HKSAR v. Royster William Edward

DCCC 142/2020

[2020] HKDC 532

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 142 OF 2020

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Reasons for Sentence

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1.The defendant, Mr Royster, has been convicted after trial of one offence of possession of arms and ammunition without a licence. The factual details relating to the offence of firearms and the ammunition are contained in the reasons for verdict and can be found there.

2.The defendant is a person of clear record in both Hong Kong and the United States of America.  I would categorise him as a man of the highest character, a former naval aviator in the United States, discharged following an injury received in the line of duty.  He has also been a long-term pilot officer in United Airways.  He is highly qualified, highly recommended, highly thought of by his colleagues and employer, and there is testamentary evidence to that.

3.He is also a family man, with dependent relatives, including a mother who is over 90 years of age, suffering from what appears to be the early stages of some form of dementia, clearly in need of the company and care that a son can give.

4.The defence in mitigation characterise this as an odd or unusual case.  I agree with that definition, but the facts that have been put before me show that, as found by me, the defendant knew of the existence of the firearm in the luggage when he presented it at the departure clearance at the Hong Kong International Airport, what I described as a seemingly reckless act for a disciplined, educated man of good character.  The case is therefore unusual.

5.Possession of the firearm at home for him in the United States of America would of course be perfectly lawful.  The question is how does a court approach sentence in a case such as this?

6.Now, one of the matters the court has to take into account is that, consistently, the courts have taken a serious view of the possession of unlicensed firearms in Hong Kong and it has been said on more than one occasion that general deterrence is an important element of sentencing.  It is considered to be a paramount element in the sentencings of firearms cases.

7.It is said that convictions should, in the normal course of events, result in an immediate term of imprisonment, and the circumstances that the court should consider can be found in cases such as HKSAR v Chan Chi Fun  [2006] 1 HKLRD 128.  The courts must consider:  the type of firearm and ammunition, did the defendant physically carry the firearm?  Was the firearm loaded?  Had the firearm been used?  Did the defendant intend to use the firearm for illegal purpose?  Was the firearm properly stored and could it be easily accessible by other offenders?  Looking at the defendant’s personal circumstances, does he have a clear record?  What is the potential risk of the firearm, taking into account the circumstances and the defendant’s background?

8.This firearm, as I describe, is a battlefield sidearm of the era before the 2nd World War.  It was loaded.  Some of the ammunition was target ammunition.  It had been used but obviously in the United States and only for legitimate purposes there, for target shooting and the like, and possessed in a jurisdiction where it was lawfully possessed.

9.I find the defendant did not intend to use this weapon for any illegal purpose.

10.The firearm was, when discovered, still under the defendant’s custody, and I believe would have been unobtainable, whilst the defendant had custody of it, by anyone else.

11.The defendant himself has a clear record, impeccable character.  The risk of the firearm falling into anyone else’s possession and being unlawfully used here I would describe as extremely low, given the defendant’s disciplined attitude and experience of firearms.

12.I find the case is unusual and difficult.  It appears to me that the defendant was trying to get the firearm home to where its possession would be lawful.  The risks contained in that exercise were, I find, very low.

13.Mr Midgley, on behalf of the defendant, points out to me the defendant has been detained in custody in Hong Kong prior to trial for a period of some 6 months, which would mean a head sentence of some 9 months.  He asks that that time served be the time to be served by way of a sentence.

14.I consider this is a case where, albeit unusual, the principle of general deterrence does require an immediate term of imprisonment.  General deterrence has to be still the paramount consideration.

15.Possession of a firearm always entails some risk in a jurisdiction such as Hong Kong and in this case the firearm was, of course, loaded.  The defendant must have known of that situation when he tried to take the firearm through the departure clearance.  That of course is unlawful.

16.The imposition of an appropriate term of imprisonment in this case is difficult.  The facts, as I have said, require a custodial term.  In the case of Secretary for Justice v Yan Shen [2012] HKCA 221, the Court of Appeal outlined that general deterrence in that case, where again an unloaded pistol was attempted to be taken through departure clearance, they set the figure for general deterrence at a sentence of 18 months’ imprisonment.

17.Here, the pistol is loaded, so it is slightly more serious.  I consider the appropriate sentence in this case is one of 24 months’ imprisonment, and that is the sentence I will impose.

(T Casewell) District Judge