The defendant pleaded guilty before a magistrate on 9 August 2021 this year and was committed to the Court of First Instance for sentence. He confirmed the plea and admitted the facts in support of the charges before me this morning.
All the offences were committed on the same day on 21 February 2019. Count 1 relates to the possession of a self-loading pistol and 30 rounds of ammunition at a shop in Mongkok. Count 2 relates to the possession of an air gun, four self-loading rifles, 12 self-loading pistols and 3,550 rounds of ammunition found at the defendant’s residence in Shatin. Count 3 relates to the possession of an explosive substance, namely, six bottles of gunpowder at the same residence. Count 4 relates to the possession of a self-loading pistol and 51 rounds of ammunition at the defendant’s workplace in San Po Kong.
In total, there were 14 self-loading pistols, four self-loading rifles, one air gun, 3,631 rounds of ammunition and six bottles of gunpowder.
The facts which the defendant has admitted may be summarised as follows. In respect of the 1st count, on 21 February 2019, the police officers conducted an operation at a shop in Mongkok area. At about 5.42 pm on that day, the defendant arrived on his own with a rucksack. He was intercepted by police with the following items found in the rucksack: firstly, one self-loading pistol in 9 mm LUGER caliber inserted with one magazine containing 15 rounds of live ammunition suitable for discharge in like caliber pistols, all in working order; secondly, another magazine capable of storing 9 mm LUGER caliber ammunition containing 15 rounds of live ammunition suitable for discharge in like caliber pistols.
Under caution at the scene, the defendant admitted his possession of the pistol and ammunition for self-defence. In a subsequent video-recorded interview, the defendant admitted ownership of the firearms and ammunition and said the pistol in the rucksack was made by him, and he put these items in the rucksack because it was dangerous outside.
The CCTV footage of the defendant’s residence and workplace showed that he was in possession of the rucksack where the pistol was found at all times on the day of arrest.
In respect of the 2nd and the 3rd counts, the defendant at that time lived in Shatin. His residence was searched by police with the following items found and seized from his master bedroom. There are a total of five items: the first item, a pre-charged pneumatic powered air gun which was capable of discharging .25” caliber pellet with muzzle energy of 55.46 joules. Its detachable air tank was found to have been charged with pressurised gas.
Secondly, the following four self-loading rifles, all in working order:
(a) one self-loading rifle designed to discharge 6.5 mm Grendel caliber ammunition, with a magazine containing 15 rounds of ammunition and was suitable for use in this rifle;
(b) two self-loading rifles, each with a magazine containing 20 rounds of live ammunition in .223” Remington caliber, and were suitable for use in these rifles;
(c) one self-loading rifle with a magazine containing 10 rounds of live ammunition in 6.5 mm Creedmoor caliber, and was suitable for use in this rifle.
Thirdly, the following 12 self-loading pistols, all in working order:
(a) one self-loading pistol with a magazine containing 15 rounds of live ammunition in 9 mm LUGER caliber which was suitable for discharge in like caliber pistols;
(b) one self-loading pistol with a magazine containing seven rounds of live ammunition in 9 mm LUGER caliber which was suitable for discharge in like caliber pistols;
(c) two self-loading pistols, each with a magazine containing 11 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like caliber pistols;
(d) one self-loading pistol with a magazine containing 17 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like caliber pistols;
(e) one self-loading pistol with a magazine containing 13 rounds of live ammunition in .40” S&W caliber which were suitable for discharge in like caliber pistols;
(f) one self-loading pistol with a magazine containing 15 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like pistols;
(g) one self-loading pistol with a magazine containing 10 rounds of live ammunition in .40” S&W caliber which were suitable for discharge in like caliber pistols;
(h) one self-loading pistol with a magazine containing 15 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like caliber pistols. The defendant’s DNA was found on this pistol;
(i) two self-loading pistols, each with a magazine containing 15 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like caliber pistols;
(j) one self-loading pistol with a magazine containing 17 rounds of live ammunition in 9 mm LUGER caliber which were suitable for discharge in like caliber pistols.
Fourthly, 3,324 rounds of ammunition, all suitable for discharge. The defendant’s DNA was found on two of the magazines containing ammunition. In particular, there was a green box containing 18 rounds of ammunition, 15 of which were suitable for discharge and are counted towards the said 3,324 rounds of ammunition.
Fifthly, six bottles of gunpowder which are low explosive. Explosive effect for low explosive depends on many variables, including the quantity of low explosive and the level of confinement.
So, in total, one air gun, four self-loading rifles, 12 self-loading pistols, 3,550 rounds of ammunition and six bottles of gunpowder were found at the defendant’s residence.
In the course of the house search, the defendant admitted possession of all the guns and ammunition and explosive found at his residence. He admitted that the ammunition contained in the green box was made by him and that he admitted possession of the gunpowder which was used to make the ammunition.
The 4th Count: The defendant’s workplace in San Po Kong, Kowloon was searched by the police with the following items found from a locked drawer at his seat in the company. The said drawer could be opened by a key seized from the defendant: firstly, a self-loading pistol with a magazine containing nine rounds of live ammunition in 0.357” SIG caliber which were suitable for discharge in like caliber, all in working order; and secondly, 42 rounds of ammunition, all in working order.
The defendant did not have licence for possessing the arms and ammunition charged under the 1st, 2nd and the 4th counts.
I shall now come to his background. The defendant is a person of clear record. He is 47 years of age. He has received education up to university level. At the time of his arrest, he was married with a 7-year-old daughter. He worked as an information technology and administration manager and was the main bread-earner of the family, earning around $40,000 per month.
In mitigation, counsel for the defendant, Mr Andrew Raffell, urged me to take into account the good character of the defendant, his guilty plea at the earliest opportunity and his genuine remorse.
A total of 29 mitigation letters were submitted to court to ask for leniency on his behalf, and they include a letter written by the defendant’s daughter, his former wife, his parents, relatives, colleagues, former employers, friends and a project officer who worked together with him during his remand in the Correctional Services Department. In these letters, the defendant was described as a filial son, a caring father, a helpful and responsible person who participated in various charitable events on a regular basis. Counsel submitted that it is obvious from these letters that he is a decent person who is well respected and trusted by his friends and family, and many of them are in court today to show support to the defendant.
In mitigation, counsel stressed that there was no illegal or political intent on the part of the defendant in keeping the items. Counsel said the defendant committed the offences due to his obsession with firearms and ammunition and also his obsession with making his own bullets, rather than putting the bullets and the firearms to any actual use. Counsel said the gunpowder was raw material used for making his own bullets and should be seen as part and parcel of the other offences.
Counsel also pointed out that the collection was properly and safely stored at different premises and there was no or little chance of them falling into the hands of criminals or terrorists.
Regarding the defendant’s response upon his arrest concerning the claim of self-defence, counsel explained that at that time, he was in a panic and that he said something that was not true. Actually, all along, he had no intention of using the pistol or the live ammunition in relation to the charge of the 1st count.
Counsel submitted that the defendant’s culpability lies at the lower end of the scale, and he asked this court to impose a global, overall sentence as all the offences stemmed from the defendant’s obsession with the items.
The offences involved are very serious offences, each of them carry a maximum sentence of 14 years’ imprisonment. Possession of arms and ammunition without a licence is always considered to be a very serious offence in Hong Kong as they can create grave dangers to the public. A stringent approach in sentence should be adopted to ensure that Hong Kong continues to be a safe city. An immediate custodial sentence for a substantial period should be imposed except in truly exceptional circumstances.
In the case of HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the Court of Appeal stated, according to the headnote:
“As a rule, this type of offence would attract a severe and deterrent sentence for the reason that firearms and ammunition pose a potentially grave danger to the society. In determining the appropriate sentence, the mitigating or aggravating factors include:
(a) the type of firearm and ammunition involved;
(b) whether the defendant physically carried the firearm and ammunition;
(c) whether the firearm was loaded;
(d) whether the firearm had been used;
(e) whether the defendant intended to use the firearm for illegal purposes;
(f) whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders; and
(g) 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.”
And at paragraph 19 of that case, the Court of Appeal stated:
“If the defendant had the arms on his person or on his body or carried the arms and they were loaded with live ammunition and the arms had been used, then the starting point upon conviction after trial should be 12 years’ imprisonment.”
In the case of HKSAR v Tsiang On Yan [2019] 5 HKLRD 100, Zervos JA endorsed the following comments of Woolf LCJ in R v Rehman [2006] 1 Cr App R (S) 404:
“In the case of unlicensed possession of firearms, societal protection is a paramount consideration; it is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration. It is a category of offence which in general requires a deterrent sentence.”
Woolf LCJ went on to remark that the mere possession of firearms can create dangers to the public and may result in a firearm going into circulation.
Having reviewed a number of decided cases, Zervos JA also said at paragraphs 45, 51 and 52:
“45. It seems clear that for a person in possession of a firearm with loaded ammunition or a firearm with ammunition capable of immediate use, a starting point of 12 years’ imprisonment would be appropriate.
51. It needs to be appreciated that the courts have fixed a sentence guideline of 12 years’ imprisonment where the offender is in possession of a firearm together with ammunition which is but a step away from its use.
52. A firearm and ammunition with the potential to kill or maim a person is a lethal weapon which ranks high in the level of prohibited items under this offence. A person convicted of possession of such a firearm and ammunition can normally expect a sentence after trial of 12 years’ imprisonment unless there are special features that would warrant a reduction.”
It is recognised that there are varying degrees of culpability. At the top of the scale is possession for illegal purposes, whereas possession as a hobby with no risk of the arms or ammunition being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale. Obviously, possession of a loaded firearm would call for a more severe sentence than that for possession of an unloaded firearm. The fact that a person has physically carried the arms and ammunition to a public place is also an aggravating factor which calls for more severe sentence.
Regarding the security arrangement in the storage of arms and ammunition, the Court of Appeal in the case of Secretary for Justice v Leung Kwok Chi, CAAR No. 6/2012, disagreed that the public could not have access to the arms and ammunition because they were stored in the flat because, the Court of Appeal said:
“(53) The flat was certainly accessible to friends and relatives of the respondent and the arms and ammunition could be attractive to them. A trespasser, such as a burglar, would also find the arms and ammunition in the flat very tempting.”
In the present case, given counsel’s submission that all the arms and ammunition concerned were properly and safely kept when they were in the defendant’s custody, I asked for counsel’s assistance during his submission in court, and I was referred to some photographs taken at the master bedroom of the defendant on or about the day of his arrest. And after going through those paragraphs and with the positions or locations confirmed by the defendant, it is now known that in respect of Count 1, that is the pistol loaded with live ammunition found in the rucksack he carried at a shop in Mongkok, the pistol, or the loaded pistol was being placed inside one compartment of the rucksack with the zipper fastened. There was otherwise no other locking device.
In respect of all the arms and ammunition and explosive substance found at his residence in Shatin, that is the subject matter of Counts 2 and 3, it is now confirmed by the defendant that all the explosive substances, that is the six bottles of gunpowder, they were being placed inside a wine cabinet in the master bedroom shared by him and his wife who has now separated from him. And at that time, the wine cabinet was being kept closed but without using any lock device, and there were other bottles of wine being stored inside the same wine cabinet at the same time when the gunpowders were also being stored there.
In respect of the location of the 12 rifles loaded with live ammunition and together with the other 3,000-odd rounds of live ammunition found at the master bedroom, it is now confirmed by the defendant that they were placed inside plastic boxes on a shelf in the master bedroom. Having looked at the photograph of the shelf, it is confirmed that the shelf did not have any door or walls to its perimeter and that they were open shelves, and there was no way that they could be locked with a locking device. However, according to the defence, those plastic boxes were placed at the rear part of the open shelf, away from the front with some obstacles being placed at their front so that the view of them were being blocked from other people in the premises.
As far as the four rifles also loaded with live pistols were concerned and the air gun, it is now also confirmed that they were put in respective rifle bags or rifle box inside the master bedroom, and all of them were properly locked by the use of a padlock respectively.
At the material time, the defendant was living at the premises in Shatin together with four other persons, that is, his elderly mother, his wife who shared the master bedroom with him, his 7-year-old daughter and also a domestic helper. In any event, it is the submission of counsel that despite that all these items - the loaded pistols and the loaded rifles - were being placed inside the bedroom with the live ammunitions also placed inside the bedroom, counsel submitted and it is accepted by this court that his family members did not know about the existence of those arms and ammunition and the gunpowder.
In respect of the arm, of the pistol, found in his office in San Po Kong, it is confirmed that it was kept inside a locked drawer at the seat of the defendant.
As to the reason why that all the firearms and ammunition found in this case, the firearms, no matter they were rifles or pistols, they were all loaded with live ammunition and ready to be used, counsel explained that the defendant is a person with scientific knowledge about firearms and ammunition and that he is a very good engineer. Out of his drive for perfection, he considered that the firearms were artefacts and they were not complete unless they are loaded with live rounds of ammunition, and that is the explanation given as to why all the firearms stored at home and also in the office, they were loaded with live ammunition, and also that the pistol in the rucksack when he went to Mongkok was also loaded with live ammunition.
As to the reason why he was carrying the pistol in his rucksack, counsel explained that he was indeed on that day trying to return to the office to swap the pistol with another one, and that was why he was carrying the pistol on his person in a public place.
Having considered all the factors, especially those set out in the case of Chan Chi Fun, I consider that there are mitigating factors to the benefit and the advantage of the defendant which I will cite out now. I accept that he is a man of good character. In addition to clear record, he is also a person with some positive good character, including participation in charitable activities.
I also accept that he pleads to all the offences as early as possible, at the earliest opportunity, and I also accept that he has no intention to use any of the firearms or the ammunition for any illegal or unlawful purposes. I also accept that at the time when he was intercepted by police, when he told the police that he possessed the pistol in the rucksack for self-defence, it was something uttered maybe out of a moment of panic without meaning that he intended to use that pistol for any violent or criminal purpose. I also accept that his colleagues and family members were not aware of the existence of the loaded firearms that he placed at home and in the office.
In respect of the storage of the firearms and ammunition at his home and in office, I accept that the loaded pistol was properly locked in the drawer in the office, but some of the firearm and ammunition at home were not properly locked, thereby exposing, firstly, some of his family members to the risk of being harmed by accident because the loaded firearms, they were very dangerous weapons and, secondly, of course as the Court of Appeal has stated in other cases that there is also a latent risk, the possibility of the arms and ammunition falling into the hands of undesirable people, and such a risk does exist especially with those firearms and ammunition not being locked in the premises.
There is also an aggravating feature in respect of Count No. 1 that the defendant had physically carried a loaded pistol to a public place in Mongkok at the time of his interception or at the time of the offence.
The defendant was in possession of a substantial quantity of arms and ammunition in this case. In respect of Count No. 3, I accept that there is no tariff for possession of an explosive substance and each case has to be decided on its own facts. In my judgment, there exists the aggravating feature of a risk that the firearms and ammunition may fall into the wrong hands such as when the place is burgled or becomes unlawfully used, and that such a risk is very high especially in respect of those found at his home premises. That is the subject matter of Count No. 2.
In all the circumstances, having regard to the authorities that I have cited and all the mitigating factors and the aggravating features, I am of the view that the following starting points are appropriate for this case.
In respect of Count No. 1, I will adopt a starting point of 8 years’ imprisonment. The defendant has pleaded guilty at his earliest opportunity and he is entitled to a full one-third discount. So in respect of Count No. 1, he is sentenced to a total of 5 years and 4 months’ imprisonment.
In respect of Count No. 2, I adopt a starting point of 9½ years’ imprisonment. Taking into account his early plea, he is entitled to a full one-third discount and so the sentence is reduced to that of 6 years and 4 months’ imprisonment for Count 2.
For Count No. 3, I adopt a starting point of 2 years’ imprisonment which, after the one-third reduction, is reduced to 16 months.
For Count 4, I adopt a starting point of 6 years’ imprisonment, and giving him the full one-third discount, the sentence is reduced to that of 4 years.
I accept that all the firearms and ammunition and explosive substances relating to Counts 2, 3 and 4, they arose out of the same or similar issue, that is, for storage. As such, I order that the sentences in respect of Counts 2, 3 and 4 to be served concurrently to each other, thereby the total sentence for Counts 2, 3 and 4 is one of 6 years and 4 months.
In respect of Count No. 1, the offence was committed in relation to the possession of a loaded pistol at a public place, and he had actually carried the loaded pistol to that public place on the day of the offence. Having considered all the circumstances, I consider that 8 months of the sentence in Count 1 should be served consecutively to the sentences in the other counts, thereby making the total sentence for all four counts as one of 7 years, and the defendant is sentenced to 7 years’ imprisonment in respect of all the offences.