HKSAR v. Chan Tung Wing

HCCC 287/2019

[2020] HKCFI 2478

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 287 OF 2019

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

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COURT: Defendant, you pleaded guilty before a magistrate at the Eastern Magistracy on 26 August 2019 to a charge of possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Chapter 238. As a result of your plea of guilty and admission of facts in the Summary of Facts, you were committed here to the Court of First Instance for sentence.

You have admitted that on 21 July 2018, at Sham Shui Po, Kowloon, you had in your possession arms and ammunition, namely one shotgun and seven live shotgun cartridges in 12 gauge calibre ammunition, without a licence.

At about 1.40 am on 21 July, a uniformed police officer patrolling along Tung Chau Street, Sham Shui Po saw you loitering near some temporary wooden huts under the Tung Chau Street flyover. The officer and his colleague approached you for an enquiry. When one of the officers used his torch and shone it on you and declared his identity, you ignored him and ran along the footpath outside Tung Chau Street away from the officers.

You were eventually stopped outside a tennis court of Tung Chau Street Park. Upon search of your backpack, a shotgun loaded with a live round of shotgun cartridges was found. You were arrested and cautioned. You stated that you were worried someone would kill you. Sweeping was conducted along the route of your escape of which the police officers found a total of six shotgun cartridges.

In a video-recorded interview, under caution, you stated that about four years ago a person with the surname Xie gave you $3,000 and asked you to take this shotgun from the mainland to Hong Kong. You accepted the offer. You first dismantled the gun in the mainland, then took the parts back to Hong Kong.

Upon your return to Hong Kong, you reassembled the gun at home and kept the shotgun and cartridges at your residence as Xie asked you to keep the gun for him. You knew Xie needed the gun as Xie was in debt. Xie later told you that you did not have enough shotgun cartridges. You therefore got more cartridges from a person named So Chi-hung.

You continued to store the gun and cartridges at your home for Xie and Xie told you that he would come to pick it up when something came up. However, Xie never came to pick them up.

Two days before you were arrested, a female friend of yours asked you for a weapon as her boyfriend had earlier been assaulted. You told her you had a gun. She asked you to bring the gun out for her. You agreed. You were arrested when you were on your way to meet up with this friend. You accepted that the six shotgun cartridges subsequently found by the police were dropped by you when you were trying to escape. You also told the police you never used the gun.

Following examination, the gun seized was found to be one live shotgun in 12 gauge calibre. The examination conducted on it for firing was conducted successfully. The seven cartridges seized were found to be live shotgun cartridges.

There was DNA found on the cartridge that could have originated from you, and DNA found on the shotgun was a mixture of at least three DNA sources of which one was the possible source from you. You do not hold a licence for firearms or ammunition.

Defendant, you are 58 years of age. You have two previous convictions which are minor convictions. Before your arrest, you were a casual decoration worker. You are a drug abuser and you are educated up to Primary level 5. You cohabitate with your girlfriend and her son. You have never been sentenced to imprisonment before.

Mr P K Chan has submitted full mitigation on your behalf and I have taken into account what he has had to say. It is clear from your admissions after arrest that you have been fully co-operative with the police. Apart from giving a full and frank admission to the offence, your exposure of Mr So Chi-hung had led to his arrest. I am informed that he was charged and has since been convicted of possession of ammunition without a licence. In fact, you gave evidence for the prosecution in that case, District Court case, against Mr So, and I am informed that there is no dispute that you gave truthful and material evidence and this provided useful assistance to the prosecution and resulted in the conviction of Mr So. I am informed that in fact he was only convicted a few days ago, that is on 28 August 2020, and he is pending sentence.

Mr Chan has been forthright in conceding that there are two aggravating factors in this case. The first is that the shotgun and shotgun cartridges were obtained from mainland China so that there is an international element, and the second is that the shotgun was loaded when you were arrested.

He, however, relies on other mitigating factors and they are your plea of guilty at the first opportunity, the fact that you have never used the gun or the cartridges even after you had obtained them some four years ago. You were only keeping the arms and ammunition for another person. You have no similar record for use of violence or for a similar offence and do not have any triad background.

Mr Chan submits that the court should adopt a sentence of not more than 12 years’ imprisonment and give you a 50 per cent discount incorporating the one-third discount for your plea of guilty as a result of your assistance provided to the authorities. I accept Mr Chan’s mitigation in that you should be given a 50 per cent discount from the sentence point as you had given material and truthful evidence against Mr So and you had pleaded guilty at the first opportunity, and the authority I rely upon and to which Mr Chan has referred me to is that of Z v HKSAR [2007] 10 HKCFAR 183.

In respect of the appropriate sentence for the possession of firearms and ammunition, Mr Chan has accepted the cases put forward by the prosecution and those are R v Au Yeung Wai Kwong, CACC 238/1994, HKSAR v Chan Hoi Ngam, CACC 243/1999, HKSAR v Sau Yi(Yau Siu?) Kai, CACC 148/2000, HKSAR v Cheung Sik Wai, Terry, CACC 373/2009, and R v Man Hung Pui, CACC 222/1992.

He further relies upon the case of HKSAR - a more recent case - HKSAR v Hu Quanwu [2011] 3 HKLRD 686 whereby the Court of Appeal there confirmed that the 12-year starting point was appropriate for an offence of this type where there was a live ammunition. In that case of Hu, the Court of First Instance, the sentencing court, had imposed a starting point of 13 years as the gun was imported into Hong Kong. The Court of Appeal, however, allowed the appeal and found the starting point was manifestly excessive and reduced the starting point to 12 years’ imprisonment.

At paragraph 27, Yeung JA, or VP as he is now, said the following:

“The judge, in her reasons for sentence, clearly took into consideration that the firearm and ammunition were imported into Hong Kong. We agreed that if a gun ‘was brought into Hong Kong’ for a criminal purpose, it would be an aggravating factor. However, the evidence was unclear on this issue, as conceded by Ms Rosa Lo for the respondent. The applicant said he was told to come to Hong Kong and ‘to bring something’, but the gun was given to him by Li in a park in Temple Street. We were persuaded that the judge was wrong to have taken into account, as an aggravating factor, that the gun was brought into Hong Kong.”

I distinguish this case from Hu’s case in that in this case the defendant had imported the gun into Hong Kong, knowing that Xie needed the gun as Xie was in debt. This is a clear irresistible inference that the gun was to be used for a crime.

Furthermore, in this case, on the defendant’s admission, on the evening he was arrested he was going to give this gun to a friend as that friend’s boyfriend had been assaulted. Again, this is clearly for a criminal purpose, for a crime. So, I distinguish the case from Hu’s case and consider that there is an aggravating factor here to which the starting point of 12 years’ imprisonment should be enhanced.

Defendant, had you been convicted after trial, I would have taken a starting point of 12 years’ imprisonment. I enhance that starting point by 6 months for the importation of the gun for a criminal purpose and also the fact that on the early morning that you were arrested you were also going to give this gun to somebody else for another criminal purpose.

You have pleaded guilty at the first opportunity and you have also given evidence and provided assistance to the authorities. In those circumstances, I will discount the sentencing point by 50 per cent which includes the one-third discount.

In the circumstances, defendant, you are sentenced to 6 years and 3 months’ imprisonment.