HKSAR v. Chan Lap Ming Castor
Read the full judgment text of CACC 32/2022 on BabelCite. This Court of Appeal judgment was delivered on 8 August 2023 before Macrae Acting CJHC and Zervos JA.
Criminal law – sentencing – unlicensed possession of arms and ammunition contrary to section 13 of the Firearms and Ammunition Ordinance (Cap 238) – possession of functional 9x19mm pistol, 390 rounds of ammunition, and 4 magazines stored in locked safe in appellant's bedroom – appellant with clear record pleaded guilty – first-instance judge adopted 12-year starting point from HKSAR v Tsiang On Yan and imposed 8 years' imprisonment after one-third discount – whether top-scale starting point of 12 years warranted – whether importation of gun parts separately to assemble a firearm an aggravating factor – whether judge misapplied HKSAR v Chan Chi Fun in rejecting mitigation – sentencing range for unlicensed possession of firearms under Cap 238 – starting point 12 years reserved for extremely grave cases involving firearms 'a step away from its use' or intended for illegal purposes – starting point varying from 15 months to 12 years depending on nature, quantity, and circumstances – whether firearm and ammunition properly stored and not loaded are mitigating – whether gun enthusiast status relevant – Court of Appeal held present case not 'a very bad case of its type' warranting 12-year starting point – appellant's firearm not fired, ammunition in original packaging, no carriage to public place, no evidence of illegal intent – separate importation of parts not aggravating for an assembler-enthusiast – judge should have conducted Newton enquiry before rejecting enthusiast claim outright – appropriate starting point 7 years' imprisonment with one-third plea discount producing 4 years 8 months, further adjusted to enable immediate release – appeal allowed, original sentence quashed, substitute sentence imposed.
Legal issues: Whether the sentencing judge erred in adopting 12 years' imprisonment as the starting point for unlicensed possession of a firearm and significant ammunition · Whether the judge erred in treating the appellant's importation of gun parts as an aggravating factor · Whether the judge misapplied HKSAR v Chan Chi Fun in assessing mitigating factors
Outcome: Appeal against sentence allowed; original sentence of 8 years' imprisonment quashed and substituted with a sentence enabling the appellant's immediate release
Cited by 5 cases · Cites 12 cases
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CACC 32/2022, [2023] HKCA 1125 On Appeal from [2022] HKCFI 595 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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__________________________________ REASONS FOR JUDGMENT __________________________________ Hon Macrae Acting CJHC and Zervos JA (giving the Reasons for Judgment of the Court): 1.With leave granted by the Single Judge[1] on 18 January 2023, the appellant appeals against the sentence of 8 years’ imprisonment imposed on him by D’Almada Remedios J (“the judge”) on 31 January 2022 in respect of a single count of possession of arms and ammunition, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (“FAO”). The particulars of the offence averred that the appellant had in his possession a pistol, 390 rounds of ammunition in 9 x 19 mm calibre and 4 magazines, without a licence. The agreed facts 2.At the material time, the appellant lived with his parents on the ground floor of a small house in Hung Shui Kiu, in the New Territories. On 9 June 2020, at 8:50 am, he was intercepted by police officers at his home. He was searched and the police found on him three mobile telephones, two Octopus cards and $2,260 in cash. A subsequent search of his bedroom revealed that he had a safe with a broken combination lock, which was eventually opened with a key found in the drawer near a computer desk. The items that were later discovered from the safe, inside the drawer and on the computer desk were respectively listed out in paragraphs 3, 4 and 5 of the Summary of Facts and duly accepted by the appellant when he pleaded guilty to the offence. It is worth quoting those paragraphs in full below[2]:
The mitigation 3.At the hearing of the plea and sentence on 6 December 2021, a mitigation submission was filed on behalf of the appellant by leading counsel. It was stated that the appellant was single and aged 39, worked as a bank manager and did not have any previous conviction[3]. It was also submitted that the appellant committed the offence due to his obsession with collecting firearms and ammunition[4]; he had no illegal intent to use them; and they were “properly and safely stored in the locked safe in his own bedroom and there was little, or no chance, of them falling into the wrong hands”[5]. Various authorities were cited to substantiate the appellant’s contention that he should be sentenced at the lower end of the sentencing scale. The first hearing 4.At the hearing, the judge considered it appropriate to seek clarification from the parties of several matters arising from the Summary of Facts. 5.First, the judge was concerned with the relevance of certain aspects of paragraphs 4[6] and 5[7] of the Summary of Facts. In particular, she queried whether the item in paragraph 4(2) “would have contained another pistol?”[8]. She also required that further information, including photographs and descriptions, on the items referred to in those paragraphs be furnished by the parties. Secondly, it was accepted by the prosecution that the pistol had not been fired, and the ammunition had been kept in its original packaging[9]. Thirdly, the judge questioned how and from where the appellant obtained the pistol[10]. Fourthly, she wished to know how long the appellant was said to have been a gun enthusiast and whether he was a member of any gun club[11]. 6.Accordingly, the judge gave directions on the filing of supplemental material and adjourned the hearing to 31 January 2022. The additional material from the prosecution 7.On 29 December 2021, the prosecution filed with the court a photograph album and an “expert report” to supplement the Summary of Facts[12]. The album consisted of 32 photographs[13], with one photograph of each item in paragraph 4 of the Summary of Facts. As to the “expert report”, it was in fact a short explanatory note said to be prepared by a Chief Inspector of the Police Forensic Firearms Examination Division and reviewed by a Firearm Examiner, bearing both of their signatures. 8.In respect of paragraph 4(2), (3), (5), (7) and (8) of the Summary of Facts, it was stated in the explanatory note that:
9.On 21 January 2022, the defence filed a mitigation bundle[19] consisting of a supplemental mitigation submission, a table showing the descriptions of the items in paragraphs 4 and 5 of the Summary of Facts, a copy of the “Build Your Own Semi-Auto Handgun” as well as a “Glock parts diagram”. 10.It was stated in the supplemental mitigation submission that the appellant had bought the gun parts separately and then assembled his own gun[20]; that those gun parts were not purchased until some 2 to 3 months before the offence[21]; and that the appellant completed an Airsoft Practical Shooting Course on 21 May 2020[22]. It was also submitted that he had become interested in air pistols since he was at primary school or 7 to 8 years old[23]. The second hearing 11.Upon further clarification by the prosecution at the hearing on 31 January 2022, the judge acknowledged that the relevant items in paragraphs 4 and 5 of the Summary of Facts, in particular the two pistol frames, would not be sufficient to assemble or build another gun. The following exchanges then took place between the judge and prosecuting counsel[24]:
12.Immediately afterwards, the judge delved into the possibility of extending the scope of the present charge to cover his possession of the uncharged articles. The following exchanges ensued[25]:
13.Whilst accepting that the additional pistol frames, if assembled with other proper parts, could “potentially” form a further gun or further guns[27], defence counsel argued that such potential use was, however, contrary to the appellant’s intended use of them as spare parts for the pistol. He submitted[28]:
The sentencing 14.In passing sentence, the judge relied substantially on the judgment of this Court in HKSAR v Tsiang On Yan[29], from which she extensively quoted, noting that[30]:
The judge went on to state that[31]:
15.Whilst the judge did not reject the general allegation that the appellant was enthusiastic about guns, she rejected the specific allegation that he had been a gun enthusiast from an early age[32]. The judge said[33]:
16.The judge was conscious of the appellant’s experience, or interest, in assembling his own gun and hence disbelieved his claim that the uncharged articles were used as spare parts for his gun. The judge reasoned[34]:
17.The judge also discerned from the present facts two additional aggravating factors. First, she contrasted the separate importations of gun parts to assemble a firearm with a one-off importation of such a firearm, treating separate importations as an aggravating feature[35]:
18.Accordingly, she rejected the contention that the appellant should be given a discount on sentence on the basis that there was no evidence to show that he intended to use the unloaded and unfired firearm for any illegal purpose[36]. 19.Secondly, the judge found that the pistol (and the significant amount of ammunition) had not been properly stored. This prompted her to consider that the pistol was “one step away from its use”[37]. She held[38]:
20.In the result, the judge adopted 12 years’ imprisonment as the overall starting point of the offence. She gave the appellant a one-third discount for his plea, making a sentence of 8 years’ imprisonment. The appellant’s submissions 21.By Ground 1, Mr Lawrence Lau, with Ms Tina Mok, for the appellant, argued that the judge wrongly and unfairly inflated the sentence by not merely taking into account the appellant’s possession of two frame kits as a circumstantial factor, but by going further to hold that he had a well-planned scheme to possess a firearm by importing gun parts to avoid the attention of the authorities and to give weight to the potential risk of him building more firearms. Mr Lau also criticized the judge for not specifying the enhancement in sentence in respect of each aggravating factor. He submitted that the enhanced starting point should have been less than 12 years if the enhancement in respect of the possession of the two frame kits was taken out from the formula, bearing in mind that the maximum sentence for the offence is 14 years’ imprisonment. 22.By Ground 2, the judge was criticized for having misapplied HKSAR v Chan Chi Fun[39]. In particular, Mr Lau made four points on the present facts, which he said could be distinguished from those in Chan Chi Fun. First, the appellant did not physically carry his gun and ammunition which were stored in a locked safe at his home instead. Secondly, his gun was not loaded and had never been used, and the original packaging of the ammunition had not even been opened. Thirdly, his gun and ammunition were locked in a safe inside his bedroom and could not possibly be accessible to others. Finally, there was no evidence to show that the appellant intended to use the gun for any illegal purpose. The respondent’s submissions 23.Mr Jones Tsui, for the respondent, resists the appeal. He submitted that there was nothing wrong for the judge, for the purpose of sentencing, to utilize all aspects of the Summary of Facts duly accepted by the appellant and therefore take into account the potential risk of the two frame kits being assembled into another firearm. Since the appellant had the habit of purchasing gun parts piecemeal, it could be reasonably inferred that he would assemble another complete gun upon receipt of further gun parts to be ordered or received. Mr Tsui went on to submit that, even if no other gun was to be assembled, the appellant’s sentence could still be enhanced on a similar or different footing that he possessed spare parts for his pistol in order to prolong its possession or use. In respect of enhancing the sentence on the basis of avoiding the detection of the authorities, Mr Tsui pointed to the risk of unintentional discharge of bullets in case a self-assembled gun was not in working order. 24.Mr Tsui submitted that there was a lack of valid mitigating factors in the appellant’s case. Even if there was any, the mitigating factor(s) was/were not strong enough to justify a meaningful reduction in the sentence. He submitted that a gun enthusiast may nevertheless use his gun for an unlawful purpose; and that a gun locked in a safe could nevertheless be accessible to someone if given the key. Discussion 25.An offence under section 13 of the FAO attracts a maximum sentence of 14 years’ imprisonment. The section expressly provides that[40]:
26.No guideline tariff is set for the present offence, although it is customary to impose a custodial sentence, which cannot be suspended[41]. The starting point varies from case to case and depends on a number of factors, and of course, the facts. Judging from the appellate authorities, the varying starting points could range from 15 months’ imprisonment[42] to 12 years’ imprisonment. 27.The appropriate sentence for the present offence was most recently considered by this Court (as presently constituted) in Tsiang On Yan. The Court noted that because of the breadth of the offence, there would be a wide variety of items and circumstances where a person may offend contrary to section 13 of the FAO[43]. The Court took the opportunity to review extensively a number of appellate authorities, noting that “in the early 1990’s, a term of at least 6 years’ imprisonment after a plea of guilty was considered a guideline sentence for unlicensed possession of a firearm”[44]. With particular reference to three subsequent authorities, namely R v Au Yeung Wai Kwong[45], R v Yeung Hiu Shing[46] and HKSAR v Chan Hoi Ngam[47], the Court said that there were “obviously levels of seriousness for this offence”[48], and “depending on the nature and quantity of the firearms and ammunition involved and the circumstances in which the offence was committed … a starting point of 12 years’ imprisonment would be appropriate”[49]. It was noted that whilst a starting point of 12 years’ imprisonment after trial had been accepted by the courts, the circumstances of such cases were extremely grave and usually involved a defendant in possession of a firearm and ammunition for illegal or potentially illegal purposes, which was but “a step away from its use”[50]. The Court emphasised that special features may be present in a case that would take the offending outside the top scale and warrant a reduced starting point. As stated by the Court:
28.We pause here to emphasise that the three authorities cited above were all very bad cases of their kind, and we would make these brief observations about them:
29.In Tsiang On Yan, the applicant was found, in a farm near the border with the Mainland which was occupied by him, in possession of 359.61 grammes of herbal cannabis (Count 1) and a self-loading pistol with 13 rounds of ammunition and a magazine (Count 2). He had two previous convictions involving three different offences, namely assaulting a police officer, blackmail and claiming to be a member of a triad society[51]. In addition, this Court found that there was DNA evidence of him handling the pistol which was therefore described as “a step away from its use” and his purported interest in guns was considered incredible on the facts of that case[52]. This Court concluded by saying that[53]:
In the result, the appeal was dismissed and the starting point of 12 years’ imprisonment and the resulting sentence of 8 years’ imprisonment for the offence was upheld. 30.The Court in Tsiang On Yan also endorsed the relevant factors to be considered in sentencing[54] for the offence of possession of arms and ammunition without a licence, as propounded in Chan Chi Fun. We would also point out that, in Chan Chi Fun, the firearms included two revolvers, a pistol, a rifle and a taser. The Court (Woo VP and Yuen JA) accepted that some of the firearms possessed by the applicant had been stored in safe places, such as a safety box, some had been dismantled, and none had been loaded or had ever been used. Notably, the applicant had a clear record. In those circumstances, the Court allowed the appeal, quashed the original sentence of 5 years and 4 months’ imprisonment, and substituted a sentence of 4 years’ imprisonment (based on an appropriate starting point of 6 years). 31.In HKSAR v Hu Quanwu[55], the applicant was a visitor to Hong Kong. In the wardrobe of his hotel room was found his travelling bag containing a pistol[56] and a magazine loaded with three rounds of ammunition. The pistol was placed inside two plastic bags and wrapped in a piece of newspaper[57]. Noting his clear record[58], the sentencing judge adopted 13 years’ imprisonment as the starting point for the sole charge of possession of arm and ammunition to which the applicant had pleaded guilty. Whilst allowing the appeal, the Court (Yeung VP and Macrae J (as Macrae VP then was)) considered it “a very bad case of the type”[59] and therefore reduced the starting point to 12 years only, stating that[60]:
32.In Secretary for Justice v Yan Shen[61], the respondent was a 43 year-old man of previous impeccable character[62]. On his 17th birthday, and while pursuing his studies in the United States, he was given a pistol as a gift by his friend who was a licensed holder of such a pistol and when he ran into difficulty paying the rent for his share of the house which they jointly tenanted[63]. The respondent had kept the gun as a memento ever since[64] and until he was arrested for possession. He pleaded guilty to the offence, and was given a Community Service Order of 240 hours and fined $50,000. The Secretary of Justice applied to review his sentence. Whilst the application was dismissed, Stock VP (as Stock NPJ then was), in giving the judgment of the Court, said[65]:
Stock VP also made it clear that the appropriate sentence, in that case, would have been in the region of 18 months’ imprisonment (meaning a notional starting point of 27 months’ imprisonment)[66]. 33.Later, in Secretary for Justice v Leung Kwok Chi[67], the respondent was a retired Correctional Services officer and a genuine gun enthusiast who had a membership of, or was affiliated to, various local shooting associations and overseas gun clubs[68]. He resided in a public housing unit where there was found a large quantity of arms (including one Thomson Contender rifle, two revolvers, three airguns and a flare pistol[69]) and ammunition otherwise scattered around his flat[70]. He was initially sentenced to 18 months’ imprisonment following his plea. After a successful review of the sentence, a term of 30 months’ imprisonment was substituted (the proper starting point being 5 years’ imprisonment[71]). In terms of the varying degrees of culpability for the offence justifying a starting point at the top or lower end of the scale, the Court (Yeung VP, Barnes and McWalters JJ) had this to say:
34.Finally, in Tsiang On Yan, this Court stressed that the unlicensed possession of firearms posed a danger to the public and societal protection was a paramount consideration when sentencing offenders. Hence, the strict gun control laws in Hong Kong demanded that penalties be imposed on offenders to reflect society’s opprobrium for this type of offending, subject to the particular circumstances of the offence and the offender[72]. 35.Turning, therefore, to the present case, the appellant is a person with a prior clear record. He was in possession of a single pistol. Albeit functional, the prosecution expressly confirmed that it was not fired and the ammunition was kept in its original packaging. The arm and ammunition were stored in a safe which could not be opened without a key. There was also a lack of evidence to show that the appellant had used the arm and ammunition, or physically carried them to a public place, or contemplated doing so (in which case the prosecution might have been proceeded with a charge of Possession of arms and ammunition with intent to endanger life, contrary to section 16(1) and (2) of the FAO). Amongst all of the things found in his home, there were a 94-page manual book on how a gun is assembled, as well as a flyer from Sportsman’s Den on where to purchase guns and ammunition. The appellant also claimed to have completed a shooting course in May 2020. 36.On the part of the judge, she duly accepted the appellant’s assertions that he assembled the gun himself (and, indeed, went further to believe that a further gun would be assembled) and that he had an interest in real firearms and ammunition as from about 2020. 37.On all of these facts, we are not prepared to accept that the appellant’s claim to have been a genuine gun enthusiast should have been rejected outright, although as a matter of good sentencing practice, the defendant’s version of events, if unsupported by any evidence, is best established by way of a Newton enquiry. As to how long the appellant had been a gun enthusiast, it is perhaps a side point in which we do not see any real impact on mitigation. 38.We should also add this, whilst the judge was perfectly entitled to, and should, have had recourse to the full Summary of Facts for the purpose of assessing any real possibility of another gun being assembled, the difficulty in this case was that, as expressly confirmed by the prosecution, the component parts found in his home were clearly not sufficient for the purpose of assembling another gun. Absent any evidence to show that more component parts had already been purchased by, or would be delivered, to the appellant, we do not think it fair to assume or infer that another gun would or could be assembled, or would be functional if so assembled. In addition, for an offender who had a fascination for assembling his own gun, it could hardly be said that his importation of gun parts (as opposed to a finished gun) constituted an aggravating factor. 39.In our view, the present case is certainly not a very bad case of its type, which would have warranted a starting point as high as 12 years’ imprisonment. As we have explained such a starting point is normally adopted when the circumstances of the case are extremely grave. With respect, the judge may have not correctly interpreted what we said in Tsiang On Yan by focusing too much on the generality of using 12 years’ imprisonment as the starting point for the offence, without properly regarding the actual circumstances of the case. We are satisfied that the appellant should be sentenced at the medium level of the scale for such offences. 40.In all the circumstances, and having regard to the authorities, we considered that an appropriate starting point for the offence should not exceed 7 years’ imprisonment. We detect no discernible aggravating features to warrant enhancing the starting point further. Equally, we bear in mind that the personal circumstances of the offender should generally merit less attention than the need for deterrence in the offence in question. Since the appellant made a timely plea to the charge, for which the judge gave him a one-third discount, that would reduce his sentence to 4 years and 8 months’ imprisonment for his plea alone. 41.We were informed that the appellant’s earliest date of release is 8 October 2025 (assuming good behaviour). That effectively meant the remaining part of his original sentence was equivalent to a sentence of 3 years and 3 months’ imprisonment, which was very close to the reduction in sentence were we to allow the appeal as previously suggested. 42.Accordingly, we allowed the appeal, quashed the appellant’s original sentence, and imposed on him a sentence that would enable him to be immediately released.
Mr Jones Tsui, SPP, of Department of Justice, for the respondent Mr Lawrence Lau and Ms Tina Mok, instructed by Fan Wong & Tso, for the appellant [1] Macrae VP. [2] Appeal Bundle (AB), pp 4-6. [3] The mitigation submission dated 6 December 2021, at [7], [10] and [12]: AB, pp 25-26. [4] Ibid., at [17]. [5] Ibid., at [18]. [6] AB, p 153M-N. [7] AB, p 164F-G. [8] AB, p 157I-J. [9] AB, p 165B-R. [10] AB, p 166I-J. [11] AB, p 167L-N. [12] AB, p 184. [13] AB, pp 190-221. [14] AB, p 223. [15] AB, p 224. [16] AB, p 224 (Item 3). [17] AB, p 224 (Item 4). [18] AB, p 224 (Item 5). [19] AB, pp 34-148. [20] Supplemental mitigation submission, at [4]; AB, p 36. [21] Supplemental mitigation submission, at [5]; AB, p 36. [22] Supplemental mitigation submission, at [7]; AB, pp 36-37. [23] Supplemental mitigation submission, at [8]; AB, p 37. [24] AB, pp 174A-175K. [25] AB, pp 175T-177B. [26] It should be noted that section 52(1)(e) of FAO provides that:
[27] AB, pp 16F-19C. [28] AB, p 23B-D. [29] HKSAR v Tsiang On Yan [2019] 5 HKLRD 100. [30] AB, p 9L-N. [31] AB, p 11J-K. [32] It was stated in a mitigation letter written by the appellant’s mother that “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.” [33] AB, pp 11R-12F. [34] AB, p 12F-M. [35] AB, pp 12S-13B. [36] AB, p 13B-D. [37] AB, p 13T. [38] AB, p 13K-P. [39] HKSAR v Chan Chi Fun [2006] 1 HKLRD 128. [40] It should be noted that under section 2 of the FAO “arms” and “ammunition” are broadly defined, and include a firearm and ammunition for a firearm. [41] See Schedule 3(7) to the Criminal Procedure Ordinance, Cap 221. [42] In R v Leung Shiu Lun (Unrep., CACC 609/1996, 12 March 1997), the arms concerned included two air rifles and two air pistols, with muzzle energy ranging from 2.30 joules to 12.84 joules. The applicant surrendered to the police and admitted being the real owner of those unlicensed arms which were found in his brother’s home. In that case, the Court (Nazareth VP, Bokhary and Liu JJA) quashed the original sentence of 18 months’ imprisonment and substituted a sentence of 10 months’ imprisonment (the appropriate starting point being 15 months’ imprisonment). [43] Tsang On Yan, at [37]. [44] Tsiang On Yan, at [39]. [45] R v Au Yeung Wai Kwong [1994] HKLY 401. [46] R v Yeung Hiu Shing [1997] HKLY 402. [47] HKSAR v Chan Hoi Ngam [2000] 1 HKC 618. [48] Tsiang On Yan, at [42]. [49] Tsiang On Yan, at [48]. [50] Tsiang On Yan, at [51]. [51] Tsiang On Yan, at footnote [1]. [52] Tsiang On Yan, at [55]. [53] Tsiang On Yan, at [54]. [54] See Tsiang On Yan, at [46]. The relevant factors are:
[55] HKSAR v Hu Quanwu [2011] 3 HKLRD 686. [56] It was a homemade, self-loading pistol capable of discharging 7.62 x 17 mm calibre ammunition: see the Reasons for Sentence in respect of HKSAR v Hu Quanwu (Unrep., HCCC 94/2010, 2 June 2010). [57] Ibid., at [3]. [58] Ibid., at [20]. [59] Ibid., at [25]. [60] Ibid., at [31]. [61] Secretary for Justice v Yan Shen [2012] 3 HKLRD 652. [62] Yan Shen, at [10]. [63] Yan Shen, at [7]. [64] Yan Shen, at [11]. [65] Yan Shen, at [35]. [66] Yan Shen, at [51]. [67] Secretary for Justice v Leung Kwok Chi (Unrep., CAAR 6/2012, 18 April 2013). [68] Leung Kwok Chi, at [15]-[18]. [69] Ibid., at [5] and [8]. [70] Ibid., at [54]. [71] Ibid., at [55]. [72] Tsiang On Yan, at [34], [51] and [52]. | ||||||||||||||||||||||||||||||||||
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