Chung Ho-hin, the 2nd defendant, D2, faced three charges. He was charged with one count of possession of ammunition without a licence, that is the 3rd charge, and one count of possession of arm without licence, 4th charge, both contrary to section 13(1) and (2) of FAO. In addition, he was charged with one count of giving possession of arm to unlicensed person, that is the 5th charge, contrary to section 15(1) of FAO.
Lam Ka-kan, D3, faced one count of possession of arm without a licence, that is the 6th charge, contrary to section 13(1) and (2) of FAO.
All three defendants pleaded guilty before a magistrate and were all committed to be sentenced in the Court of First Instance of the High Court.
The Summary of Facts
On 26 March 2020, police conducted a sweeping at Dragon’s Trail near Cape Collinson area in response to an anonymous report of suspicious activities inside a hut. An abandoned stone hut was located later that day at the area (I will refer to it as the hut from now on). All three defendants were present in the living room of the hut.
After a brief observation, police officers raided the hut. All three defendants were arrested inside and upon search on their persons, no contrabands were found.
The following are the facts relevant to D1. A search was conducted in the hut and in a luggage without a lock placed in the living room of the hut, the following items were found.
Ammunition that is the subject of the 1st charge
Live ammunition
One round of live ammunition in .22” LR calibre. It is suitable for discharge in like calibre firearms such as Walther PPK self-loading pistol.
Bullets and Fired Bullets
There are 249 bullets in 9 millimetre calibre and 9 fired bullets in 9 millimetre calibre.
Fired Cartridge Cases Inserted with a Bullet
There were ten fired cartridge cases in 5.56 x 45 millimetre calibre, each inserted with a bullet, and three fired cartridge cases in 9 x 19 millimetre calibre, each inserted with a bullet.
Fired Cartridge Cases, Cartridge Cases without Primers and Damaged Cartridge Cases without Primers
There were two fired cartridge cases in 5.56 x 45 millimetre calibre; 372 fired cartridge cases in 9 x 19 millimetre calibre; 104 cartridges cases without primers in 9 x 19 millimetre calibre; 8 damaged cartridge cases without primers in 9 x 19 millimetre calibre; 252 fired cartridge cases in .22” LR calibre; one fired cartridge case in .38 Super Auto calibre; one fired cartridge case in .38 Auto calibre.
Fired Blank Cartridges
16 fired blank cartridges in .22” LR calibre. Blank cartridge is loaded without a projectile and is designed to produce a loud noise when being discharged.
All the ammunitions listed above except item 1, that is the one round of live ammunition in .22” LR calibre, were not suitable for firing, discharge or use in the state in which they were found or seized. Had the fired or discharged ammunition been live ones, they would have been suitable for discharge in like calibre firearms.
Other Items
There is one package containing four packs of powder named Prime-All. It is not an explosive. It is a precursor chemical commercially designed to be mixed and that would then produce explosive for ammunition primer.
In some bottles and boxes, all are not being locked, placed in the living room of the hut, the following items were found and those are explosive substances subject of the 2nd charge:
Eight firecrackers, which are manufactured fireworks. They are deflagrating explosives capable of producing pyrotechnic effect, for example light, sound and smoke, upon ignition. The heat would be largely restricted to close proximity at approximately 1-metre radius, which is capable of setting property on fire or burn injury to person. It may also cause life-changing injury to a person if they were held tight or close to vulnerable area.
23 packs of toy-gun caps, 5 packs of ball-type toy-gun caps and 46 party poppers, which are manufactured fireworks. They are namely Armstrong’s mixture, which is one type of primary explosive that is sensitive and capable of producing practical explosion. They are detonating explosive that upon initiation would produce very small scale of explosion. Since the explosive were separated in different plastic chambers and their sensitive nature, it would be very difficult to extract the explosive in order to create a collective effect or cause a bigger scale of explosion. Yet, if the explosive is somehow extracted, the amount seized is capable of causing serious injury, or even death, to person in close proximity.
One plastic bottle containing green solid mixture containing nitrocellulose and zirconium. Nitrocellulose is one type of primary explosive, which is sensitive and capable of producing practical explosion upon ignition. The substances as a whole was tested and would only produce pyrotechnic effect that is heat and light, upon ignition, which would cause damage to property at approximately 1-metre radius, and capable of setting property on fire or burn injury to person. It may also cause life-changing injury to person if they were held tight or close to vulnerable area.
27 large packets of commercial welding powder and 41 small packets of commercial welding powder, which are commercial exothermal welding powder separated into different bags for safe storage and transportation. Upon simple physical mixing, that is one large and one small pack per set, they would become capable of producing pyrotechnic effect. When being mixed in proportion and ignited, they would burn and produce very high temperature of heat. The heat effect would be largely restricted to close proximity up to 2 to 4 metres radius, that is presuming all powder seized are used all together, which would be capable of causing serious burn injury to any person and setting property on fire in close proximity.
Under caution at the scene and in the subsequent video-recorded interview, D1 remained silent. And there was a house search conducted at D1’s home. A house search was conducted subsequently with a search warrant. Among other things, the following items were found. Under D1’s bed:
Six Army Field Manuals which titled “Grenades and Pyrotechnics”, “Guerrilla Warfare and Special Forces Operations”, “Armed Forces Censorship (Army)”, “Miscellaneous Chemical Munitions”, and “Boobytraps” respectively; six sets of illustration of firearms and ammunition, containing the name of the parts or components but not data as to the dimensions of the respective firearm or ammunition; one set of notes, with contents of DIY homemade gun and crossbow; laboratory tools, including test tubes and funnels.
Those were the facts relating to D1.
Now, the following are facts relating or relevant to D2 and D3.
The 3rd charge
In a house search conducted at D2’s home at the flat in Fullview Garden, Siu Sai Wan, the following items were found inside D2’s bedroom:
Ammunition that is subject of the 3rd charge
A fired shotgun cartridge in 12 Gauge calibre. It is not suitable for discharge in the state as it was seized. Ammunition in 12 Gauge calibre is suitable for discharge in like calibre shotguns such as Remington Model 870 shotgun.
D2 admitted that he was knowingly in possession of the ammunition charged under the 3rd charge and he did not have the licence for possessing the said ammunition.
4th charge
In a video-recorded interview, D2 under caution stated inter alia that he owned a modified air gun which he had kept at his home at Fullview Garden. No air gun was found during the house search at D2’s home.
On 28 March 2020, a police report was made by the security guard of Fullview Garden that a bag containing what appeared to be a gun was found on the flower bed on the ground floor of Fullview Garden.
Upon examination, the object was found to be a spring powered air gun designated to discharge .22” calibre pellets. The said air gun was marked with “GAMO”, “CFX Royal” and this set of number, “04-1C-505134-14”.
Functional examination and test shooting showed that the said air gun was capable of discharging .22” calibre pellet with muzzle energy at 15.75 joules, which is within the definition of ‘arm’ under section 2 of the FAO.
Government Laboratory found a matching result of D2’s DNA on the handle of the said air gun. D2 was further cautioned after his DNA was found on the said air gun. D2 remained silent under caution.
D2 admitted in court that he was knowingly in possession of the arm charged under the 4th charge and he did not have the licence for possessing of the said arm.
5th charge
In the video-recorded interview, D2 under caution stated, inter alia, among other things, that he had purchased an air gun via the internet and had modified the muzzle power of the said air gun from 2 joules to about 30 joules on his own. He had then given the said modified air gun to D3 about a month prior to his arrest.
And D2 admitted that he gave possession to D3, or knowingly permitted or allowed D3 to obtain possession, the arm charged under the 6th charge, and he knew D3 was an unlicensed person.
6th charge
In a house search conducted at D3’s home at Metropole Building in King’s Road, North Point, the following items were found inside D3’s bedroom. A spring powered air gun designated to discharge .22” calibre pellets. The said air gun was marked with “GAMO”, “G-MAGNUM 1250” and “04-1C-803406-19”.
Functional examination and test shooting showed that the said air gun was capable of discharging .22” calibre pellet with muzzle energy at 34.10 joules, which is within the definition of ‘arm’ under section 2 of the FAO.
In the video-recorded interview, D3 under caution stated, inter alia, that the said air gun seized from his residence belonged to him. D2 purchased and modified the said air gun for him and he had paid D2 about $4,000 for it.
D3 admitted that he was knowingly in possession of the arm charged under the 6th charge and he did not have the licence for possessing the said arm.
Background and Mitigation, D1
According to the antecedents statement, D1 was born in 1999 and is now 23 years of age. He has a clear record. He completed Form 6 and was studying horticultural design, year 3, at the Technological and Higher Education Institute. D1 is single and prior to his arrest he was living with his parents.
At the outset, Mr Christopher Grounds, counsel for D1, stressed the fact that D1 had been detained since 26 (March?) of 2020. By the time of the sentence, D1 had been detained for 2 years and 9 months.
On the basis that D1 is given a one-third discount and remission for good behaviour, 2 years and 9 months would mean a starting point of around 6 years. Since D1 gave evidence in a murder trial, if D1 is given a 50 per cent discount as submitted, that would mean a starting point of over 8 years. Mr Grounds stressed that both these calculations do not take into account D1’s youth and positive good character.
Mr Grounds provided this Court with more background information in relation to D1. When D1 was still in school, his extracurricular activities included Taekwondo and archery. He excelled in archery. He developed an interest to work as an arborist and was working for a degree in horticultural and landscape management at the Technological and Higher Education Institute. He was studying year 3 at the time of arrest.
D1 had a clear record prior to the present charges, he has completed training in first aid, mountain craft, rock climbing, mountain search and rescue activities. D1 was dedicated and served in the community and helping others in need. D1 was a war gamer. He gave evidence in a murder trial before me against his fellow war gaming participants. I will say more about this later on.
D1 had been fascinated with military items since young. The military matters found under his bed were collectible items. Mr Grounds submitted that it was D1’s fascination with military matters which may explain why D1 was in possession of so many spent and discharged ammunition.
In respect of the 1st charge, Mr Grounds submitted there was no firearm involved. Of the ammunition, only one was a live one, all others were spent, used or discharged. There is nothing to show how easy or difficult to reconstitute any of the discharged ammunition into live ones or whether that was even possible. Mr Grounds stressed that D1 maintained that the live ammunition was found along with many of the spent ones at a shooting range in Hong Kong. D1 had no intention or desire to reconstitute any of the spent ones into live ammunition.
Mr Grounds referred this Court to a number of authorities, including the case of HKSAR v Chan Chi Fun, R v Man Hung Pui and HKSAR v Wong Kin Wai. With reference to the factors mentioned in Chan Chi Fun, Mr Grounds submitted the following:
(1) All but one of the ammunition was either spent or discharged.
(2) D1 was not carrying the ammunition at the time.
(3) D1 was a war gamer and he possessed the ammunition as a collector with no intention of using the ammunition for any unlawful purposes.
(4) While the ammunition was not under lock, they were inside a messy hut in a remote area, the risk of these ammunition falling into the wrong hands is not great.
(5) Even if they did fall into the wrong hands, say for the live one, the ammunition would have to be reconstituted to make it usable.
(6) D1 had a clear record.
(7) D1 was of relative young age at the time of the offence.
(8) D1 rendered assistance to the authorities by giving evidence in the murder trial for the prosecution.
Mr Grounds submitted that the starting point should be somewhere near the lower or lowest end of the range of 3 to 6 years.
As for the last item of rendering assistance to the authority, Mr Grounds relied on the Court of Final Appeal case of Z v HKSAR which held that the policy of accepting assistance to authority as mitigation could relate to crimes that are unconnected with the one with which defendant is being sentenced and submitted that such pre-arrest assistance should be taken into account.
Alternatively, Mr Grounds submitted that acting as a witness for the prosecution in a murder trial together with his clear record, the court can give D1 an appropriate deduction of sentence on his positive good character.
In relation to the 2nd charge, Mr Grounds stressed that D1 was charged with possession of explosive substances, not the more serious charge such as making or keeping explosives with the intent to endanger life. Mr Grounds submitted that the explosive charge is of low level culpability. The Summary of Facts indicate there might be difficulties in extracting some of the explosive or relevant substance. Any heat, ignition or explosion would have to be in the immediate proximity of a person rendering serious life-endangering injuries remote.
Mr Grounds also submitted that many of the items found are sold in Hong Kong. If people were minded to make explosives, they could easily access sources to obtain welding powder, toy-gun caps, firecrackers and so on. These people would not be in need of a chance finding of these seized materials.
Mr Grounds referred to the case of HKSAR v Chan Yiu Shing and HKSAR v Li Chung Man, Alfred and submitted that an appropriate starting point for the 2nd charge should fall within 2 to 3 years. Mr Grounds further submitted that the possession of the explosive substances was committed in the course of a single transaction with the 1st count so that both sentences should run concurrently.
Finally, Mr Grounds submitted that D1 had effectively served a total sentence of which the starting point would be slightly above 6 years, that is with the one-third discount and good behaviour remission or slightly above 8 years, that is with the 50 per cent discount and good behaviour remission. Mr Grounds urged this Court to impose a sentence which would result in the immediate release of D1.
D1 wrote to this Court expressing his deep regret in having committed the present offences which affected not only his family but also his friends and other people in the community. He claimed that during his incarceration, he did not waste time and took courses to enrich himself. He is still interested to work as an arborist in the future and asked for leniency.
D1’s parent’s, his aunt, his former class teacher, his former biology teacher, his training instructor of the Civil Aid Service, a registered arborist in Hong Kong to whom D1 had worked as an assistant and a volunteer worker who had visited D1 after the latter was remanded and written to me.
D1 was described as a well-behaved child, a filial son, an honest and kind-hearted person who was willing to render assistance to others and are diligent worker. They all asked leniency on behalf of D1, believing that D1 committed the offence due to ignorance. I was also provided with copies of D1’s school reports, transcript of studies and various certificates and awards in support.
D2
According to the antecedents statement, D2 was born in June 1996 and is a single man with no previous criminal conviction. He had completed Form 6 education and has worked as a part-time delivery worker since graduation. Prior to his arrest, D2 was living with his parents and an older brother. Mr Michael Arthur, counsel for D2, submitted that at the time of the offence D2 was a 24-year-old student with utmost good character and strong family support. D2 took a training course to be a plumber and took an exam on 19 November this year. I was informed that D2 had passed the exam so he looks forward to working as a plumber.
Mr Arthur submitted D2 is a young man fascinated with guns, which leads to the present offence. Mr Arthur stressed that the short gun cartridge in Charge 3 was a spent one which was given to him by someone during the war game.
As for Charge 4, Mr Arthur referred to D2’s admission in his letter to the Court that he had hidden the air gun in the flowerbed so as not to let his family know that he had such an item and that D2 would bring it home to play with it when no one was around. As to why D2 did not tell the police the whereabouts of that air gun, Mr Arthur after taking instructions submitted that D2 was panicking at the time and could not recall where he had placed it.
Mr Arthur accepted that the air gun could have fallen into the hands of criminals but given D2’s good character, such a possibility was remote. Mr Arthur submitted that D2 did not harbour any sinister motive in relation to this offence.
As for Charge 5, Mr Arthur submitted that D2 bought the air gun on the internet and gave it as a gift to his good friend, D3. D2 in his letter to the Court confessed that even though he had no unlawful intention when he gifted the air gun to D3, he could have easily and accidentally put himself and others to harm.
Regarding the appropriate sentence, Mr Arthur submitted that a starting point much less than 6 months would be appropriate for Charge 3, citing the case of HKSAR v Yu Chun Lung. As for Charge 4, with reference to R v Leung Shiu Lun and HKSAR v Lam Fu Kin, Mr Arthur submitted a starting point no more than 15 months would be appropriate. For Charge 5, Mr Arthur submitted that on the facts of the case a starting point no more than 12 months should be imposed.
Mr Arthur stressed the fact that D2 was in custody for 691 days before he was released on bail on 14 February 2022. D2 had in fact already served the best part of 2 years of imprisonment. Mr Arthur urged this Court not to return D2 to gaol for a further period of incarceration.
D2 wrote to this Court expressing his deep regret and for having committed the present offences. D2 claimed to have interest in collecting air guns, treating them as artistic items without any intention of harming anyone or damaging any properties. He stressed that he had learned a lesson and will think before he act in the future to ensure he will not commit any offence again.
D2’s parents, his neighbour, his kung fu master and his classmates wrote to this Court, mitigating on D2’s behalf. The picture painted was that D2 was a filial son and a kind-hearted person who would render assistance to those in need, even strangers. They all ask for leniency on behalf of D2.
I was also provided with copies of D2’s academic reports at school and various certificates and commendation for his participation in different sporting events and doing voluntary work for the society.
D3
According to the antecedent statement, D3 was born in January 1997, so he is now 25 years of age. He is a single man with no criminal conviction. He has completed a film studies course at the Hong Kong Metropolitan University in 2019 and had worked at the Ocean Park, earning $10,000 per month. Prior to his arrest, D3 was living with his parents. D3 has an elder brother who is a teacher.
Mr Chan Siu-ming, counsel for D3, provided more background information on D3. D3’s father is a chef and his mother is a housewife. Having completed the film studies, D3 will obtain his degree after attending an additional English language course. D3 wishes to wait for the conclusion of this case before he enrolled himself to attend the said course. D3 is now working in a café, earning $10,000 a month.
Mr Chan referred to the factors to be considered for the possession of arm without a licence set out in the case of Chan Chi Fun and submitted that the air gun in question is of a less serious nature when compared with a rifle or a pistol. D3 was not physically carrying the air rifle which Mr Chan submitted was properly stored or kept inside D3’s wardrobe, therefore not accessible by other offenders.
Mr Chan also referred to the case of R v Leung Shiu Lun, that is the possession of four air rifles and pistols and Secretary for Justice v Leung Kwok Chi, that is the possession of large number of firearms and ammunitions for my consideration.
Mr Chan urged this Court to pass a sentence as lenient as possible, bearing in mind D3’s possession of the air rifle was no more than his desire to have a collectible for fun. The minimal risk for the said rifle to be used for any illegal purpose, D3’s good character, good education, and D3’s eagerness to make contribution by working in the society.
D3 wrote to this Court expressing his deep regret for having committed the present offence due to his ignorance and curiosity. D3 claimed to have learned a lesson and promised to be a law-abiding citizen in the future.
D3’s former school teacher and general manager of the café D3 is currently working at have also written to this Court asking for leniency. D3 was mainly described as kind, well-behaved, diligent and helpful young man who had committed the present offence due to his negligence or ignorance.
Now, the following is my consideration for sentence. Possession of arms and ammunition without a licence is a serious offence. A person convicted of this offence on indictment is liable to a fine of $100,000 and imprisonment for 14 years. Possession of explosive substances is also a serious offence. A person convicted of this offence on indictment is liable to imprisonment also for 14 years.
I am grateful to all defence counsel for bringing my attention to various judgments concerning arms and ammunition. I should add the prosecution as well because it is in the bundle and also to Mr Grounds for those involving explosive substances.
In the case of Chan Chi Fun, the Court of Appeal stated -- I have just taken the rest from the headnote:
“As a rule, this type of offence would attract a severe and deterrent sentence, for the reason that firearms and ammunition posed a potentially grave danger to the society. In determining the appropriate sentence, the mitigating or aggravating factors included:
(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 was properly stored or 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 offence and the defendant’s background.”
These relevant factors were adopted in the case of Secretary for Justice v Yan Shen and the Court of Appeal in that case stated that:
“...societal protection is the paramount consideration in order to maintain the safety of Hong Kong and immediate custodial sentence, often for a substantial term, should be imposed except in truly exceptional circumstances.”
The Court of Appeal in the case of Secretary for Justice v Leung Kwok Chi also referred to the above two cases and adopted the same.
First of all, I accept that the possession of ammunition is usually less serious than the possession of arms (see the case of Man Hung Pui). I also accept that the possession of an air gun or air rifle is less serious than the possession of unlicensed firearms such as revolvers and pistols (see the case of Leung Shiu Lun).
In the case of Man Hung Pui, it was a 17-year-old appellant with previous convictions for robbery, theft and possession of offensive weapon and he was found in possession of six rounds of live 7.62 millimetre calibre ammunition. The trial judge adopted a starting point of “at least 7 years” and the Court of Appeal ruled that the appropriate starting point was 4 years. So I take that as an example.
Now, first of all, D1, 1st charge. In the present case, D1 was in possession of one live ammunition and a large number, I count there was 1,027 of spent or discharged ammunition. So having considered the circumstances of the case, I accept the submission made by Mr Grounds on behalf of D1 in relation to the factors identified in Chan Chi Fun. I accept that D1 was a person of relative young age at the time of the offence and of positively good character. I am of the view that a starting point of 3½ years is appropriate for the 1st charge. With a one-third discount for plea tendered at the earliest available opportunity, the sentence would be 28 months, so 2 years and 4 months.
And it is true that D1 gave evidence as a prosecution witness in the murder trial before me. However, I do not accept that such a course of action would entitle D1 to be treated on the same footing as an informer who had rendered assistance to the authority prior to committing the offence for which he was to be sentenced. I agree that all the background information as well as D1’s act of giving evidence before me entitle him to a slight further discount. I will give him a further 2 months discount to reflect that. So the resulting sentence is 2 years 2 months.
2nd charge
For the 2nd charge, the amount of explosive substances cannot be said to be small. Eight firecrackers, 23 packs of toy gun caps, five packets of ball-type toy gun caps, 46 party poppers, one plastic bottle containing nitrocellulose and zirconium, 27 large packets of commercial welding powder and 41 small packets of commercial welding powder.
Taking on board what Mr Grounds has submitted on D1’s behalf, I am of the view that a starting point of 3½ years’ imprisonment is also appropriate for this offence. With a one-third discount, the sentence would be 28 months and I will again give D1 an extra deduction of 2 months. So the sentence is therefore 2 years and 2 months.
The Question of Totality
While the offending items were found inside the hut on the same day, as the nature of the explosive substances is very different from ammunition, I do not accept that both sentences should run totally concurrently. Having considered the totality principle, I am of the view that a total sentence of 3 years would properly reflect the criminality involved.
D1 had been in custody for just over 2 years and 9 months. With a sentence of 3 years, D1 would have to serve another 3 months or so in prison. If D1 had been sent to gaol he would have a further discount of one-third if he had been of good behaviour. Although it is very difficult for me to gauge because D1 was not in gaol, he was in the remand centre. So having considered all the circumstances, I am satisfied that this is proper for me to exercise my discretion to further reduce the sentence to one of 2 years and 8 months so that D1 can be immediately released.
So for the 1st charge, D1 is sentenced to 2 years and 2 months’ imprisonment. 2nd charge, D1 is also sentenced to 2 years and 2 months’ imprisonment. 6 months of the 2nd charge is to run consecutively to the 2 years and 2 months imposed on the 1st charge, making a total of 2 years and 8 months.
D2, 3rd charge
In the present case, the single shotgun cartridge possessed by D2, a person of clear record and positively good character was spent, so it did not pose any harm to the society. I accept that D2 received it as a decorative gift and there is no evidence that he possessed it for any illegal purpose. I am of the view that a starting point of 6 months is appropriate for Charge 3.
Charge 4 and 5th charge
In respect of Charge 4, the air gun in question was a spring-powered one capable of discharging .22 calibre pellets with muzzle energy of 15.75 joules. It was put inside a bag and placed on the flowerbed of a residential complex. Needless to say, there was a risk that the air gun might have fallen into the hands of criminals and put to illegal use.
I would add here that even though D2 admitted to the police that he possessed the air gun, when the police failed to locate any inside D2’s home, D2 did not own up that the gun was actually hidden in the flowerbed. When D2 was cautioned by the police and after the air gun was found, he remained silent. Now I am not suggesting for one moment that D2 was obliged to answer when questioned about the air gun under caution. However, his silence under caution does appear to run contrary to his early admission to the police that there was a gun at his home when the police did not find any.
Now I was given to understand that D2 was in a panic at the time and could not recall where he had placed the gun. In any event, I do bear in mind the fact that D2 pleaded guilty at the earliest available opportunity and is therefore entitled to full discount even though he made no admission when cautioned after the gun was found.
Although the mechanism was spring powered, I cannot ignore the fact that the muzzle energy was at 15.75 joules. Now, I accept that D2 was a gun enthusiast and he did not have any illegal intention in possessing the gun. Having considered all the circumstances, in particular the fact that the air gun was left in the open, at a place easily found by others and the muzzle energy of 15.75 was more than seven times the statutory limit of 2 joules, I am of the view that a starting point of 18 months is appropriate.
I take a more serious view of Charge 5, the 5th charge. The air gun involved was a spring powered one, but the muzzle energy was 34.10 joules, 17 times more than the statutory limit of 2 joules which was modified by D2. Now, according to D2, he passed the air gun to D3 as a gift. D3 however said in the video-recorded interview that he had paid D2 $4,000 to modify the air gun. So it is not a gift.
Now, in any event it was clarified later that the gun was indeed given by D2 to D3 as a gift and what D2 said in the video-recorded interview was incorrect and that he was at the time too frightened and said something wrong.
Anyways, the maximum sentence for this offence is 5 years’ imprisonment upon conviction on indictment. The circumstances of this case warrant a starting point of 2 years in my view.
Now, D2 pleaded guilty to all three charges at the earliest available opportunity and is entitled to a full one-third discount. So with the discount the sentence for the three charges are respectively 4 months as for the 3rd charge, 12 months as for the 4th charge, and 16 months for the 5th charge.
Having considered the totality principle, I am of the view that an overall sentence of 2 years will properly reflect D2’s criminality.
D2 had been in custody for 691 days so just 39 days short of 2 years. With good behaviour, D2 would have been given another one-third discount for the 2 year sentence, though as in the case of D1, it is rather difficult to gauge at this point because D2 was remanded at the Lai Chi Kok Reception Centre, not actually in gaol.
I do not think any useful purpose would be served by sending D2 back to gaol to serve just a month or so of the sentence, particularly in view of the positively good character he possessed prior to the commission of the present offence and the fact that he is now qualified to work as a plumber. To ensure that does not happen, I would adjust the sentence to one of 22 months so that D2 will be immediately released.
So the sentence is as follows. Charge 3, 4 months; Charge 4, 12 months, concurrent with Charge 3; Charge 5, 16 months, 10 months of which to run consecutively to Charge 4 but concurrent with Charge 3 so making a total of 22 months.
D3, the 6th charge
I also accept that D3 did not have any illegal purpose for possessing the air gun. I cannot however ignore the fact that the air gun was modified to a rather powerful muzzle energy at 34.10 joules. While the air gun was kept inside D3’s wardrobe, I do not agree that it was properly stored. It was not under lock and a burglar could have gained access to it. Having considered all the circumstances and bearing in mind the defendant’s good character, I am of the view that a starting point of 2 years is appropriate.
D3 pleaded guilty at the earliest available opportunity and is entitled to the full one-third discount. With the discount the sentence is one of 16 months.
D3 was in custody since 26 March 2020 and was released on bail on 14 February 2022 so he was in custody for a period of 691 days which is longer than the 16 months imposed. But of course he was kept in the remand centre instead of a gaol. So for Charge 6 or 6th charge, D3 is sentenced to 16 months’ imprisonment.