COURT: The defendant, Cheng Cheuk-hung, faced the following two counts: (1) burglary, contrary to section 11(1)(b) and section (4) of the Theft Ordinance, Chapter 210; and (2) possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Chapter 238.
The defendant pleaded guilty to both charges before a magistrate and is committed to the Court of First Instance of the High Court for sentence.
The Admitted Facts.
The burglary occurred at a house in Kam Tin. The tenant, Madam Wong, rented the 2nd and 3rd floor of the house with her boyfriend surnamed Lui. Lui was remanded in custody for a criminal case since 15 August 2020. Madam Wong came to know the defendant through Lui before Lui was remanded.
Around 12.30 am on 21 August 2020, the defendant went to look for Lui and borrowed $200 from Madam Wong. Then around 9 am the same day, Madam Wong left for work after securing all the doors and windows. And she had, however, placed a spare key to her premises inside the mailbox on the ground-floor entrance.
Then around 6.57 pm, Madam Wong checked the surveillance camera to see her dogs at home. She received notification from the surveillance system that something was moving and she saw the defendant ransacking her bedroom. So she immediately made a report to the police and returned home.
Madam Wong met the police on the ground floor of her home at around 6.32 pm and went inside. The defendant was subdued in the study on the 3rd floor. A pair of black scissors were found in the defendant’s rear pants pocket and $24 cash was found in his front pants pocket. A key and a black hood were also found from the defendant.
And Madam Wong checked and found the following items missing from their original locations inside the house:
A computer laptop valued at $8,000;
A notebook computer valued at $2,000;
A wristwatch valued at $23,000;
An external charger, $300;
Two boxes of face masks, $300; and
Various items of small value and a pair of scissors and spare cash of $24 also missing.
Upon enquiry, the defendant claimed that Lui had given him the key for safekeeping and he had used the key to gain entrance to the premises as he had no money. The pair of scissors and the cash found on him were from the premises.
The police searched the premises and located a paper bag inside the bedroom containing all the items Madam Wong found missing (except the scissors and the cash of $24). Defendant admitted he had ransacked the premises and put the items in the paper bag. He hid the paper bag in the bedroom as he was afraid someone was returning.
The defendant was arrested and under caution he admitted he had been unemployed for two years. He had no money, so he burgled the premises to steal valuables.
After the defendant was brought back to the Pat Heung Police Station, the defendant disclosed to the police that Lui had given him a paper box for safekeeping at the end of June 2020. He suspected there were arms and ammunitions inside the box.
The police went to the defendant’s home in Pat Heung and conducted a search.
Inside a paper box behind a wooden plank near the window, the police found the following:
(a) A cocked 2.5 feet long rifle with its safety switch switched on, chambered with one round of .22LR calibre ammunition;
(b) A magazine storing one round of .22LR calibre ammunition;
(c) 29 rounds of .22LR calibre ammunition.
On the ground of the room, the police found:
(d) One round of .22LR calibre ammunition; and
(e) A fired cartridge case in .22LR calibre.
The defendant was arrested and under caution the defendant admitted that the above items were given to him by Lui.
Firearm experts confirmed that the rifle was a semi-auto rifle designed to discharge .22LR calibre ammunition. The total of 32.22LR calibre ammunitions seized at the scene were suitable for discharge by the rifle. The magazine was designed to store .22LR calibre ammunition. Test firing of the rifle was conducted successfully using two rounds of .22LR calibre ammunitions.
In subsequent video-recorded interviews, the defendant made admission in relation to the burglary. As for the arms and ammunition, the defendant said he obtained them from a ball court about a month ago. At first he thought it was a toy gun, but later he found the ammunition so he knew it might be a genuine gun. He hid the arms and ammunition out of fear inside the storage room. He had taken the rifle out but had not fired it. He believed the cartridge case and one round of ammunition (that is the items found on the floor) dropped out from the paper box. He also admitted he wrongly accused Lui by saying Lui had given him the items as he was scared when he was arrested.
The defendant led the police to a ball court in Kam Tin and pointed out a bush there, saying he found the arms and ammunition there. The defendant does not hold any licence for arm.
The defendant admitted having entered as a trespasser of the premises, he stole the items which were placed inside a paper bag and he had in his possession the seized item of arm and ammunition without a licence. So those were the Admitted Facts.
Background and mitigation.
The defendant was born in November 1964 so he is 58 years of age. He is not a man with a clear record. He has appeared in court on 14 occasions and has 18 convictions. Most of the convictions are for possession of dangerous drug. He had one conviction of robbery in 1982 and three thefts in 1982, 2005 and 2006.
Defence counsel, Ms Vivian Wong, gave this Court more details about the defendant’s background. The defendant was married but his wife had passed away. He has a grown-up daughter who is married and lives apart. Before his remand, the defendant was living with his nephew in a village house and he occupied the whole floor. The defendant worked as a construction site worker, a warehouse worker and in a dry cleaning factory before. About one year prior to his arrest, the dry cleaning factory closed down and he lost his job. He was not able to secure another job since then.
The defendant suffers from nasopharyngeal carcinoma (at stage 3 in July 2022). Although chemotherapy was planned, the defendant was unable to have the chemotherapy by way of injection so an invasion surgery needs to be done to insert a permanent tube near his heart to avoid blood clot. At the time when Ms Wong filed her written submission to this Court, the defendant had not yet had the operation. However, during the hearing Ms Wong informed this Court that the defendant had started the chemotherapy two days ago on 17 May.
While an updated medical report had not been received, according to the defendant, he was diagnosed with stage 4 of cancer by the doctor as the tumours had spread to his lymph nodes. The defendant suffers from nose bleed every morning and he takes medication to stop internal bleeding.
In mitigation, Ms Wong submitted the defendant committed the offence of burglary alone in the afternoon in an unsophisticated way. There was no loss to the victim and no weapon was used. Accepting the starting point for burglary in domestic premises is 3 years, Ms Wong stressed that the defendant pleaded guilty at the earliest practicable opportunity and is entitled to a one-third discount.
In view of the terminal illness suffered by the defendant, his chance of reoffending is extremely low or nil, Ms Wong submitted. Ms Wong also urged this Court not to enhance the sentence as his last conviction of a similar nature was 17 years ago.
As for the 2nd count, Ms Wong stressed that the defendant picked up the arm and ammunition in a ball court. He thought it was a toy gun and was shocked when he realised it was a real gun after thorough examination. He was scared and he dared not take the items to the police as he was afraid of taking them out onto the street. He left them inside the paper box and hid the box behind a wooden board in the storeroom. As the defendant occupied the whole of the 2nd floor of the village house, no one else would gain easy access to these items.
Ms Wong also stressed that after the defendant was arrested for burglary, he took the initiative and owned up to the police about the items and led the police to his home to locate them.
Ms Wong referred this Court to the authorities HKSAR v Chan Chi Fun, R v Milhench and R v Szeto Chi Keung. She submitted the arms and ammunition were kept safe by the defendant in his storeroom at home which was not easily accessible; the arm and ammunition had never been used and the defendant had no intention of using them for any purpose. The items were unconnected with the burglary count. And there was one firearm with safety switch switched on, a magazine stored with one round of ammunition and there were 29 rounds of ammunition in this case. The number was smaller than those cited in the three cases.
Ms Wong also submitted there was no international element involved and that the defendant committed the offence out of stupidity and naivety.
Lastly, accepting that a considerable term of imprisonment would be expected for the two counts, Ms Wong urged this Court to be as lenient as possible in totality given the medical condition of the defendant.
My consideration of the sentence.
I will deal with the burglary offence first. As submitted by Ms Wong, the guideline of 3 years for a burglary of domestic premises is well established (as the case of HKSAR v Lau Pang). I accept in the circumstances of this case a starting point of 3 years is appropriate. There were no aggravating factors during the commission of the offence. I will not enhance the starting point as the last similar offence was 17 years ago. The defendant pleaded guilty at the earliest available opportunity and he is entitled to a full one-third discount. So the sentence for the 1st count is 2 years.
As for the 2nd count, in the case of HKSAR v Tsiang On Yan [2019] 5 HKLRD 100, the Court of Appeal said the unlicensed possession of firearm posed a danger to the public and societal protection was a paramount consideration. A deterrent sentence was generally required. And as the maximum penalty for the simple possession of firearm under section 13 of the Ordinance was 14 years, a starting point of 12 years’ imprisonment after trial was appropriate unless there were special features warranting a reduction.
And in the case of Chan Chi Fun which was referred to by defence counsel, the Court of Appeal has stated the following:
“As a rule, this type of offence would attract a severe and deterrent sentence for the reason that firearms and ammunitions pose a potential great 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.”
These relevant factors were adopted in the case of Secretary for Justice v Yan Shen, and also the Court of Appeal in that case stated that societal protection is the paramount consideration in order to maintain the safety of Hong Kong. An immediate sentence - often for a substantial term - should be imposed except in truly exceptional circumstances.
Then let us look at these factors in this case:
(a) The firearm involved here was a semi-automatic rifle which was cocked with its safety switch switched on and one round of ammunition in its chamber. There was a magazine with one round of ammunition and another 29 rounds of ammunition, the above all found inside a paper box. And on the ground there was one round of ammunition and a fired cartridge case.
(b) The defendant was not physically carrying the arm or ammunition.
(c) The firearm was loaded with safety switch on.
(d) There is no evidence the defendant intended to use the firearm for illegal purpose.
(e) The way the paper box containing the firearm and ammunition was placed behind a wooden board and the way one ammunition and a fired cartridge was found lying around on the ground do not constitute “proper storage”. Further, while the defendant was the only person residing at the particular floor on which these items were found, should a burglar enter the premises, he or she could easily gain access to them, so therefore there is a risk of these items falling into wrong hands and pose danger to our society.
(f) The defendant does not have a clear record although he does not have a similar record involving firearm.
So having considered all the circumstances of this case with the factors that I already mentioned, and in particular when it was the defendant who brought to the police’s notice about the presence of the arm and ammunition (although he falsely accused his friend Lui at first) and together -- I am of the view that a starting point of 7 years is appropriate. Now, to make it quite clear, I think that the starting point of 8 years is appropriate in the circumstances of this case but I give a 1-year discount because the defendant owned up about the offence voluntarily to the police. That is how I bring it down to 7 years’ starting point.
And the defendant pleaded guilty, again, at the earliest available opportunity and so he is entitled to a full one-third discount. So the resultant sentence is one of 4 years and 8 months for the 2nd charge.
Now I have to consider totality.
The burglary offence and the offence of possession of arms and ammunition are two distinct and separate offences, they are not related, and so normally speaking, the sentence should be served totally separately. However, having considered firstly the totality principle and secondly the fact that the defendant is suffering from cancer and undergoing invasive chemotherapy, I am prepared to temper justice with mercy and order the two sentences to run concurrently, making a total of 4 years and 8 months.
So for this purpose, the sentence will be as follows: the 1st count, 2 years’ imprisonment; 2nd count, 4 years and 8 months’ imprisonment; all sentences to run concurrently,
making a total of 4 years and 8 months.