HKSAR v. Lau Wai Hong

DCCC479/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 479 OF 2009

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Reasons for Sentence

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1.The defendant has been convicted on his plea of one charge of possession of arms without a licence, namely that on 26 February this year in North Point he had in his possession an electric stunning device without a licence. 

2.This stun gun was examined by the Police Telecom Inspector and it was found that the peak-to-peak pulsating voltage generated across the resistor load was measured as 87.30 kilo-volts.  The prosecution has confirmed that that translates into 87,000 volts which is the more useful way of stating its capacity for present purposes because it enables a straight comparison to be made with all the previous authorities on sentence that I have referred to, in which the capacity of the stun guns which were possessed are stated simply in volts.

3.The defendant is 36 years of age and he has a record of 13 criminal convictions arising from five appearances in court, which include a previous conviction in January 1998 for possession of imitation firearms for which he was sentenced to 9 months’ imprisonment.  Apart from that offence which is directly relevant, the other previous convictions are not relevant to the present offence, although I do note that there is one offence which involved the use of violence, namely assault occasioning actual bodily harm which was however in 1995, some 14 years ago.

4.Mr Leung has referred me to two previous cases in both of which the defendant was sentenced to 1 year’s imprisonment for possession of a stun gun after his plea.  Those cases are not contemporary, they go back to 1998 and 1995.  I have referred in particular to HKSAR v Li Hung Kwan [2003] 1 HKLRD at page 204.  The Court of Appeal in that case was again concerned with the consideration of the appropriate sentence to impose for possession of a stun gun following a plea of guilty.  The report referred to numerous previous cases and the sentences imposed for possession of stun guns of varying capacities (including both of the cases drawn to my attention by Mr Leung)

5.In that case, the stun gun in question generated 35,000 volts when operated in the air and 12,000 volts if applied to a human body.  The defendant claimed that he had picked up the gun from a pile of rubbish at a construction site a few days before his arrest, and had not used it.  The court found that in the absence of an enquiry into the facts, it had to proceed on the basis that the defendant had picked it up on a construction site and had not used it.  The court described the stun gun as being capable of discharging a voltage which can be described as “in the middle to lower range”. 

6.The first point to note is that the stun gun in the present case is of a higher capacity than the stun gun in that case was: in the present case it is capable of discharging a voltage of some 87,000 volts, presumably when used in the air; I would think that must qualify as being in the middle to higher range as opposed to the middle to lower range of the weapon which the court was dealing with in Li Hung Kwan. 

7.The effect that the gun would have produced if used on a person are carefully described in the summary of facts and the most important fact is that the effects are generally considered non-lethal for healthy persons, permanent damage is not expected and it is for that reason that stun guns constitute a considerably less serious weapon than firearms properly so-called.

8.After considering the sentences passed in all the previous cases, the Court of Appeal in Li Hung Kwan stated that, “In the absence of evidence which may suggest that it will be used for some illegal purpose, we are of the view that the starting point should be 20 months’ imprisonment”, which after reduction by one-third on account of the guilty plea resulted in a sentence of 1 year’s imprisonment. 

9.It is important to note that the facts in the present case are different.  I accept what the defendant has said both in his record of interview and again repeated through his solicitor today, that he owed debt collectors approximately $100,000, the debt collectors had threatened to hurt and even kill him.  He had bought the stun gun for $170 in Shenzhen the day before he was arrested, and I accept that his initial purpose in buying it was to use in self-defence if he was attacked by any of the debt collectors. 

10.However, the defendant went on to volunteer the information in his video-recorded interview that on the day in question, 26 February, he went to North Point to commit robbery though he had no intention to use the stun gun to do so, “he only intended to use it when the victim struggled”.  The defendant has today confirmed that that is what he said to the police and has repeated that he only intended to use it when the victim struggled and he added that he was not expecting those circumstances to arise.

11.The clear effect of the defendant’s admission is that he came to North Point to commit a robbery and he had no intention to use the stun gun unless the victim struggled.  If the victim struggled, he would use the stun gun.  That puts this case in a considerably more serious category than the case of Li Hung Kwan in which the Court of Appeal clearly stated that: “In the absence of any evidence which may suggest it will be used for some illegal purpose the starting point should be 20 months’ imprisonment.”

12.In the present case the defendant did contemplate using the stun gun during this robbery if the victim struggled. Bearing that fact in mind, as also the higher capacity of the stun gun in the present case, in my view the appropriate starting point should be no less than 2½ years’ imprisonment.

13.I was seriously considering adopting a starting point of 3 years’ imprisonment, however in all the circumstances of this case I adopt a starting point of 2½ years’ imprisonment after trial.  For his plea of guilty and his co-operation with the authorities, he is entitled to the normal one-third discount which reduces the starting point of 2½ years to 20 months’ imprisonment. 

14.There is nothing else that has been advanced in mitigation or about the defendant’s personal circumstances which merit any further discount in my view, so the sentence I impose on the defendant is 20 months’ imprisonment.