The 1st defendant pleaded guilty to the 1st charge, possession of ammunition without licence. Between on or about 22 July 2021 and 4 September 2022, at Man Yat House, Hing Man Estate, Chai Wan, he and a “Johnny Yip” had in his possession ammunition, namely 138 pieces of 9 millimetre bullets without, a licence. That is 9x19mm calibre bullets.
The 1st defendant pleaded guilty to the 2nd charge, conspiracy to possess arms without a licence. Between on or about 22 July 2021 and 5 September 2022, in Hong Kong, he conspired together with “Johnny Yip” and other person or persons unknown to possess arms, namely firearms to be assembled from parts printed by a 3D printer, without a licence.
The 1st defendant pleaded guilty to the 3rd charge, possession of arms without a licence. He, between the same dates as Charge 2, at Room 206 of Man Yat House, together with “Johnny Yip”, had in his possession arms, namely three magazines, without a licence. Those magazines were capable of storing ammunition in 9x19mm calibre.
The 1st defendant pleaded guilty to the 4th charge, possession of an explosive substance. He, between the same dates as Charge 2, at the same address as Charge 3, knowingly had in his possession an explosive substance, namely sodium azide.
The 2nd defendant pleaded guilty to the 5th charge, an attempt to possess ammunition without licence. He, on 5 September 2022, at the staircase outside Room 206 of Man Yat House, Hing Man Estate, together with a person known as “Honey Supplier”, attempted to possess ammunition, namely 138 pieces of 9 millimetre bullets, without a licence. The same bullets as those in the particulars of Charge 1.
The 2nd defendant pleaded guilty to Charge 6, an attempt to possess arms without licence. He, between an unknown date in 2021 and 5 September 2022, in Hong Kong, together with a person known as “Honey Supplier” attempted to possess arms, namely five pieces of grip-shape 3D printed gun parts with frame, nine barrel-shaped 3D printed gun parts, three hammer-shaped 3D printed gun parts and six frame pins, without a licence.
The 2nd defendant pleaded guilty to the last charge, Charge 7, possession of ammunition without a licence. He, between an unknown day in 2021 and 5 September 2022, in Hong Kong, together with a person known as “Honey Supplier”, had in his possession ammunition, namely nine pieces of 9mm bullets, without a licence. That is, 9x19mm calibre bullets.
The Prosecution Case
The facts are as follows. At around 8.25 pm on 4 September 2022, the police received a report of a bag of suspected bullets being found at the staircase outside Room 206, Man Yat House, Hing Man Estate. They arrived at the scene within minutes and found a bag containing a plastic box containing three paper boxes containing a total of 138 9mm bullets, the subject matter of Charge 1 against the 1st defendant and the subject matter relating to Charge 5 against the 2nd defendant.
At 10 pm, the 1st defendant, who lived at Room 206, returned home and was intercepted by the police for questioning. At 10.45 pm, he was arrested and cautioned for possession of ammunition without a licence. At 2.50 am on 5 September 2022, the police conducted a house search in Room 206.
The police found many items, including a 3D printer in the living room and a safety box in the 1st defendant’s bedroom containing two cans containing a total of 309 grammes of white powder, later confirmed to be an explosive, sodium azide, the subject matter of Charge 4.
In the same bedroom, the police found containers of poison, one contained 119 grammes of a mixture of arsenic trioxide and thallium sulphate whilst two others contained a total of 791 grammes of arsenic trioxide.
The police seized three black magazines, the subject matter of Charge 3. They were subsequently examined and each of them is a magazine capable of storing ammunition in 9x19mm calibre and was suitable to be used in a firearm, namely a Glock 17 pistol in 9x19mm.
The police also seized 3D printed gun parts, including 13 pieces of 3D printed liberator gun parts in his bedroom. They also seized 6 pieces of grip-shaped 3D printed liberator gun parts as well assorted 3D printed parts from a cupboard in his bedroom, the subject matter of Charge 2.
Three video-recorded interviews were conducted with the 1st defendant. He told the police that all illegal items seized from his home did not belong to him but were passed to him by a male named Johnny Yip for safekeeping. They met online in either 2017 or 2018 and shared similar interests. They met to hike and camp occasionally.
In 2021, Johnny Yip brought that 3D printer and some boxes to his home for safekeeping as he was about to emigrate to Canada. He gave him a USB thumb drive and told him to print some gun parts with that 3D printer. He showed the 1st defendant how to print gun parts. He told him that some boxes contained gun parts printed by that 3D printer and some poison. The 1st defendant saw some gun parts inside some boxes.
The police found a voicemail from Johnny Yip dated 3 August 2021 where he asked the 1st defendant if he had started to print the stuff. The defendant told the police he did not print anymore gun parts despite what would appear to be an agreement to do so. This would be part of the conspiracy of Charge 2.
The 1st defendant told the police that about a week before his arrest, Johnny Yip contacted him on the Signal app and asked him to hand over some of the ammunition in the boxes to a friend at 6 pm on 5 September 2022. The defendant alleged not to have known the boxes contained ammunition until that moment. He did find and take out the bullets of Charge 1 as instructed. He left them at the staircase outside of his home one day too early and went out. When he returned home, the police were there and he was subsequently arrested.
The 1st defendant said he received no rewards or remuneration from Johnny Yip for keeping the items in his home. He gave the police passwords to all his devices. He could not show the police his communications on Signal or Instagram with Johnny Yip relating to the ammunition being delivered to a friend because all messages had been deleted automatically.
He told the police he did not agree with the political views of Johnny Yip because he was too extreme. Apparently this was the reason he agreed to cooperate with the police by continuing a dialogue with Johnny Yip to facilitate the delivery as arranged.
On the following day at 10 pm, the defendant’s workplace was search and his desktop computer accessed. On this device, the police were able to retrieve messages on Signal between himself and Johnny Yip. Screenshots were taken.
Under caution, in a video-recorded interview, the 1st defendant explained some of those messages retrieved from his work desktop computer. Messages dated 22 July 2021 referred to Johnny Yip needing one hour to explain to the 1st defendant how to print parts using the 3D printer. Another message declared that he had arrived at the 1st defendant’s home just after midnight with the printer and some boxes.
There was a further voicemail on 3 August 2021 from Johnny Yip asking the 1st defendant if he had started printing the stuff. There was a message from Johnny Yip on 23 August 2021 telling the 1st defendant his buddy would pick up two boxes from him. The 1st defendant said this message was referring to the ammunition of Charge 1.
After the 1st defendant’s arrest, he expressed a willingness to assist the police in ensuring that the ammunition left in the staircase would be picked up by a person sent or organised by Johnny Yip. Johnny Yip had a Telegram user name, “Honey Supplier”, and his Signal user name was Johnny Yip. The 1st defendant contacted him under the supervision of the police. He also contacted the 2nd defendant who had a Telegram user name “Penguin”. In those messages supervised by the police, Johnny Yip told the 1st defendant that he would arrange a courier to collect the ammunition. The 2nd defendant then approached the 1st defendant via Telegram to confirm that he was the one coming to collect the ammunition.
As a result of this, the police left a dummy parcel on the staircase. This was collected by the 2nd defendant at around 7.14 pm that day, 5 September 2022. He was intercepted leaving the building in possession of the dummy parcel. He was arrested for possession of ammunition without a licence and under caution he admitted he was instructed by someone on Telegram to pick up something that day. He also said he was looking after three bags of stuff which he had picked up on a previous occasion, now kept at home. He said he did not know the contents of those three bags of stuff. The 2nd defendant was led home by the police.
During the house search, in a cupboard in the 2nd defendant’s bedroom, the police found the firearms set out in the particulars of the 6th charge, items of 3D printed gun parts. They were found in a paper box as well as in three book safes. In two of those book safes, the police also found a total of nine 9mm bullets, the subject matter of Charge 7.
Under caution at home, when arrested for possession of firearms and ammunition without a licence, the 2nd defendant said he picked up all these items in the middle of 2021. He was paid $40,000 to fetch them and store them by someone he contacted through Telegram. In a subsequent video-recorded interview, he expanded on his admission.
That Telegram user was known as “Honey Supplier” and they met in chat group offering jobs for quick money. He picked up all those items and cash of $40,000 and kept them at home. He said he never opened the boxes or book safes and did not know they contained firearm parts and ammunition.
The 2nd defendant said he was contacted the night before his arrest, 4 September 2022, by “Honey Supplier” at around 10 pm asking if he was short of money and there was a job for him to collect something from a stairwell. He proceeded to the stairwell without knowing what he was to pick up. He was arrested after picking up the dummy parcel.
He also frankly admitted under caution that he had opened the paper box he collected and did see gun parts inside. He had contacted “Honey Supplier” to ask when to return those boxes but had had no response, so he just kept them. He admitted his Telegram username was “Penguin”.
A forensic firearm examiner examined all the exhibits and his opinions were included the Summary of Facts agreed by both defendants. He confirmed the ammunition of Charge 1 and 7 were all 9x19mm calibre bullets. He confirmed that the three black magazines of Charge 3 were capable of storing 9x19mm calibre bullets and suitable to be used in a Glock 17 pistol.
He examined the suspected firearm parts found in the 2nd defendant’s home and concluded that the test firing of the assembled parts was not successful, therefore it was not capable of discharging the bullet used and the assembled parts were as they were, not capable of being used as firearm component parts.
A bomb disposal officer conducted an explosive test with the explosive substance seized from the 1st defendant’s home and gave his opinion. 300 grammes of that explosive material found would create a blast sparkle and heat. The effect of blast and heat would have been largely restricted to close proximity to the seat of explosion. Significant blast effects leading to either serious injury or even death would have radiated from approximately 0 to 0.5 metres from the seat of explosion. The powder was within the definition of an explosive under the law.
Mitigation
The 1st defendant is now 33 years old, a man with a clear record and had employment at the time of his arrest. He was working in the construction industry and studying for a degree at the same time. I have received many letters from the defendant himself, his girlfriend, relatives, former teachers. I have seen academic certificates and professional training certificates. I have taken into account the contents. His remorse has been stressed and demonstrated by his pleas at the earliest opportunity.
Mr Young has said all he can say on the defendant’s behalf. He has submitted that the defendant’s previous good character carries weight and should be regarded as providing further mitigation.
He also submits that the 1st defendant provided assistance to the authorities after his arrest enabling the police to carry out a controlled operation resulting in the 2nd defendant’s arrest. He goes so far as to suggest the 1st defendant deserves a discount of at least 45 per cent from the starting points I consider appropriate. He relies on, and has referred me to, several authorities, including HKSAR v Lo Sze Tung Stephanie 1 [2019] HKC 309.
Mr Ma for the 2nd defendant has also said all he can say on behalf of the 2nd defendant. He was 27 years old at the time, a man with a clear record and employed as an IT technician. He too has pleaded guilty at the earliest opportunity and stresses his remorse. I have received letters from the defendant himself, his family members, previous teachers, a former employer and a director of a youth centre where the 2nd defendant volunteered actively for years.
There is a suggestion that the 2nd defendant was entrapped. He was approached by someone, “Honey Supplier”, and tempted by quick money. Mr Ma suggests the offence, Charge 5 was instigated and arranged by the police. However, with respect, there is no merit in this suggestion. This was not the first contact with “Honey Supplier”. The 2nd defendant was paid $40,000 in 2021 by “Honey Supplier” for storing 3D printed gun parts and ammunition for him. As soon as he was arrested for picking up the ammunition, he admitted frankly there was another three bags of stuff kept at his home. He must have known there was a connection.
I have taken into account everything said on behalf of both defendants. That includes their backgrounds and previous clear records. I have read all letters submitted and considered the contents. Their best mitigation is their pleas of guilty.
Sentencing
The prosecution have referred me to the authorities HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 and HKSAR v Tsiang On Yan [2019] 5 HKLRD 100.
There are obviously different levels of seriousness for possession of firearms and ammunition as well a possession of an explosive substance. Principally, if an accused is in possession of a firearm together with ammunition, which is “but”, I quote, “a step away from its use”, then, after trial a sentence of 12 years’ imprisonment would be appropriate.
An offence of simple possession of arms or ammunition without a licence carries a maximum penalty of 14 years’ imprisonment. There is a more serious offence of possession of arms or ammunition that are used or intended to be used to endanger life or to commit a crime where the maximum penalty is life imprisonment.
The possession of firearms and ammunition pose a danger to the public and the protection of society is a paramount consideration. Therefore, a deterrent sentence is generally required. What is clear is that the personal circumstances of an offender does not carry much weight when compared to the need for deterrence for offences of this nature.
I appreciate that the authorities I have been referred to involve firearms in working order. Relevant factors to be considered include the type of firearm and ammunition involved, whether the accused was physically carrying the firearm and ammunition, whether the firearm had been used or intended to be used for illegal purposes, whether the firearm and ammunition were properly stored or easily accessible by offenders, and whether the accused had a clear record. The level of sentence depends on the court’s view of any potential risk posed by the exhibits. This includes taking into account the facts of the case and the background of each accused.
Mr Young for the 1st defendant plays down the seriousness of the offences in his mitigation. He highlights the fact that the 1st defendant was not paid any money, said he did not share Yip’s extreme political views and was only helping a friend to store belongings. This does not explain why he would sit through a demonstration of how to print gun parts and agree to print gun parts. It does not explain why he would agree to facilitate the delivery and collection of a large amount of bullets. It does not explain why he would agree to keep so much and such bulky items for Yip indefinitely.
Mr Young has suggested a 4 to 4½ year starting point would be appropriate for Charge 1. I was referred to several other sentences imposed in the Court of First Instance.
Mr Young stresses the firearms in this case are only components of firearms and a 12-year starting point would not be appropriate. He, in particular, referred me to HKSAR v Ng Wah Kan, CACC 126/2013, which concerned a homemade pistol loaded with a homemade cartridge which, when cleaned, was capable of firing .410 calibre bullets. The Court of Appeal reduced the starting point of 10 years’ imprisonment to 8 years’ imprisonment to take into account the rudimentary homemade nature of the pistol. Mr Young is suggesting that a 4-year starting point would be appropriate for Charges 2 and 3.
In relation to Charge 4, he has referred to me several authorities in his written mitigation, several sentences and suggested a 2-year starting point would be appropriate. It was submitted as appropriate because the 1st defendant said he did not know the cans contained an explosive substance. Therefore, this affects his culpability and makes the circumstances of this charge less serious.
Mr Ma has referred me, on behalf of the 2nd defendant, to several cases in his written mitigation. He refers to a starting point of 3 years and 6 months for possession of 249 bullets, HKSAR v Choi Hong Kiu and Others, HCCC 86/2022. Without repeating the facts of that case, clearly that defendant and those co-defendants were war gamers and firearm enthusiasts, very different to the facts here.
He too has stressed the facts of this case are not the most serious for charges of this nature. The gun parts were unassembled and homemade. The parts and ammunition were kept in boxes at home. Nothing was on the verge of being used or “ready to be used”. He stressed the test results conducted by the firearms expert.
Mr Ma submits, for Charge 5, a 2-year starting point or less would be appropriate, a 4-year or less starting point would be appropriate for Charge 6, and I shall take into account for Charge 7 there were only nine bullets in his possession. An overall starting point of 5 years is suggested to be appropriate for the 2nd defendant in the circumstances of his case.
Taking into account the facts of this case and the background of each defendant, I do distinguish the roles of the two defendants here. The 2nd defendant stored ammunition for a reward and attempted to possess arms as well as attempted to possess ammunition for a reward and expected reward. There is nothing to suggest he possessed or attempted to possess these items other than for a financial reward. There is no evidence to suggest he knew the 1st defendant or of Yip’s extreme political views and involvement in firearms and ammunition.
The 1st defendant, however, did not possess ammunition, arms and explosive substances for a reward. Why then would he commit these offences? He did it at the request of Johnny Yip. Johnny Yip brought around to his home a 3D printer, material and taught him how to print gun parts. He left him with gun parts already printed or made, a significant amount of ammunition and explosives. As part of a conspiracy with Johnny Yip, he agreed to print gun parts but ultimately did not do so.
He told the police that he did not agree with the political views of Johnny Yip because he was too extreme. Apparently, as I have already said, this was the reason he agreed to cooperate with the police by continuing a dialogue with Johnny Yip to facilitate the delivery as arranged. This means despite knowing Johnny Yip had extreme political views, had ammunition and gun parts, he agreed to print more gun parts as part of a conspiracy with Johnny Yip as well as store his ammunition and arms.
I find it hard to believe he agreed in 2021 to print out gun parts yet did not know he was also storing ammunition and explosives for Yip. I find it hard to believe, knowing Yip had extreme political views and had printed gun parts and wanted more to be printed, the 1st defendant was in the dark as to what he was storing in his own home for over a year.
By offering that information to the police, that he did not agree with the extreme political views of Yip, it appears to me that he was trying to distance himself from Yip and the seriousness of the offences. Moreover, he should have questioned why Yip was moving bullets around Hong Kong when he had ostensibly emigrated to Canada a year earlier. I do have my doubts and question his statement to the police that he did not agree with the extreme political views of Yip.
I take into account the fact he agreed to print more gun parts and agreed to facilitate the delivery of 138 bullets for Yip, a man with extreme political views. I take into account he left those bullets in a public place. There is no evidence that he did go on to print more gun parts as instructed, nevertheless there was a conspiracy to make more parts. I also take into account the explosive found could cause serious injury, even death, to a person at the seat of an explosion, if that were to be detonated.
I also distinguish the roles of the 1st and 2nd defendant as far as the 1st charge is concerned. The 2nd Defendant was picking up the parcel for reward. The 1st defendant was told to retrieve the bullets from his home for someone to collect and deliberately left them in a public place, in a stairwell in a public housing estate, without ensuring they did not fall in the wrong hands or ensuring they were picked up by the arranged person.
Sentences
In order to arrive at the appropriate starting point for each offence, I have considered all mitigation put forward, the defendants’ previous clear records and the 1st defendant’s assistance in continuing to communicate with Yip and then the courier that he had arranged, the 2nd defendant.
I have also considered the seriousness of the offences and the fact that the 1st defendant admits all the items were from a man with extreme political views. I am sure there was some nefarious intention behind these charges, but luckily thwarted. This is not a case where the defendants were genuine firearms enthusiasts or war gamers.
I have considered the particulars of each offence, the results of the tests on the explosive substance and firearms found, the number of bullets, the circumstances of the delivery in a public place, the nature of the gun parts both defendants possessed and the agreement or conspiracy between the 1st defendant and Yip.
I find the following starting points appropriate. Having considered the facts of the case and the assistance from the 1st defendant to ensure the delivery took place, I find a discount of 43 per cent or just under appropriate for the 1st defendant. The 2nd defendant pleaded guilty at the earliest opportunity as well and will be entitled to a full one-third discount.
The 1st Defendant
Charge 1, I take a starting point of 9 years’ imprisonment, which I reduce to 5 years and 2 months’ imprisonment. Charge 2, I take a starting point of 9 years’ imprisonment, which I reduce to 5 years and 2 months’ imprisonment. Charge 3, I take a starting point of 6 years’ imprisonment, which I reduce to 3 years and 5 months’ imprisonment. Charge 4, I take a starting point of 6 years’ imprisonment, which I reduce to 3 years and 5 months’ imprisonment.
The 2nd Defendant
Charge 5, I take a starting point of 7 years’ imprisonment, which I reduce to 4 years and 8 months’ imprisonment. Charge 6, I take a starting point of 5 years’ imprisonment, which I reduce to 3 years and 4 months’ imprisonment. Charge 7, I take a starting point of 4 years’ imprisonment, which I reduce to 2 years and 8 months’ imprisonment.
I have considered the totality principle, the circumstances relating to each charge and submissions made. I intend to order the sentences imposed on each defendant to be served concurrently.
Therefore, the 1st defendant is sentenced to a total of 5 years and 2 months’ imprisonment.
The 2nd defendant is sentenced to 4 years and 8 months’ imprisonment.
