] HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.

[13] CACC 224/2014 at §§29-32.

[14] HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai CACC 264/2005.

[15] Judgment at §32.

[16] Admitted facts §13(i).  Evaluation reports of 23 devices (MFI-2) were also submitted to court.

[17] See for example HKSAR v Mohamed P Shafik at §37.

[18] Admitted facts §13(ii). Forensic reports of 19 devices (MFI-7) were also submitted to court.

[19] Photocopy of the packaging marked MFI-8.

[20] See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Yung Ting ChunCACC 164/1999; HKSAR v Wong Wing Wong CACC 214/2002; HKSAR v Li Hung Kwan[2003] 1 HKLRD 204 and HKSAR v Mohamed P Shafik CACC 224/2014.

[21] MFI-6.

[22] CACC 214/2002 (unreported). The judgment is in Chinese with an English digest in the Criminal Appeals Bulletin, February 2003. 

[23] [2003] 1 HKLRD 204.

[24] DCCC 950/2009.

[25] DCCC 535/2010.

[26] In the letter from the defendant’s wife it is stated that once the defendant knew possession of arms without a licence was illegal he applied and obtained the necessary licences.  This Mr Shah explains is a misunderstanding on the part of the wife and that no licence was ever applied for or obtained. 

[27] See envelope MFI-9.  The court was informed all the parcels bore the same description.

[28] See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214.

[29] Photocopy of the packaging marked MFI-8.

[30] See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC 551/1998; HKSAR v Hung Chun Kit CACC 579/1998 and HKSAR v Wong Wing Wong CACC 214/2002 together with more recent sentence cases in the District Court for exampleHKSAR v Meng Min DCCC 1023/2009; HKSAR v Tang Yanqing DCCC 1394/2010 and HKSAR v Lam Lai Chiu DCCC 87/2014.

[31] See for example HKSAR v Cheung Suet Ting CACC 226/2009.

[32] See HKSAR v Wong Ka Wah CACC 260/2006.