HKSAR v. Fan Kwok Wai

CACC264/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 264 OF 2005

(ON APPEAL FROM DCCC 468 OF 2005)

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BETWEEN

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Before : Hon Stuart-Moore VP, Stock JA and McMahon J in Court

Date of Hearing : 27 September 2005

Date of Judgment : 10 October 2005

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J U D G M E N T

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Hon McMahon J (giving the judgment of the Court) :

1.On 25 May 2005 the 37-year-old appellant pleaded guilty before Judge Chua in the District Court to charges of trafficking in dangerous drugs, contrary to section 4(1)(a) and (3) of the Dangerous Drugs Ordinance (the 1^st charge); possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the same Ordinance (the 2^nd charge); possession of an apparatus intended for the inhalation of a dangerous drug, contrary to section 36 of that Ordinance (the 3^rd charge); possession of a Part I poison, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poison Ordinance (the 4^th charge); possession of arms without a licence, being three stun guns, contrary to section 13 of the Firearms and Ammunition Ordinance (the 5^th charge) and possession of a prohibited weapon, being two extendable steel batons, contrary to section 4 of the Weapons Ordinance (the 6^th charge).

2.The appellant received full credit for his pleas of guilty in respect of these offences.  On the 1^st charge he was sentenced to 20 months’ imprisonment; on each of the 2^nd, 3^rd and 4^th charges, he was sentenced to two months’ imprisonment; on the 5^th charge he was sentenced to 32 months’ imprisonment and on the 6th charge to four months’ imprisonment.

3.The sentences imposed in respect of the offences the subject of the 1^st to the 4^th charges were ordered to run concurrently with each other.  Two months of the sentence imposed in respect of the 6^th charge were ordered to run consecutively to the sentence imposed in respect of the 5^th charge; and 14 months of the sentence imposed in respect of the 1^st charge was ordered to run consecutively to the sentences imposed in respect of the offences the subject of the 5^th and 6^th charges.  That resulted in a total sentence of 48 months’ imprisonment.  

4.On 30 August 2005, the appellant was granted leave to appeal against the sentence imposed in respect of the 5^th charge.  He appeared unrepresented before us.  His complaint concerning the sentence is that it is too severe.

5.The facts of the case were quite straightforward.  The police had raided the appellant’s flat in Mongkok.  He was found there with his mother and a friend.  The premises were searched and the items the subject of the various charges were found.  The three stun guns, the subject of the 5^th charge, were located in a combination safe in the appellant’s bedroom together with a large part of the drugs the subject of the other charges. 

6.In imposing the sentence of 32 months’ imprisonment in respect of the 5^th charge, the judge adopted a starting point of four years’ imprisonment.

7.In arriving at that starting point, she pointed out that weapons of this sort are dangerous and that as the appellant was addicted to ketamine and was a member of the Sun Yee On triad society, the risk of the weapons falling into the wrong hands was a real one.  She took into account that the appellant possessed three of the weapons as well as two steel batons and expressed scepticism as to the appellant’s claim he possessed the weapons for self-defence.

8.In HKSAR v. Li Hung Kwan [2003] 1 HKLRD 204, this court reviewed a number of authorities relating to sentences imposed for the possession of stun guns.  It is plain from those authorities that the sentence to be imposed for possession of a weapon of this sort depends very much on the circumstances of the individual case.  There is no tariff for the offence. 

9.Important considerations which often arise are, firstly, the power of the weapon, that is, what level of voltage it is capable of discharging, and secondly, whether there is evidence the offender or some other person may use the weapon for an unlawful purpose or to facilitate an unlawful activity.  In this regard, we agree with the judge that, even though there may be no present intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such a purpose, that is also a factor which will result in a higher starting point of sentence. 

10.The present weapons were capable of producing charges of 20,403 volts, 10,000 volts and 13,623 volts respectively.  That is a medium range of voltage for weapons of this sort.  But the appellant possessed three of the weapons together with two extendable steel batons; he was a drug trafficker at the time and kept the weapons in his bedroom safe along with his stock of drugs.

11.On that basis and given also the appellant’s triad connections, there was obviously a real risk that the three stun guns would be used for an unlawful purpose or fall into the wrong hands.  The appellant’s possession of three such weapons in those circumstances is in the upper range of seriousness for this offence.

12.Nevertheless, we do not think it warrants a starting point of four years’ imprisonment.  In R. v. Lai Chi Fai,(unrep. Crim. App. No.480 of 1995), the appellant (who was at the time on bail for a robbery offence) was found in a public street carrying a stun gun in company with another person carrying an imitation firearm.  On those facts, this court thought the appropriate starting point to be four years’ imprisonment.  The facts of the present case are not as serious.  The weapons, although there were three of them, were kept in the appellant’s domestic premises.  Nor was there any evidence of any immediate intent by the appellant to use the weapons.  We think an appropriate starting point to be three years’ imprisonment.  That, on the basis of the appellant’s plea of guilty and in the absence of any other mitigation, is reduced to 24 months’ imprisonment.

13.That is not, however, the end of the matter.  All the sentences imposed are subject to this appeal pursuant to the provisions of section 83I(2) of the Criminal Procedure Ordinance, and we are bound also to reconsider the question of totality.

14.In regard to the sentence imposed in respect of the two extendable steel batons, the subject of the 6^th charge, the circumstances of their possession by the appellant equally suggests a real risk of their use for a purpose connected to the appellant’s drug trafficking, or of their use by the appellant or some other person for an unlawful purpose.  Given also that these are both purpose built weapons, are capable of being carried in a concealed manner and can inflict serious injury, in our view, the starting point taken by the judge was manifestly inadequate.  An appropriate starting point of sentence for the 6^th charged offence is 15 months’ imprisonment.  That, after mitigation, is reduced to 10 months’ imprisonment in place of the four months imposed by the judge below.  We shall not interfere with the other individual sentences.

15.The total sentence of four years’ imprisonment imposed by the judge was appropriate.  We might add however that the drug offences (in charges 1 to 4) were quite distinct offences from the weapons offences (in charges 5 and 6) and we do not see any basis, subject to considerations of totality, for any part of the sentences for the two groups of offences to be served concurrently.

16.Accordingly, we allow the appeal to the extent that the sentence imposed in respect of the 5^th charged offence is set aside and substituted with a sentence of 24 months’ imprisonment.  The sentence of four months’ imprisonment imposed in respect of the 6^th charged offence is set aside and substituted with a sentence of 10 months’ imprisonment.  We order that six months’ of the sentence imposed in respect of the 6^th charged offence be served concurrently with the sentence imposed in the 5^th charged offence.  The other orders of the judge as to sentence remain undisturbed except that we order that the sentences imposed in respect of the 5^th and 6^th charged offences be served wholly consecutively to the sentences imposed in respect of the 1^st, 2^nd, 3^rd and 4^th charged offences.  That results in the same totality of sentence of four years’ imprisonment.

Ms Mary Sin, SADPP of the Department of Justice, for HKSAR

Applicant in person, present