HKSAR v. Gurung Bikash

DCCC 668/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 668 OF 2016

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REASONS FOR SENTENCE

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1.After trial, the defendant is convicted of a single charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238.

2.The subject matter of the firearm is a torch-like stun gun.

Facts

3.The fact of the case has been set out in my Reasons for Verdict.  As said, it was basically a simple case.  At 02:57 on 26 December 2015, the defendant was working as a security officer outside the Bungalow Club situated at Ground Floor, No 60 of Wyndham Street, Central when police officers noticed and heard some cracking noises or bang sounds and noticed the defendant hiding the torch-like object into his inner pocket of the suit jacket.  Later the defendant was apprehended and searched and inside his inner jacket pocket, a black torch-like object about 17 cm long was found.  The object was later examined by the police and determined to be a stun gun (Exhibit P1). 

4.In his record of interview, the defendant maintained all along that he only bought the object from a stall in the night market at Temple Street as a torch and he only used it for this purpose.  He maintained that he never knew that the torch was also a stunning device.

5.The police had later tested P1 and confirmed that it was in good working order and therefore could be classified as a stunning device.  Its peak-to-peak pulsating voltage is about 29 kilovolts.  Throughout the trial, the defendant did not contend that he hold a licence for the possession of this stunning device.

Mitigation and Sentence

6.The defendant is currently 46 years old.  He was born and raised in Nepal and came to Hong Kong in 1997 and is now a Hong Kong permanent resident. He has two marriages.  He and his first wife divorced in 1997 and they have a son who is 21 years old studying in the UK.  He is now married to his second wife who is 35 years old in 2010.  They have two young daughters respectively 5 years old and 7 months old.  The family resides in Yau Ma Tei, Kowloon.

7.As for his employment record, the defendant has been employed as a security guard for 3 years since 24 December 2014.  Before that, he was also working as a security guard for other employers for about 12 years.  His monthly salary is HK$25,000.  Each month, he has to pay about HK$5,000 to contribute to his parents in Nepal and also his son in London as living expenses.  The defendant was the sole breadwinner of the family until he was charged with the present offence.  After his arrest, the defendant’s wife became working as a part-time merchandiser and earns about $10,000 a month.  The defendant is only educated up to primary 3 in Nepal.

8.As to his previous conviction, defendant has no similar conviction but he has one conviction in 2005 for the charge of possession of Part I poison for which he was only fined $2,000.

9.In mitigation, Mr Lo stressed the fact that the defendant is a first-time offender for this offence.  He submitted that the defendant only used the item as a torch and never intended to use the stun gun function for any illegal purpose and nobody was injured by the stun gun.  The defendant was very co-operative and tried to give explanations to the police at the earliest possible opportunity despite the language barrier. 

10.Mr Lo also stressed that the defendant had gone through one of the most dreadful period of his time and no doubt this conviction and the sentence that I am going to pass would have a very serious consequence on his family because the defendant would lose his job and income and his wife will need to stop working in order to take care of the two very young daughters at home.  The family will face huge financial difficulty.  The absence of the defendant from the family during his sentence will also impact on the upbringing of the two young daughters.

11.All in all, Mr Lo asked the court to be as lenient as possible and stressed that the chance of the defendant reoffending this offence is slim.

12.I have also had the opportunity of reading the letters of mitigation from the defendant and also his wife. 

Sentencing considerations

13.Possession of arms without a licence in Hong Kong is of course a serious matter.  The Court of Appeal has said in the past repeatedly that a clear message must be sent to the general public that the courts in Hong Kong will not treat this type of offence lightly irrespective of the purpose of possessing these arms.  An immediate custodial sentence is therefore inevitable even for the fresh offenders. 

14.In sentencing, I have referred myself to the Court of Appeal decision in HKSAR v Mohamed P Shafik (unreported, 5 March 2015) CACC 224/2014.  In that case, the Court of Appeal has said:-

“29. In respect of Charge 3, the following general principles derived from the Court of Appeal’s judgments in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Fan Kwok Wai, CACC 264/2005, unreported, 10 October 2015, provide useful guidance.

30. First, as deterrence, an immediate custodial sentence is required for offences of this type. See HKSAR v Li Hung Kwan, at §17.

31. Second, the starting point to be adopted has to be considered in the light of the facts of each case. There is no tariff for the offence. See HKSAR v Li Hung Kwan, at §17; HKSAR v Fan Kwok Wai, at §8.

32. 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. 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. See HKSAR v Fan Kwok Wai, at §9.”

15.In that case, the appellant was a bouncer and had the stun gun for his own protection.  It produced 145,000 volts if applied to a human body.  The Court of Appeal referred to the forensic medical report produced in the case and concluded that although the voltage that the stun gun can discharge is considerably higher than those found in other cases, it is not clear that it would cause greater harm to the human body correspondingly. 

16.As to the submission by the appellant’s counsel that the defendant did not intend to use the stun gun illegally, the Court of Appeal has said that when the appellant was arrested, the stun gun was found being secured by the belt around his waist.  He was carrying the stun gun on his person.  The risk of him using the stun gun when necessary is real.  In these circumstances the Court of Appeal concluded that the judge was correct in drawing the inference as he did.

17.However, the Court of Appeal was of the view that the overall circumstances of that case is not so serious that it warrants a starting point as high as 30 months.  In the end, they reduced the sentence from 30 months to 24 months instead.

18.Coming back to our present case.  The voltage in question is reported to be high, as high as 209,441 volts, even higher than the Mohamed P Shafik case that I have just mentioned.  However, when I refer myself to the forensic medical report (Exhibit P6) in this case, the senior forensic pathologist also fairly points out that while the voltage is high, the numbers of pulse generated per second is much greater.  Each pulse however lasts a very much shorter period of the time and carries a much smaller charge.

19.The author went on to say that one can only surmise that those devices are also designed with non-fatal incapacitation in mind.  It is also unproven that the device with varied electrical property will have exactly the same physiological effects. 

20.Therefore, I have to come to the same conclusion as the Court of Appeal did in the Mohamed P Shafik case that although the voltage that the stun gun can discharge in this present case is also considerably higher than those found in other cases, according to the report, it is still not clear that it will cause greater harm to the human body correspondingly.

21.As to the submission that the defendant had never used the stun gun for any illegal purpose, in this present case, we have the evidence from PW1 that he heard the cracking or bang sounds produced from P1.  This is clear evidence that the stun gun has been actually operated but it is however unclear as to the circumstances of why it was operated let alone that it was operated for any illegal purpose.

22.As the defendant was a bodyguard, a security officer or a bouncer of a club by employment, the risk of using it for self-protection cannot be ignored or overlooked and the fact that there is evidence that the stun gun was in operation in the night when he was arrested also means that the risk is more apparent than real.  In the circumstances, I can only conclude that the risk of the defendant using the stun gun for illegal purpose was still high. 

23.Taking all the circumstances of the case into consideration, of course I do not overlook the impact that this present sentence will no doubt have on the defendant and his family.  However, this is a very serious matter and the defendant must be punished accordingly.

24.In the end, I consider that the case warrants a starting point of 24 months.  The defendant pleaded not guilty and there is no other mitigating factor that I can identify so the sentence is 24 months’ imprisonment.