HKSAR v. He Honglu

DCCC950/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 950 OF 2009

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Reasons for Sentence

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1. The defendant pleaded guilty to 2 charges of “Dealing in arms without a licence”, contrary to section 14 of the Firearms and Ammunition Ordinance, Cap. 238.  The arms involved are a total of 2,451 stun guns. 

2. At all material times, the defendant was the owner and person-in-charge of Chun Lai Technology Limited (“Chun Lai”) in Hong Kong and another mainland company.  Chun Lai was a client of FedEx, a worldwide air cargo company. 

3. Regarding Charge 1, on 11 July 2008, the defendant hired Fook Hing Express (“Fook Hing”), a Hong Kong-Mainland cross-border transportation company, to transport, inter alia, 28 boxes from Shenzhen to Hong Kong.  The 28 boxes of stun guns arrived at Fook Hing’s Hong Kong office through proper channels on the same day. On the following day (12 July 2008), the defendant instructed Skyone Express Limited (“Skyone”) to collect the 28 boxes of goods from Fook Hing’s Hong Kong office and then store them in Skyone’s warehouse temporarily.

4. Regarding Charge 2, on 12 July 2008, the defendant hired FedEx to transport the 28 boxes of stun guns from Hong Kong to Andorra.  Not knowing the nature of the goods, a FedEx employee went to collect the 28 boxes from Skyone’s warehouse and exported them to a designated address in Andorra by air. 

5. When the consignment reached Andorra, the batch of goods were rejected at the port of entry.  As a result, FedEx returned the 28 boxes of stun guns to defendant in Hong Kong via Spain. 

6. The goods landed in Hong Kong on 17 July 2008.  During Customs clearance, C & E officers opened the 28 boxes at the FedEx Cargo Area in the airfreight terminal and found a total of 2,493 stun guns inside.  The defendant was arrested at the office of Chun Lai on the same day.  In his video interviews, the defendant admitted, under caution, that he had arranged for the relevant transportation companies to import the 28 boxes of stun guns into Hong Kong without a licence on 11 July 2008 and to export the same from Hong Kong to Andorra without a licence on 12 July.

7. After testing, 2,451 stun guns (out of the 2,493) were found to be functioning properly.  Experts confirmed that the output of the said stun guns ranges from 20.70 to 48.04 kilovolts; and that the functioning stun guns are able to stun or disable a human subject, causing the person to lose his/her ability to stand up and rendering him/her immobilised and incapacitated, and left dazed and weak for a period of time.

8. The defendant is a 43-year-old mainland resident.  He has a clear record and pleaded guilty to both charges.  Based on the facts admitted by the defendant, it appears that he was running a legitimate transportation business.  Unlike those typical “Possession of stun guns” cases, there is no evidence to suggest that the stun guns involved in this case were intended for any serious or organised crimes or terrorist acts.  Their output is of a relatively low voltage, which, unlike those high-voltage output stun guns usually intended for unlawful purposes, is not lethal to humans.

9. In the course of mitigation, defence counsel submitted that the defendant believed that stun guns of this type are legal in Andorra. Regrettably, there is no evidence proving their legality in Andorra or otherwise.  Although they are illegal in Hong Kong and mainland China, according to the goods description “Against Wolf”, the saidstun guns are intended for self-defence use by women.  Moreover, the goods owner had told the defendant that they were ｢防狼器｣ instead of stun guns.

10. I accept that the defendant is neither a hardcore criminal nor is he a member of a crime syndicate.  He committed the present offences probably due to his ignorance of the laws in Hong Kong.  As the owner and person-in-charge of a transportation company, he has the duty to ascertain the legality of his clients’ goods before shipping them anywhere.  This is what the defendant did wrong in this case; he failed his duty of due diligence.  On this basis, I am prepared to distinguish this case from the typical “Possession of stun guns” cases.

11. I consider that the defendant’s wrongdoing amounted to a technical breach of the relevant statutes.  Furthermore, the defendant has all along been co-operative with the Police and has demonstrated his willingness to shoulder his responsibilities.  As a mainland resident, he voluntarily came to Hong Kong to answer police bail at regular intervals since his arrest in July 2008 and until August 2009 when he was charged.  The defendant has even brought the owner of the stun guns (a Mr Zhu) to Hong Kong to assist the police investigation.

12. Mr Chui submitted that there are no sentencing authorities the facts of which are similar to the present case.  Prosecuting counsel Miss Chan shared the same view.  I note that the defendant has been remanded in custody for almost 5 months since 27 August 2009.  I believe the defendant has been sufficiently punished and has learned his lesson.  In the circumstances, I consider it appropriate to impose a sentence which would allow the defendant to be released immediately.  I adopt a starting point of 7½ months imprisonment for each charge.  One-third discount is given for his guilty pleas.  The sentence is therefore 5 months imprisonment for each charge.  Having considered the totality principle, I order that the sentences for both Charges 1 and 2 to run concurrently.  Thus, arriving at a total sentence of 5 months.