COURT: The defendant pleaded guilty to one count of possession of arms and ammunition without a licence at the Eastern Magistracy Court on 8 June 2023, which is now before me for sentence today.
The particulars of the offence are that on 8 October 2021 at premises in a village house in Pat Heung, Yuen Long, New Territories, the defendant had in his possession arms and ammunition, namely one pistol, three magazines and 92 ammunition, without a licence.
The facts are as follows. The police intercepted the defendant and his wife outside their home early in the morning of 8 October 2021. The police produced a search warrant and the defendant opened the door to the premises. He told the police that they did not need to search his house because the genuine gun was on the sofa and the bullets are in a yellow box in his bedroom.
On the sofa, the police found a pistol attached with a functional flashlight and had a magazine containing 15 rounds of ammunition inserted in the pistol. The police found an unsecured yellow box, one without a lock, under a computer desk inside a bedroom containing two more magazines each containing 15 rounds of ammunition. One of the magazines had a speed loader attached to it. There was also another box containing 47 rounds of ammunition. The defendant was arrested for this offence and under caution said the bullets and gun were sold to him by a Stephen for HK$25,000.
All of the exhibits were examined and a firearm expert confirmed that the pistol with a magazine inserted in it were both in working order. The magazines found in the bedroom was suitable for use in the pistol found on the sofa. It could discharge that ammunition.
The speed loader was functioning and could be used when attached to a magazine for speed loading of ammunition. All 92 rounds of ammunition were all the same calibre and were suitable for discharge in the pistol found in the sofa.
In the premises, the police also found a spring knife, a knuckleduster, five air pistols, two walkie-talkies, a respirator, two respirator canisters, and eight respirator filters. They also found a foldable knife in the defendant’s trouser pocket.
Later that same day during a search of the defendant’s previous residence in Tai Po, the police found two air guns, a box of 210 red plastic pellets, two boxes containing 228 metal pellets, ammunition suitable for use in one of the air guns found in the second premises. The police also found a pair of Chinese-style fighting irons or nunchucks.
Some of these items were subject to a similar charge of possession of arms and ammunition without a licence but that charge was withdrawn by the prosecution in the magistracy after the defendant pleaded guilty to this charge.
In subsequent video-recorded interviews under caution, the defendant admitted possession of all the items found in both premises. He explained he met a man in 2011 playing war games called Stephen. In 2013 or thereabouts, Stephen told him that he had purchased arms parts online and assembled them himself.
In 2019, Stephen told the defendant he could buy pistols online and asked the defendant if the defendant was interested in purchasing one. About a week after this conversation, the defendant did purchase a pistol, magazines, and ammunition from Stephen for HK$25,000. Stephen had told him he purchased the items on the dark web using Bitcoin.
Mitigation
The defendant is now 38 years old, born in Hong Kong, and educated up to Secondary 5 level. He is married and was, when arrested, a maintenance technician of parking meters. He has one previous unrelated criminal conviction for shoplifting and was convicted in August 2021.
I have had full mitigation from Ms Wong leading Mr Koon. Everything that can be said on his behalf has been set out in full written mitigation. I have received mitigation letters from not only the defendant but also his father, sister, friend, former colleague, and a deacon, Mr Peter Wong. I have considered the contents of those letters.
Many of the letters referred to the defendant’s enthusiasm or obsession with guns and martial arts since he was a child. There are photographs attached to the mitigation bundle showing the defendant as a young child toting toy guns and when he was older from about 2008 to 2012, participating in war games. He also travelled to Thailand and South Korea where he could legally fire live ammunition unlike in Hong Kong.
The letters and photographs serve the purpose of stressing he is a gun enthusiast who foolishly bought a gun solely for his own collection and fascination. He did not buy a firearm with the intention to use it illegally or to commit a crime. He was only fulfilling a life-long dream of owning a gun. When offered a gun and ammunition for $25,000, he was so tempted that he succumbed and spent his savings paying for those items.
Contents of the defendant’s letter shows his remorse and regret at disappointing his wife and recently retired father. He would like to make amends and support them financially after he has served his sentence. The other letters ask for leniency and stress that he was a genuine gun enthusiast and not a criminal possessing a gun and ammunition with evil intent.
A deacon, Mr Peter Wong, who has visited the defendant on religious visits whilst in remand has written about the defendant’s genuine remorse and determination to turn over a new leaf.
The only real matters in mitigation that Ms Wong has put as eloquently as could be put is the fact that the defendant has pleaded guilty at the earliest opportunity. It is also relevant that the condition of the pistol found by the police was such that it was in full working order. It was stressed that it was found inside his residence and not on his person out in public.
In addition, the charge only involved one pistol, three magazines and 92 pieces of ammunition, and whilst a magazine was loaded in the pistol, the ammunition had not been loaded inside the pistol’s chamber. Moreover, there is no evidence that the pistol had ever been used nor any evidence the defendant intended to use it for illegal purposes. It was submitted that it was only found on his sofa because he had been cleaning it. Normally it was kept and stored inside the yellow case with the other items.
How it was stored or found is relevant, it was, if I believe mitigation put forward, even if stored normally inside the yellow case, not locked or secured inside it. However, the defence have urged me to not consider the pistol was one step away from being used. There was simply no evidence to suggest he had such an intention.
Sentence
No guideline tariff is set for this present offence. The starting point obviously varies from case to case and it depends on a number of factors and the circumstances of each offence.
I have been referred to numerous authorities by both the prosecution and defence, and I have in particular referred myself to HKSAR v Chan Lap Ming, Castor, CACC 32/2022, a recent decision of the Court of Appeal discussing appropriate sentences for the present offence. It referred to a recent review of a number of authorities and an appropriate sentencing starting point.
There are obviously different levels of seriousness for this type of offence but a starting point of 12 years’ imprisonment is appropriate depending on the nature and quantity of the firearms and ammunition involved as well as the circumstances in which the offence was committed.
It is accepted that a starting point of 12 years’ imprisonment is for those cases which are extremely serious and usually involve possessing a firearm and ammunition for illegal or potentially illegal purposes which was but “a step away from its use”. Simply put, a person convicted of an offence of this nature with serious facts or is a very bad case of its type can expect a sentence after trial of 12 years’ imprisonment.
Personal circumstances of an offender does not carry much weight when compared to the need for deterrence in the offence in question. Here the defendant’s best mitigation is his plea of guilty at the earliest opportunity.
I have taken into account the type of firearm and ammunition involved, including the quantity. It is relevant that the firearm was loaded and in working order but there is no evidence to suggest it had been used. There was no direct evidence the defendant intended to use it for illegal purposes.
I have considered the fact the defendant was not physically carrying any arms or ammunition outside of his home. However, I have considered it relevant that it was not properly stored or secured and was easily accessible to anybody either entering the premises or knowing about the arms in the premises. The ready-to-use pistol was loaded with a magazine containing ammunition and left on a sofa in plain sight.
In fact, the police found DNA on the slide of the pistol that was likely to have originated from four different individuals including the defendant. On the handle of the pistol was DNA likely to have originated from two individuals and on the magazine inserted in the pistol was DNA also likely to have originated from two individuals. Other people besides the defendant had handled this weapon.
This was not a situation where a genuine gun enthusiast had purchased a genuine gun but was very careful in keeping it secret, secure and unlikely to fall in other people’s hands. This is why as a rule, this type of offence attracts a severe and deterrent sentence. Firearms and ammunition can pose a potentially grave danger to the public and society.
Being a gun enthusiast is not weighty mitigation. However, I do accept this goes towards supporting the mitigation, in the absence of any evidence to suggest otherwise, that he did not buy it intending to use the pistol or ammunition for illegal or nefarious purposes.
Now under such circumstances and considering mitigation put forward, I do find in this case a starting point of 8 years’ imprisonment appropriate. I find the starting point reflects the seriousness and criminality of the present case.
Of course the defendant has pleaded guilty at the earliest opportunity and is entitled to a full discount of 2 years and 8 months’ imprisonment. After that discount is applied, the defendant is sentenced to 5 years and 4 months’ imprisonment.
There is one other matter, there is a breach of the suspended sentenced imposed in KCCC 2111/2021. The defendant was sentenced to 2 weeks’ imprisonment, suspended for 24 months. The defendant is in breach of that suspended sentence. However, I will exercise my discretion and not activate that suspended sentence because I am of the view that the offences are of such very different nature.