HKSAR v. Tsiang on Yan

HCCC 358/2017

[2018] HKCFI 218

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 358 OF 2017

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT:

The defendant had pleaded guilty in the magistrate’s court to one count of possession of a dangerous drug, namely 359.61 grammes of cannabis in herbal form. He had also pleaded guilty to the 2nd charge of possession of arms and ammunition without a license, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. The particulars are that on 18 June 2016, at the Tun Yu Farm, in Lok Ma Chau, New Territories, he had in his possession one self-loading pistol in 0.45 inch ACP calibre with a magazine and 13 rounds of live ammunition in 0.45 ACP calibre without a license. The defendant was committed to this court for sentence.

The facts disclose that on 17 June 2016, a search was conducted at the Tun Yu Farm in Lok Ma Chau. The farm consisted of a fish pond surrounded by wooden huts and container huts. In one of the container huts decorated as an office, on a table, were found the cannabis in herbal form, subject matter of the 1st charge. A herb grinder, two electronic scales, a cigarette rolling device, cigarette papers and two packs of transparent resealable plastic bag. The defendant was arrested and cautioned after which he said the cannabis buds were for his own consumption.

The estimated retail value of the cannabis was in the region of about HK$40,276.

Also found in the same search was the gun and ammunition concealed inside some wooden planks on the periphery of the bottom of a wooden hut at the farm. This gun and ammunition was found contained inside a plastic bag inside the black bag and it was subsequently examined by a forensic firearms examiner.

The self-loading pistol was inserted with a magazine but there was no cartridge found in the magazine. The pistol was in working order and the live ammunition, there were 13 rounds of live ammunition in the same calibre as the pistol. The examination report indicated that the pistol was a Chinese origin Norinco model 1911-A1 compact self-loading pistol in 0.45 ACP calibre. The pistol was test fired and found to be in working order and that the live ammunition were found to be suitable for discharge from the pistol. DNA was also conducted on the trigger, hammer and handle of the pistol and the conclusion was that the human DNA found could have originated from the defendant.

The farm itself was on a piece of land which was rented by a Mr Ngan in July 2013. The defendant was interested in renting this land from Mr Ngan and in November 2013, a tenancy agreement was made between Mr Ngan and the defendant to rent the farm for a period of three years. The farm was owned by a company called Tun Yu Farm and the directors of the company were a Mr So and a Mr Chan. Mr So said he knew the defendant since they were children and Mr So was interested to invest in the farming business and so Mr So and Mr Chan provided some money for the farming business and the farm was operated and managed by the defendant.

The defendant was aged 54 at the time and he has a criminal record although nothing similar.

In mitigation, Mr Lam disclosed that the defendant is married and has a wife and son and daughters all who are working and the farm is what we call an ecological farm and also the defendant raised sheep on it. In mitigation, Mr Lam said that the defendant is a gun enthusiast and that he was trained by the British army in Hong Kong in the 80s. He became a gun enthusiast after that and that he found the gun and decided to keep it for his own pleasure.

Mr Lam submitted that the gun and ammunition were well hidden and pray in aid the case of HKSAR v Chan Chi Fun [2006] 1 HKLRD128.

In that case, the Court of Appeal said that in determining the appropriate sentence that some of the mitigating or aggravating factors included the type of firearm and ammunition involved, whether the defendant physically carried the firearm and ammunition, whether the firearm is loaded, whether the firearm had been used, whether the defendant intended to use the firearm for illegal purposes, whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders and whether the defendant had a clear record. The level of sentence depended 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 that case, as observed by the Court of Appeal, the firearms were stored in a safe place such as a safety box and none of the firearms had been loaded. In this case, the police did not need to open any safety box. It was hidden - of course it was hidden - under some planks but could be accessible to someone searching the premises. What is even more dangerous which I consider to be an aggravating factor is the fact that live ammunition was found together with it. Although the defendant claimed that he was not going to use it for any illegal activities. However, anyone finding the pistol together with the live ammunition could do considerable damage and endanger lives in Hong Kong and therefore the Court of Appeal has even said that this type of sentence calls for a deterrent sentence.

In fact in HKSAR v Chan Hoi Ngam in [2000] 1HKC618, the Court of Appeal said in the headnote that:

“Hong Kong’s firearm sentencing policy had been designed to act as a strong deterrent to those with no right to have such weapons. It was easy to see that there were cases where a judge might take a lower starting point than 12 years for offences brought under this section depending on the circumstances of the case. The sentencing judge had a considerable discretion to reduce the period of imprisonment to be served even where a 12 years starting point after trial was taken.”

The Court of Appeal referred to the cases of Queen v Ho Chun in [1992] 1 HKCLR 86 and Queen v Milhench in [1996] 1 HKC628. Following that, Chan Hoi Ngam had been followed by more up to date cases, for example, in HKSAR v Hu Quanwu [2011] 4 HKC 331.

In that case, the Court of Appeal said in headnote 1 that:

“Possession of arms and ammunition was an extremely serious offence in Hong Kong. The proper sentence on a plea of guilty for a simple possession of a gun would be 6 years. Where there was an intention to use the gun for an unlawful purpose something in excess of 6 years would be appropriate. Possession of a loaded firearm or possession of both an unloaded firearm and ammunition, was an aggravating factor which might lead to the enhancement of the usual sentence.”

The Court of Appeal in that case also did refer to the case of Chan Hoi Ngam and also following Chan Hoi Ngam was the case of HKSAR v Terry Cheung Sik Wai in [2011] HKCU 2309. In that case, the Court of Appeal said in its discussion at paragraph 17:

“Possession of arms and ammunition without a licence is always considered a serious offence and harshly dealt with by courts in Hong Kong. It is perhaps because of such an approach that Hong Kong remains a relatively safe city.

Queen v Ho Chun [1992] 1 HKCLR 86 has been regarded as a sentencing guideline case for possession of firearms and ammunition without a licence. In giving the judgment of the court, Silke VP said that the Court of Appeal would be unlikely to interfere with sentences of at least 8 years’ imprisonment after a plea of guilty. That means a 12-year starting point was considered appropriate. Such an approach was approved by the Court of Appeal in R v Milhench in [1996]1 HKC628, HKSAR v Yau Siu Kai in [2001] 1 HKC 427 and HKSAR v Chan Hoi Ngam in [2000] 1 HKC618.”

So it is clear that the Court of Appeal have all along been terribly concerned about this type of offence and the considerable harm it can do to our society and the fact that a deterrent sentence is absolutely necessary.

I have considered and taken into account all the cases and the circumstances of this case and I determine that in relation to the 1st offence that a starting point sentence should be one of 3 months, reduced to 2 months for his plea.

Now, in the 2nd charge, the problem is that there were 13 live rounds found together with the pistol. It was not locked up anywhere. It was just concealed under some planks in a hut. It was easily accessible to someone searching for it. The pistol was in working order and fully capable of discharging the 13 live rounds. So a deterrent sentence is necessary in this case and I therefore consider that a 12 years starting point is appropriate and reducing it to 8 years because of the defendant’s plea.

I have to consider the totality principle and after having considered that I have decided to make both sentences concurrent.

So the defendant goes to prison for 8 years.