HKSAR v. Choy Chi Wai Playboy

DCCC 1345/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1345 OF 2010

----------------------------------------------------------

-----------------------------------------------------------

------------------------------------------

Reasons for Sentence

-------------------------------------------

1.The Defendant pleads guilty to 1 count of “Common Assault”, contrary to section 40 of the Offences against the Person Ordinance, Cap. 212, and 1 count of “Dealing with a firearm with reckless disregard for the safety of others”, contrary to section 22 of the Firearms and Ammunition Ordinance, Cap. 238.

2.The Defendant was a security guard employed by Guardforce Limited. He was licensed to carry shotgun and on 3 October 2010, he carried with him a Remington 870 Magnum Shotgun when he was on duty guarding the collection of cash at the HMV shop in Causeway Bay, at around 8:50 pm.

3.The Defendant’s colleague one Mr. Chan Yick-lung, who was not on good terms with the Defendant, was also on duty. Unfortunately, the two quarrelled again and upon seeing Chan throwing some receipts onto the floor in front of him, the Defendant threw a barcode printer at the fore-head of Chan. There were then some pushes between the two and in the commotion, the Defendant held up the gun at waist level and pointed it at Chan. Chan challenged the Defendant by daring him to open fire. The Defendant cocked the gun and released the safety catch and upon seeing this, Chan pushed the barrel of the gun away and grabbed the Defendant from behind. During the struggle, the gun was discharged when it was pointing at the ceiling and the ceiling was damaged with a hole of about 3 cm as a result. They continued to struggle with each other until they were separated by police officers.

4.Under caution, the Defendant denied that the shooting was intentional.

5.The Defendant is now 36 years old, he had been working in security companies since 1989. He worked for Guardforce Limited for 7 years until the commission of the present offence. He has a clear record. He has a son of 10 years old from his previous marriage who is now staying with his mother. According to the Defendant, he has also a daughter of 7 years old from the present marriage. He is the sole breadwinner of his family and he also contributes HK$4,000 per month to his previous wife and son. He is living together with his old aged mother who is of poor health.

6.Undoubtedly, the Defendant had good performance in his work. Two of his previous employers paid high regard to his working performance and in a letter written in 2003, his employer described the Defendant as “a conscientious, hardworking, efficient and responsible person.” Sadly, it is nearly for sure that the Defendant will no longer be able to work in this field after the conviction.

7.Mr. Lee, solicitor for the Defendant, submitted several letters written by Legislative Councillors in mitigation for the Defendant. In the letters, it was stated that the Defendant was a committee member of the Guardforce Staff Trade Union and he was active in his contribution towards the trade union by bringing together the colleagues of Guardforce Limited and fighting for lawful and reasonable benefits for them. They said the Defendant is now very remorseful.

8.Mr. Lee also submitted a collection of 220 signatures of the Defendant’s colleagues pledging for leniency for the Defendant. He submitted that the Defendant committed the offences out of character because of momentary impulse.

9.In respect of the second charge, there are not many precedents that I can refer to in considering sentence. In R v Chan Sik-ping[1] , a drunken off-duty police sergeant used his service revolver to force a taxi driver at gun point to lie upon the ground and fired 3 shots one of which hit the windscreen of a goods vehicle. Noting that the defendant was a man of considerable service in the Police Force and had received commendation, the Court of Appeal nevertheless viewed that in carrying his gun he must behave in a responsible manner and found that a sentence of 2 ½ years’ imprisonment was a proper sentence.

10.Although the Defendant here was not a police officer, as he was licensed to carry the lethal weapon, he was entrusted by the public to carry it in discharge of his duty and he must assume the same degree of responsibility as a police officer when carrying a gun. At the heat of a quarrel, it would be extremely dangerous to release the safety catch and cock the gun pointing it at somebody. By so doing the Defendant had obviously disregarded the personal safety of others, particularly in a place where many passers-by would be around and it was only fortunate that there was no one being hurt in the present case.

11.This offence attracts a maximum sentence of imprisonment for 7 years and for the present case, whilst I accept that the discharge of the shotgun might not be intentional, an immediate custodial sentence is nevertheless inevitable.

12.The Defendant had lived his life thus far in a responsible manner. He was a responsible person in his work, in taking care of his family members and fighting for the benefits of his colleagues. But regarding the responsibility imposed on him in entrusting with him a lethal weapon, he failed it.

13.Having said that, however, the facts disclosed in the present case is a lot less serious than that of Chan Sik-ping. There was no intentional shot in this case and the gun was discharged during a struggle. I also accept that the Defendant committed the offence out of momentary impulse and he had never thought of hurting anyone with the gun. I accept that the Defendant is genuinely remorseful and I am confident that he will continue living a decent life after serving his sentence.

14.In the circumstances, I adopt a starting point of 18 months’ imprisonment for charge 2. In consideration of the good character of the Defendant and other mitigating factors, I further reduce the sentence to 12 months’ imprisonment. Taking into account his guilty plea, the Defendant is sentenced to 8 months’ imprisonment for charge 2.

15.For charge 1, the offence is relatively minor. I adopt a starting point of 21 days’ imprisonment and the sentence is reduced to 14 days for the plea of guilty. This 14 days’ imprisonment is to be served concurrently with the sentence for charge 2.