HKSAR v. Fang Shanzhong

DCCC535/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 535 OF 2010

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Reasons for Sentence

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1.The defendant is convicted upon his own plea of a charge of possession of arms without a license, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap.238, Laws of Hong Kong.

2.The particulars of offence read:

“Fang Shanzhong, on the 3rd day of April, 2010, at Baggage Check Point, Baggage Hall, L2, Terminal One (Restricted Area), Hong Kong International Airport, Chek Lap Kok, Lantau, in Hong Kong, had in his possession a quantity of arms, namely 20 stun guns, without a licence.”

3.The facts admitted by the defendant reveal that on 3 April 2010, the defendant, a mainlander, went to Hong Kong International Airport in order to take flight number CX777 to Jakarta, Indonesia.

4.X-ray security screening of the defendant’s luggage revealed that there were articles like stun guns and adaptors inside. The case was therefore reported to the police who conducted a thorough search of the defendant’s baggage and found 20 stun guns and 20 adaptors inside.

5.Under caution, the defendant said that he intended to take the stun guns to Jakarta for his friends.

6.Subsequent examination of the stun guns by the Police Communications Office revealed that 19 of the stun guns were functioning properly with 15,220 volts to 81,050 volts output; and one of the stun guns was in malfunction.

7.According to the defendant’s antecedent, he is now 38 years old. He does not have any previous criminal record in Hong Kong. He was born in Fujian. He worked as a farmer in Fujian and lived with his family members in Fujian.

8.In mitigation, the defendant’s lawyer confirmed the defendant’s antecedent, but added that the defendant is a father of two daughters, one 16 and one 11.

9.It was also submitted that the defendant came from Fujian the day before the defendant was arrested. The defendant then came to Hong Kong via Huanggang and proceeded to the Hong Kong International Airport direct. On the same day, the defendant was arrested.

10.Two letters were submitted to the court by the defence. One of the letters was from an Indonesian company. It was stated in that letter that the defendant purchased 20 stun guns for that company for its security purpose. Another letter was from the defendant’s village committee saying that the defendant used to be a law-abiding citizen and had no previous criminal conviction. It was stated in that letter that the defendant went to Indonesia for business purpose and was entrusted to carry the stun guns to Indonesia.

11.The defendant being a farmer, it puzzles me why he switched to do courier business, and indeed, international courier business, by carrying 20 stun guns from the mainland to Indonesia via Hong Kong.

12.Nonetheless, for the purpose of this sentence, I am prepared to accept that the defendant was entrusted to bring 20 stun guns to Indonesia not for any illegal purposes.

13.In mitigation, the defendant’s lawyer submitted three cases, the first being HKSAR v Li Hung Kwan CACC250/2002. The other two cases are both Reasons for Sentence from the District Court. One is HKSAR v Lau Wai Hong DCCC479/2009, sentenced by District Judge Whaley. The other is HKSAR v He Hong Lu DCCC950/2009, sentenced by Deputy District Judge G Lam.

14.In HKSAR v Li Hung Kwan CACC250/2002, the defendant pleaded guilty to, inter alia, possession of arms, namely a stun gun which could generate 35,000 volts. The defendant claimed that he picked up the gun from a pile of rubbish at a construction site four days prior to his arrest, and that he had not used it. On appeal, the Court of Appeal remarked that there was no evidence that the defendant had used the stun gun for unlawful purposes or intended to. The Court of Appeal considered a starting point of 20 months’ imprisonment appropriate.

15.In HKSAR v Lau Wai Hong DCCC479/2009, the defendant pleaded guilty to one charge of possession of arms without a licence, namely a stun gun which could generate 87,000 volts. The defendant had 13 previous criminal convictions, including one previous conviction of possession of imitation firearms. District Judge Whaley considered the Court Of Appeal case in HKSAR v Li Hung Kwan but adopted a higher starting point of 2½ years’ imprisonment because in DCCC479/2009, the defendant did contemplate using the stun gun during his robbery if the victim struggled.

16.In HKSAR v He Hong Lu DCCC950/2009, the defendant pleaded guilty to two charges of dealing in arms without a licence, contrary to section 14 of the Firearms and Ammunition Ordinance, Cap.238 of the Laws of Hong Kong. There were a total of 2,451 stun guns involved in that case. The output of those stun guns ranged from 20,700 volts to 48,040 volts. The defendant was the owner and person-in-charge of a transportation company. He had arranged for the relevant transportation companies to import the stun guns into Hong Kong without a licence, and then to export the same from Hong Kong to Andorra without a licence. Deputy District Judge G Lam said he was prepared to distinguish DCCC950/2009 from other typical “possession-of-stun-gun” cases. He said that the defendant there committed the offences probably due to his ignorance of the laws in Hong Kong. He remarked that the defendant as the owner and person-in-charge of a transportation company had the duty to ascertain the legality of his clients’ goods before shipping them anywhere, and that the defendant failed his duty of due diligence. Deputy District Judge G Lam considered the wrongdoing of the defendant in DCCC950/2009 amounted to a technical breach of the relevant statutes. Deputy District Judge G Lam adopted a starting point of 7½ months’ imprisonment for each of the offences.

17.In the present case, the defendant’s representative asked me to apply the decision in DCCC950/2009.

18.Apart from the aforesaid three cases submitted by the defence, I have also conducted a research on the relevant authorities on sentence.

19.In the R v Lai Chi Fai CACC480/1995, the defendant was charged with the offence of possession of a stun gun without a licence. The stun gun was capable of discharging 4,800 volts in the open air. The defendant claimed that the stun gun had been handed to him by his friend for pocketing four hours before his arrest. There was no evidence as to the use or intended use of that stun gun. The Court of Appeal considered a starting point of 4 years appropriate.

20.In R v Wong Chuen Pong CACC579/1996, the defendant pleaded guilty to, inter alia, one charge of possession of a stun gun without a licence. The stun gun was capable of discharging 60,000 volts. The defendant was intercepted by the police when the defendant was sitting on a bench in the garden at Tsim Sha Tsui East in the early hours. Upon search, the police found the stun gun on the defendant who said he had the stun gun for the purpose of self-defence. The Court of Appeal confirmed the sentence of 2 years’ imprisonment after plea appropriate.

21.In HKSAR v Yung Ting Chun CACC164/1999, the appellant was convicted of possession of arms without a licence. The appellant and his friend were intercepted by the police at Sassoon Road sometime in the afternoon. Upon search, a stun gun was found from the rucksack being carried by the appellant’s friend. The stun gun was capable of producing 75,000 volts. There was no evidence that the stun gun would be used for any illegal purposes. The Court of Appeal confirmed the starting point of 2½ years’ imprisonment.

22.In HKSAR v Wong Wing WongCACC214/2002, the appellant pleaded guilty to possession of a stun gun which had a voltage of 20,000 volts. The appellant was arrested at the border checkpoint when the stun gun was found. He claimed that he bought the gun in the mainland, and the purpose for which he bought the gun was for self-protection because he had been robbed in the mainland before. The Court of Appeal adopted a starting point of 18 months’ imprisonment.

23.In HKSAR v Fan Kwok Wai CACC264/2005, the defendant was convicted upon his own plea of, inter alia, possession of three stun guns without a licence. The three stun guns were located in a combination safe in the defendant’s bedroom. They were capable of discharging 20,403 volts, 10,000 volts and 13,623 volts. There was no evidence of any immediate intent by the defendant to use those stun guns. The Court of Appeal adopted a starting point of 3 years’ imprisonment.

24.In HKSAR v Chik Lung Kong DCCC1249/2009, the defendant pleaded guilty to, inter alia, possession of six stun guns without a licence. The stun guns were capable of discharging voltage which ranged from 28,894 volts to 72,446 volts. District Judge Geiser accepted that the defendant did not intend to use any of the stun guns for any illegal purpose, but the judge remarked that the aggravating feature was the fact that the weapons could quite easily have ended up in the hands of persons who would use them for illegal purposes. District Judge Geiser adopted a starting point of 3 years in DCCC1249/2009.

25.As I have said earlier on, in the present case, I am prepared to accept that the defendant was entrusted to bring 20 stun guns to Indonesia not for any illegal purposes. On the other hand, this case involves 20 stun guns which could generate 15,220 volts to 81,050 volts.

26.There is no tariff for the offence of possession of stun guns. The starting point to be adopted has to be considered in the light of the facts of each case. That said, a deterrent sentence by means of immediate custodial sentence is required for this type of offence.

27.In this connection, I bear in mind the Reasons for Sentence in DCCC950/2009, but I do not think the present offence is merely a technical breach of the relevant statute.

28.Having considered the authorities decided by the Court of Appeal and all the relevant circumstances in the present case, in particular the fact that the defendant did not intend to use any of the 20 stun guns for any unlawful purposes in Hong Kong or Indonesia, I am going to adopt a starting point of 2½ years’ imprisonment.

29.In light of the defendant's guilty plea, I will give him the usual one-third discount. There being no other remarkable mitigation, the resulting sentence is 20 months' imprisonment.