HKSAR v. Chung Suet Ying

[English Translation - 英譯本]

HCCC 164/2022 & 255/2023 (Consolidated)

[2024] HKCFI 2575

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASES NO 164 OF 2022 AND

NO 255 OF 2023 (Consolidated)

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BETWEEN

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REASONS FOR SENTENCE

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1.Chung Suet-ying, the defendant, pleaded guilty to one count of possession of arms and ammunition without licence, contrary to section 13(1)  and (2)  of the Firearms and Ammunition Ordinance, Cap. 238, Laws of Hong Kong.

Particulars of the offence

2.Chung Suet-ying, on the 20^th day of December, 2019, at Flat 2, 10^th Floor, Block C, Jade Plaza, No. 3 On Chee Road, Tai Po, New Territories, in Hong Kong, together with Su David, had in their possession arms and ammunition, namely, one rifle, 6 rifle magazines containing 211 rounds of ammunition and 2 pistol magazines containing 30 rounds of ammunition, without a licence.

Admitted facts

Background

3.Starting from June 2019, due to the Government’s proposed amendments to the Fugitive Offenders Ordinance, Cap. 503 of the Laws of Hong Kong and related legislation, public order events were held in many places in Hong Kong. Every weekend, there were large-scale public meetings or processions involving thousands of demonstrators. The events often turned into city-wide riots. Among the demonstrators, some radical opposition organizations often took the lead in committing various offences, such as road blocking, criminal damage and arson, etc., which added to the chaos of the crowd and led to uproar among the demonstrators, resulting in further violent clashes.

4.A radical opposition group conspired and plotted to kill police officers with arms and explosives during a public procession to be held by the Civil Human Rights Front on Hong Kong Island on 8 December 2019 (“the 12.8 Plan”).  Su David, the gunman in the 12.8 Plan, was in possession of a pistol, a rifle and a large amount of ammunition.  He was assigned to shoot police officers during the procession.

5.Chung Suet-ying was Su David’s girlfriend at the material time.

6.The conspirators, including Su David, intended to place two bombs, one big and one small, made of 10 to 20 kilograms of explosives, at a section of Hennessy Road along the route of the public procession.  The original plot was that members of the “Dragon Slaying Brigade” would damage pro-government or mainland-capital-owned shops on the street to lure the police to the scene.  Once the police arrived, the smaller bomb (powerful enough to kill or cause life-changing injuries to people over a 100-metre radius)  would be detonated.  At the same time, Su would shoot the police officers with an AR-15 rifle from an elevated position while hiding in a nearby building.  This was intended to cause panic among the police officers and drive them closer to the location of the larger bomb.  The larger bomb (powerful enough to kill or cause life-changing injuries to people over a 400-metre radius)  would then be detonated to cause death or serious injuries to the police officers.  In accordance with what had been originally planned, after the police officers were killed, the conspirators would pick up the service revolvers issued to those officers for their own use.

7.On 8 December 2019 (i.e. the very day of the original 12.8 Plan), the 12.8 Plan did not materialise because the other conspirators were arrested.  Su was supposed to report to the police station for another case, for which he was arrested in early 2019.  In relation to that case, he had been granted court bail since 27 February 2019.  One of the bail conditions required him to report to North Point Police Station from Monday to Friday.  He did not report to the police station on that day, and went into hiding since then.

8.On 16 December 2019, Chung and Su moved into Flat 2, 10^th Floor, Block C, Jade Plaza, No. 3 On Chee Road, Tai Po, New Territories, Hong Kong (“the hideout”). They brought the pistol, the AR-15 rifle and the large amount of ammunition in question to the hideout.

Interception and house search

9.On 20 December 2019 at around 9:20 p.m., Sergeant 5835 and his team members saw Su and Chung leaving Block C of Jade Plaza, so they followed the two and stopped them outside Shop No. 5, Ground Floor, Jade Plaza. When Sergeant 5835 grabbed Su’s right arm, Su suddenly turned around and struggled to escape, at the same time drawing a pistol from his waist area and loading it.  He pointed the pistol towards Sergeant 5835 and fired a shot. At that material moment, Sergeant 5835 pressed Su’s right arm down in time, and the shot missed.  The police officers then subdued and arrested Su.

10.The police conducted a house search at the hideout on 21 December 2019 at about 12:35 a.m. During the search, the police found the following items hidden underneath the bed in the bedroom:

(1)  a rifle (with a sighting device attached)  (“rifle”);

(2)  a rifle magazine containing 61 rounds of ammunition (“magazine A”);

(3)  5 rifle magazines, each containing 30 rounds of ammunition, for a total of 150 rounds of ammunition (collectively referred to as “magazine B”);

(4)  2 pistol magazines, each containing 15 rounds of ammunition, for a total of 30 rounds of ammunition (collectively referred to as “magazine C”);

(5)  a rifle belt; and

(6)  a black bulletproof vest.

11.In sum, the police seized one rifle, six rifle magazines containing a total of 211 rounds of ammunition, and two pistol magazines with a total of 30 rounds of ammunition from the hideout.

12.Chung did not hold a licence for possessing such arms and ammunition.

Forensic examination

13.The Forensic Firearms Examination Division of the Police examined the said rifle, confirming it to be normal-functioning, capable of switching between semi-automatic and automatic modes and discharging 5.56 x 45mm calibre ammunition. When the rifle is in the semi-automatic mode, the shooter has to actuate the trigger each time a shot is to be fired, so as to utilise the energy generated from firing to complete the cycle of fire; when the rifle is in the automatic mode, the shooter needs only to keep the trigger depressed for loading, firing, extraction and shell ejection if the loading system is loaded with ammunition.

14.The Forensic Firearms Examination Division of the police also examined other items, with findings as follows:

(1)  Magazine A can hold 60 rounds of 5.56 x 45mm calibre ammunition, suitable for the use of the said rifle;

(2)  Each of magazine B can hold 30 rounds of 5.56 x 45mm calibre ammunition, suitable for the use of the said rifle;

(3)  Each of magazine C can hold 15 rounds of 9 x 19mm calibre ammunition, which is suitable for discharge from pistols of a similar calibre (including the one Su used to shoot SGT 5835, as mentioned above).

Cautioned statement

15.The police took a video-recorded interview with Chung, who under caution mentioned, inter alia, a number of matters as follows:

(1)  Chung was a designer by profession.

(2)  Chung and Su were lovers, introduced to each other by Chan Yuk-lung in August 2019. Su was a lifeguard by profession.

(3)  Su moved to the hideout due to a verbal dispute with his family and asked her to live with him.

(4)  The two of them moved into the hideout at Jade Plaza in Tai Po on 16 December 2019, and she confirmed the screenshots of the CCTV footage.

(5)  After Su was stop-and-searched by the police and he fired a shot, she returned to the hideout out of panic to pack and left for the residence of a friend named “Ah Lung”.

(6)  She alleged that the arms found in the hideout belonged to Su and that they were probably given to him by his friend So Hon-to Stephen.

(7)  Su came to know So Hon-to Stephen in junior secondary school. So Stephen was about 28 years old and the two of them played war games together.

(8)  She alleged that she had no idea about the use of the arms in question. It was probably So Stephen who gave the bullets to Su.

(9)  So Stephen is currently on remand in Lai Chi Kok for a case of conspiracy to murder.

Defendant’s background

16.According to the submissions by Mr Charles J. Chan and Mr Vincent C.C. Chan, counsel representing Chung, she is 33 years old and her father is aged 73.   Her father, a retired bus driver, is hearing impaired.  Her mother, aged 63, is a part-time worker. She suffers from chronic illnesses including liver disease, migraine and tonsil problems, and has to take medication every day. Her mother is currently the breadwinner of the family.  Chung has an elder brother, who has moved out of the parents’ home and is unable to support them.  The family can hardly make ends meet as she is now in prison.

17.The two counsel submitted that Chung had depressive symptoms because she was bullied at school in her childhood.  Her condition deteriorated when she was 19 because she was deceived by her lover.  Although she had thought of self-harm at that time, she did not seek treatment eventually.  In 2014 she went to the Tuen Mun Mental Health Centre for treatment.  At that time, she was diagnosed with adjustment disorder.  Her condition improved slightly after treatment, but it became worse in the past few years due to psychosocial stress in various aspects, including financial, relationship and accommodation issues.  Therefore, she sought consultation from a private doctor.  However, she gave up after a few visits due to the expensive consultation fees.

18.Chung had been remanded in custody for the present case since November 2020, and the CSD arranged for her to receive treatments at Tuen Mun Mental Health Centre again. During the period of jail custody, Chung had low spirit and suffered from anxiety. She started to receive treatments in May 2021. At that time, she was diagnosed with mixed anxiety and depressive disorder and had to attend regular follow-up treatments at Tuen Mun Mental Health Centre. However, her condition deteriorated.  In the past few months, her condition was on the slide and her anxiety even aggravated. In the end, the doctor’s record of diagnosis showed that although Chung displayed symptoms of anxiety, she did not have so much as psychosis.

19.Chung has a criminal record of unlawful assembly in 2018, for which she was sentenced to four weeks’ imprisonment.  The two counsel asked the Court not to enhance the sentence on the basis of this record, as the offence of unlawful assembly at the time did not involve any violence and was not the same as the charge of which she was now convicted.

20.The two counsel also provided detailed information about the books Chung read, the courses she took and the certificates she attained during her time in prison. It was submitted that she had already reformed herself, enriched herself by continuing studies, and participated in activities held by Christian organizations.

Mitigation

21.The two counsel pointed out that the biggest mitigating factor was the guilty plea. Both counsel also raised the following points for my consideration:

(1)  There is no evidence that Chung had direct contact with the rifle and the ammunition;

(2)  There is no information to show that Chung was aware of the “12.8 Plan”, nor did she know Su’s intention of possessing the guns and bullets;

(3)  Although Chung admitted to the possession of the rifle and bullets, there is no information to show that she had used them;

(4)  There is no information to show that Chung had carried the rifle and bullets, nor is there any information to indicate that Chung intended to use the rifle and bullets for unlawful purposes.

22.Both counsel emphasized that the rifle and bullets seized belonged to Su. Although these items were in Chung’s possession at the time, Chung did not purchase them and she was not the owner of the guns and bullets either. Chung did not come into contact with or handle those items. She did not hide those items either after Su’s detention by the police. The two counsel also emphasized that Chung had not been aware of the existence of the guns and the bullets in the beginning. She only found out later that Su was in possession of the rifle and bullets. Chung was not the instigator of the incident, and committed the offence in the present case only under the influence of Su, her boyfriend. The defendant herself had also written a detailed mitigation letter to express her remorse and describe her own background.

23.Chung’s mother, maternal uncle, fifth maternal aunt and two friends have written mitigation letters that give an account of Chung’s personal background. She has experienced many setbacks in life since childhood, and the reason for the commission of the present offence is that she had fallen wrongly for Su. Since her detention, she has learnt what it feels like to lose one’s freedom and the importance of being law-abiding.

24.Chung has not asked for a lenient sentence but only a punishment she deserved, a point which I admire. Her family and friends, on the other hand, asked the Court to be as lenient as possible in sentencing her. They all mentioned that Chung was caring, filial, willing to help others, and in particular loving towards little animals, and they therefore asked me to be as lenient as possible.

25.I have also received a mitigation letter from a pastor surnamed Poon of the Christian Prison Pastoral Association Limited. In the letter, he mentioned that he had been preaching in the prison and had known Chung for three years. He found her to be remorseful and willing to turn over a new leaf.  Pastor Poon asked me to consider giving her a chance to live a new life for early reintegration into society.

26.In relation to this type of offence, both counsel referred to Chan Chi Fun[1](transliteration)  and Tsiang On Yan[2]for my reference.As pointed out in the cases, possession of arms and ammunition is a serious offence.  Generally, the starting point is 12 years, which becomes 8 upon a guilty plea.  In Chan Chi Fun, the Court of Appeal  put forward seven mitigating or aggravating factors: (1)  the type of arms and ammunition involved; (2)  whether the defendant physically carried the arms and ammunition; (3)  whether the arms were loaded; (4) whether the arms had been used; (5)  whether the defendant intended to use the arms for unlawful purposes; (6)  whether the arms and ammunition were properly stored or whether they were easily accessible by offenders; (7)  whether the defendant had a clear record.

27.The Court of Appeal also pointed out that the level of sentence depended on potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the facts of the case, the defendant’s background, and the possibility of the arms and ammunition in question being used. The two counsel submitted that if the Court accepted that the defendant committed the present offence for maintaining the relationship with her family members or her lover, or that the defendant was used by her family members or her lover, the Court may exercise discretion in giving a discount to the sentence. The defence relied on three cases: Lai Kam Yee Teresa[3], Chiu Kit[4]and Chan Wai Yan[5].

28.The last area concerns the discount. Both counsel accepted that because the defendant did not plead guilty at the earliest opportunity but rather after a trial date had been set down and before trial, as a general rule the discount on sentence should be 20% to 25%, in accordance with precedents. Both counsel also mentioned that the charge Chung currently pleaded guilty to was the original charge against her (i.e. “common possession”)  and not the more serious offence of possession of arms to endanger life. Subsequently the prosecution charged Chung with a more serious offence on 4 June 2021, to which she did not plead guilty at the preliminary inquiry. The case was later set down for trial. Prior to the second case management hearing, Chung pleaded guilty to the “common possession” offence after bargaining with the prosecution. Therefore, she satisfied the conditions for a discount of 20% to 25% on sentence. Counsel submitted that Chung’s guilty plea saved a substantial amount of the Court’s time and resources, meaning that the need to discuss the admitted facts was dispensed with, and therefore requested a sentencing discount of 25%.

29.Both counsel requested that I consider adopting a starting point of less than ten years and give a discount of 25%. They both recognised that this was a very serious offence and the sentence had to serve a deterrent effect. Nonetheless, they submitted that Chung’s time in custody was marked by good conduct, the chance of her reoffending was slim. They urged the Court to give Chung a chance for turning over a new leaf and grant her an additional discount.

Consideration in sentencing

30.Regarding the sentence, possession of arms and ammunition without a licence is a very serious offence. Generally speaking, a person convicted of this offence on indictment is liable to imprisonment for 14 years. As this offence poses a grave danger to the public and society at large, the Court must take this into account when considering sentence and a deterrent sentence is inevitable.  

31.Referring to the seven factors in Chan Chi Fan:

(a)  Firstly, what types of arms and ammunition were used in the case. According to the evidence and the admitted facts, this present case involved an AR15 rifle, 6 magazines with a total of 211 rounds of ammunition, and 2 pistol magazines with 30 rounds of ammunition. Compared with other similar cases, this case is much more serious.

(b)  Secondly, although the defendant was not carrying the arms and ammunition on her person, the arms and ammunition were simply placed under the bed in the hideout and were not covered or locked.

(c)  Thirdly, as to whether the arms were loaded, there is no evidence in the present case to show that the arms in question were loaded.

(d)  Fourthly, as to whether the arms were used, there is also no evidence in the present case to show that the defendant had used the arms in question.

(e)  Fifthly, whether there was any intention to use the arms for unlawful purposes. There is indeed no evidence in the present case to show that the defendant intended to use the arms for unlawful purposes. However, I am of the view that the defendant was hiding with Su, she must have known that Su was trying to evade from police pursuit, and that when Su drew the gun and shot at a police officer, Chung was also present. This is the factual background. I am not saying that Chung assisted Su to shoot at the police or assisted Su to evade police pursuit, but it must be taken into consideration that Chung knew that Su was evading police pursuit and that she had witnessed Su shooting at the police, and this is why Chung was charged with the offence of possession of arms and ammunition without licence.

(f)  Sixthly, it is whether the arms in question were properly stored. The arms and ammunition in question were not locked and were casually placed under the bed. It is obvious that they were not properly stored, and if any lawbreakers were aware of the existence of the arms and ammunition, they could have used them for unlawful purposes at any time.

(g)  Lastly, on the question of whether there is a criminal record, Chung has a criminal record of four weeks' imprisonment for unlawful assembly.

32.Taking into account the seven factors above and the information before me, I accept the submission made by the two defence counsel that Chung committed the offence because of her relationship with Su, her boyfriend. There is no evidence to show that Chung would personally use the arms and ammunition involved. However, it must be taken into account that the arms and ammunition involved were in large quantities, not properly stored, and that Chung still hid with Su despite her being aware of what Su was doing.

33.Taking into account Chung’s commission of the offence was the desire to maintain her romantic relationship with Su, the appropriate starting point is one of 10 years. Although Chung has a criminal record, I am of the view that the record of unlawful assembly differs significantly from the present charge in terms of nature. Therefore, I will not enhance her sentence on the basis of her having such record; the starting point remains one of 10 years.

34.In terms of discount, Chung was originally charged with possession of arms and ammunition without licence. The prosecution later changed the charge to possession of arms endangering life, which was more serious.  The defendant therefore pleaded not guilty. Subsequently, at the plea bargaining, the prosecution conceded and changed the charge back to the original one.  Therefore, there is no further discount to the sentence and it remains at 25%.

35.Taking 10 years as the starting point, with a 25% discount, the sentence should be seven years and six months. I accept that the defendant is genuinely remorseful and is penitent for the commission of the offence. The Court also accepts that the defendant has made positive changes during her detention and that the likelihood of her reoffending similar offences in the future is low. However, given the more serious nature of this case, a deterrent sentence must be imposed to make it known to the public that they cannot possess arms and ammunition at will. Having considered the defendant’s turning over a new leaf, however, an additional reduction of two months is granted for her early reintegration into society.

Sentence

36.For the above reasons, I sentence Chung Suet-ying, the defendant, to seven years and four months' imprisonment on the charge.

Ms Juliana H. L. Chow, Counsel-on-fiat, Mr Edward W. C. Lau and Mr W. K. Ng, Senior Public Prosecutors, of the Department of Justice, for the prosecution

Mr Charles J. Chan and Mr Vincent C. C. Chan, instructed by Tang & Co., Ivan, for the defendant

Translated by the Court Language Section of the Judiciary and vetted by

Mr P Y Lo, Barrister-at-law.