HKSAR v. Chan Lap Ming, Castor

CACC 32/2022

[2023] HKCA 100

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2022

(ON APPEAL FROM HCCC NO 142 OF 2021)

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Before:  Hon Macrae VP in Court

Date of Hearing: 18 January 2023

Date of Judgment:  18 January 2023

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J U D G M E N T

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1.On 29 June 2021, at Eastern Magistrates’ Court, the applicant pleaded guilty to a single charge of Possession of arms and ammunition, namely a pistol, 390 rounds of ammunition of 9 x 19 mm calibre and 4 magazines, without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (“the Ordinance”). He was duly committed to the High Court for sentence, where he confirmed his plea. On 31 January 2022, he was sentenced by D’Almada Remedios J (“the judge”) to 8 years’ imprisonment.

2.By his Form XI filed on 18 February 2022, the applicant applied for leave to appeal against his sentence; and perfected grounds of appeal have since been filed by his counsel on 28 July 2022.

Facts admitted by the applicant 

3.In the morning of 9 June 2020, the applicant was intercepted by police officers at an address in Hung Shui Kiu, Yuen Long where he lived with his parents.  Three mobile telephones, two Octopus cards and $2,260 in cash was found on his person.  There followed a search of his home, during which a locked safe was found in his bedroom.  The combination lock was however broken; the safe was opened with a key seized from a drawer near a computer desk. 

4.In the safe were the following items:

(a)  One pistol, which was functional and capable of discharging 9 x 19 mm calibre ammunition (“the pistol”), with a target pointer;

(b)  9 boxes containing 390 rounds of ammunition^[1], suitable for discharge from the pistol or a similar calibre firearm;

(c)  4 magazines, suitable for use in the pistol and designed to store 9 x19 mm calibre ammunition.

5.Also found in the drawer were various items connected with arms and ammunition, including, inter alia:

(a)  2 red-coloured boxes each containing a pistol stand^[2];

(b)  3 magazine plates^[3];

(c)  A packet of gun grips^[4];

(d)  A set of “Tacrack” parts^[5] containing a back plate for a pistol slide;

(e)  40 plastic bullets (not capable of being discharged)^[6];

(f)  Some maintenance and cleaning tools for guns^[7];

(g)  A flyer in relation to “Sportsman’s Den” (where firearms and ammunition could be purchased)^[8];

(h)  3 receipts and 16 packaging materials relating to gun parts or components^[9].

6.On the computer desk, were further discovered, inter alia, a Certificate of Completion awarded by “Double Tap” (a shooting Club) to the applicant for successfully completing a shooting course on 21 May 2020; and a manual entitled “Build Your Own Semi-Auto Handgun”.

7.The Summary of Facts stated that the applicant possessed all the items at [4] supra without a licence^[10].

Mitigation

8.The applicant was 39 years of age with a clear record.  Prior to sentencing, he had worked as a Vice-President (Corporate Specialist / MPF Manager) of HSBC, earning a monthly salary of $36,000^[11]. A total of 14 letters of mitigation (none of which had been written by the applicant himself) were submitted in order to establish his good character. One of the letters was written by his mother, the relevant part of which stated:

“Castor is bright and has many hobbies since his formative years. He loves books, collecting old coins, old stamps, Lego bricks, model fire engines, and air pistol.”

9.It was submitted on his behalf that the pistol was not loaded, the ammunition was not used and he still kept it in its original packaging^[12]. It was also claimed that the applicant was a gun enthusiast^[13]. 

10.At the hearing on 6 December 2021, the judge was concerned with the inferences to be drawn from the agreed fact that various articles including gun parts (“the uncharged articles”) were seized from the applicant’s home.  Accordingly, she required further information to be furnished by the parties and, consequently, adjourned the hearing to 31 January 2022.

11.On 29 December 2021, the prosecution filed two further documents to supplement the Summary of Facts, namely a photograph album depicting the uncharged articles and an explanatory note prepared by a firearms examiner.  It was clear that each red-coloured box (referred to at [5](a) supra) was in fact a pistol frame kit, which itself contained a plastic frame, four pieces of metal parts to be installed on the frame, a drill jig and a set of drill bits.

12.On 21 January 2022, the defence filed a mitigation bundle^[14] consisting of, inter alia, a table of descriptions of the uncharged articles and a copy of the manual “Build Your Own Semi-Auto Handgun”.  It was not disputed that the uncharged articles were purchased by the applicant^[15].

13.In respect of the two pistol frame kits, it was accepted that, once assembled with the proper parts, the pistol frames could potentially form further guns^[16]. That said, it was submitted, on the applicant’s instructions, that^[17]:

“[T]hey were to be used for spare parts if and so required for the real gun. He would have taken it from the two replica parts and put it into the new gun if so required. It wasn’t to be used for a second or a third gun.”

14.It was accepted by the applicant that he bought the gun parts separately and resembled the gun according to the instructions provided in the manual “Build Your Own Semi-Auto Handgun”^[18].  Without prejudice to its position at the previous hearing, the defence submitted that the applicant had become interested in air pistols at 7 or 8 years of age and had collected air pistol magazines ever since^[19].

Sentencing

15.In sentencing the applicant, the judge referred to HKSAR v Tsiang On Yan [2019] 5 HKLRD and HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, from which she identified a number of aggravating factors in the present case.

16.As for the claim that the applicant had long been a gun enthusiast, the judge concluded^[20]:

“I can see no evidence suggestive of the defendant’s interest in guns or being an enthusiast from an early age. There are no air pistol magazines found by the police and no air pistols found or seized. Everything that was seized in relation to guns was stated in the Summary of Facts, at paragraphs 3, 4 and 5. The receipts were dated April or May 2020. If what the mother suggests that the defendant was a gun enthusiast since the age of seven, his interest, as I can see, if any, did not manifest itself until sometime late in May 2020.

As I mentioned, there was no air pistol magazines found.  There were no air pistols. All the matters related in paragraph 4 found were in relation to real firearms.  If it was that the defendant’s interest dated back to when he was a young boy, it certainly remained dormant until recent or close to the time of the offence, June 2020.  That means it remained dormant for about 31 years. I am of the view that the defendant’s interest in real firearms and ammunition only came about sometime in or about 2020.  I reject the fact the defendant was a gun enthusiast from an early age.”

17.In respect of the number of firearms of which the applicant was in possession, the judge noted that^[21]:

“The defendant had a manual to assemble a genuine gun, ‘Build Your Own Semi-Automatic Manual’ and also had a pamphlet or flyer from Sportsman’s Den on where to buy guns and ammunition which were available for purchase. Mr Chau, in his submissions, said the manual basically guides the reader through the various processes of assembling one’s own handgun. This was the method adopted by the defendant. Mr Chau said it must be worth remembering that the defendant bought the parts for the gun separately. A gun was then assembled piecemeal by the defendant.

Mr Chau said the two frame kits were to be used as spare parts. I wholly reject that submission that they were to be spare parts. It is clear that these frame kits were potentially to be used to be assembled as another or two other real firearms if the defendant had the relevant parts.  Why would the defendant need spare parts if this gun was not intended to be used?”

18.Of the fact that various gun parts were purchased by the applicant, the judge said^[22]:

“I further take the view the defendant deliberately imported the parts of a gun to assemble himself to avoid detection by the authorities. This was a well-planned scheme for him to possess a firearm. I consider the importation of the parts an aggravating factor.”

19.On the issue of whether the arms and ammunition were accessible to others, the judge considered that^[23]:

“… the pistol and the 390 bullets were together and clearly ready to be used. I accept there was no real latent risk that the pistol and the bullets would be accessible to others as it was kept in a safe in the defendant’s bedroom. However, the combination lock of the safe was broken and it could be opened with a key which was kept in a drawer in the defendant’s bedroom that was not locked.

There was a possibility that they could be accessible to others, for example, if his home were to be burgled, but I do not consider it very high.  I still do not consider this to be a mitigating factor as the hiding of the pistol with a significant amount of bullets together reveals that the defendant armed himself with a firearm in working condition and with ammunition available for its use.”

20.The judge concluded^[24]:

“Given the circumstances of how the defendant imported the parts of the gun and assembled it himself, the significant amount of bullets and the firearm and ammunition being kept was but one step away from its use. There being no special features which warrant a reduction, I adopt a starting point of 12 years’ imprisonment.”

21.In the result, the judge gave the applicant a full one-third discount for his plea of guilty, resulting in a sentence of 8 years’ imprisonment.

Perfected grounds of appeal

22.Mr Lawrence Lau, with him Ms Tina Mok, for the applicant, has advanced two grounds of appeal in support of his argument that the sentence is manifestly excessive and/or wrong in principle.

23.Ground 1 avers that the judge took into account irrelevant and/or prejudicial matters for the purpose of sentencing.  Although the indictment did not cover the possession of the two pistol frame kits, nor had they been proved to be capable of being built into other firearms, the judge wrongly considered such matters to be an aggravating factor, which in turn affected her assessment of the starting point.  In his written submissions, Mr Lau added a further point, to the effect that the judge was wrong to conclude that the applicant had devised a well-planned scheme to possess a firearm by way of importing gun parts in separate orders so as to deliberately avoid the attention of the authorities.

24.Ground 2 alleges that, whilst having referred herself to the mitigating (or aggravating) factors propounded in Chan Chi Fun, the judge failed to correctly apply the principles to the present case.  In particular, she failed to accord sufficient weight to the following factors:

(a)  the applicant did not physically carry the firearm and ammunition, which were kept in a locked safe;

(b)  the firearm was not loaded and had not been used, nor was it intended to be used, for any illegal purpose.  On the contrary, the packaging of the 390 rounds of ammunition remained unopened.  The suggestion that the applicant was a gun enthusiast from an early age was also well-supported by his possession of a flyer of “Sportsman’s Den” and the manual “Build Your Own Semi-Auto Handgun”, as well as the mitigation letter from his mother;

(c)  The firearm and ammunition were properly stored.  It was, therefore, somewhat far-fetched for the judge to imagine the possibility of them being accessible to others in case of a burglary; and

(d)  the applicant had a clear record.

Respondent’s submissions

25.Mr Jones Tsui, for the respondent, submitted that the judge was entitled to consider the whole facts of the case, rather than confining herself to the articles particularised in the indictment.  He submitted that the two pistol frame kits, if properly assembled with other parts, could potentially form another real pistol, or further pistols.  The judge’s reasoning was not flawed in that regard.  Mr Tsui argued that, even if one proceeded on the applicant’s assertion that the pistol frame kits were kept as spare parts for the sole use of the pistol in the charge, such use could facilitate his prolonged possession of the same pistol and would therefore constitute a different aggravating factor.  Furthermore, Mr Tsui echoed the inference drawn from the judge based on the piecemeal importation of gun parts and submitted that this was aimed at avoiding detection by the authorities. The matter of inference, he submitted, was, after all, only one of various considerations of which the judge took account. 

26.Mr Tsui submitted that the judge had correctly considered the applicable aggravating factors in the present case and correctly followed the guideline re-affirmed in Tsiang On Yan.  One could not preclude the possibility that the applicant had given other people access to the firearm and ammunition in the locked safe.  Further, whether the applicant was a gun enthusiast was not a factor of any significant weight.  Moreover, a significant quantity of ammunition was involved.  Accordingly, Mr Tsui submitted that the sentence was neither wrong in principle nor manifestly excessive.

Consideration

27.There are essentially three major criticisms of the judge’s reasoning and findings.  It is argued that, firstly, she drew impermissible inferences against the applicant for possessing two uncharged pistol frame kits and separately importing gun parts; secondly, she unfairly rejected his claim to be a gun enthusiast from an early age (although I note she did not reject the claim that he was a gun enthusiast per se); thirdly, she wrongly determined that the arms and ammunition could be accessible to others.  Whether and to what extent these matters should ultimately affect the sentence, given that the applicant was in possession of a pistol in working order, together with a substantial amount of ammunition, is a matter more for the Court of Appeal than for me at this stage.  However, it must be recognised that sentences for possession of firearms and ammunition are very heavy in this jurisdiction relative to the maximum sentence under the Ordinance; accordingly, these are issues which, depending on how they have been resolved by the judge and are regarded by the Court, could impact on the starting point and ultimate sentence in this case.

28.Whilst this Court has recently re-affirmed the appropriate sentence for possession of firearms in Tsiang On Yan, it should be observed that the circumstances in which the offence in that case was committed were described by the Court as “extremely grave”[25]; not only were the firearm and ammunition “hidden away together and clearly ready to be used”[26], but the applicant “had a significant haul of narcotic substances in his possession as well”[27].  The place where the firearm and ammunition were hidden was a farm near the border with the Mainland.

29.In those circumstances, I consider that there are reasonably arguable grounds of appeal to be put forward by the applicant; and there are also reasonable arguments to be put forward by the respondent in reply.  That being so, the matter should be determined by the Court of Appeal and I shall accordingly grant the applicant leave to appeal against his sentence.

Mr Jones Tsui SPP, of the Department of Justice, for the Respondent

Mr Lawrence Lau and Ms Tina Mok, instructed by Fan Wong & Tso, for the Applicant

[1]  It was emphasised by the defence that, at the time of seizure, the 390 rounds of ammunition were still in their original packaging: AB, p 35, at [6].

[2]  Summary of Facts, at [4](2).

[3]  Summary of Facts, at [4](3) and (5).

[4]  Summary of Facts, at [4](4).

[5]  Summary of Facts, at [4](7).

[6]  Summary of Facts, at [4](8).

[7]  Summary of Facts, at [4](6) and (9).

[8]  Summary of Facts, at [4](13).

[9]  Summary of Facts, at [4](10), (12) and (14).

[10]  Summary of Facts, at [7] and [8].

[11]  Mitigation submissions, at [10].

[12]  Ibid.

[13]  Mitigation submissions, at [29].

[14]  AB, p 38 (Index to the mitigation bundle).

[15]  AB, p 35, at [5].

[16]  AB, pp 16F-19C.

[17]  AB, p 23B-D.

[18]  AB, p 35, at [4].

[19]  AB, p 38, at [8].

[20]  AB, pp 11R-12F.

[21]  AB, p 12F-M.

[22]  AB, pp 12S-13B.

[23]  AB, p 13K-P.

[24]  AB, p 13S-U.

[25]  Tsiang On Yan, at [54].

[26]  Ibid., at [55].

[27]  Ibid., at [56].