HKSAR v. Ou Mingjiang and Another

DCCC210/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 210 OF 2011

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Reasons for Sentence

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The Charges

1.The 1st Defendant pleaded guilty to one charge of “possession of arms without a licence” and one charge of “attempting to land in Hong Kong without permission”. The arms involved were two stun guns, one capable of generating pulsating voltage with an average of 50,890 volts and another of 43,270 volts when loaded with human-skin-like resistance. Both guns were functioning properly at the time of seizure. Having examined the guns, the Forensic Pathologist confirmed that they could stun or disable a person when each of them is applied on a human subject.

2.The 2nd Defendant also pleaded guilty to one charge of “possession of arms without a licence” and one charge of “attempting to land in Hong Kong without permission”. The arms in question were two spray canisters, each capable of discharging a noxious liquid, which is commonly known as “CS Spray”. The Forensic Scientist confirmed that each of the canisters is capable of discharging from the nozzle CS chemical which is capable of causing a burning sensation on the soft mucosal.

The Facts

3.The facts which were admitted by the Defendants disclosed these: In the early hours on 24 November 2010, marine police officers intercepted an inflatable rubber boat which was heading towards Tin Tsui Wai. At the time, the 1st Defendant was on board the boat with another male while the 2nd Defendant was in the water, wearing an inflatable swimming buoy which was attached to the rubber boat with a string.

4.As a result of a search conducted on the boat, the police found inside the 1st Defendant’s rucksack a mobile phone, 2 pairs of labour gloves, 21 pieces of plastic straps, and 2 rolls of cellophane tapes. Also seized from the rubber boat was a plastic bag with the 1st Defendant’s fingerprints on it. Inside this bag, the 2 stun guns referred to in charge (1) were found.

5.Inside the 2nd Defendant’s rucksack, 2 pairs of labour gloves, a mobile phone, and the 2 spray canisters referred to in charge (2) were found.

6.As admitted, neither the 1st Defendant nor the 2nd Defendant had any permission to land in Hong Kong.

7.Under caution, both Defendants claimed that they intended to come to Hong Kong to seek employment. The 1st Defendant further claimed that the cellophane tapes were to be used to mend the rubber boat whereas the plastic straps would be used to hang on the trees. I have asked for the plastic straps to be provided for examination but as the police have not brought them along, I was only given photographs of the items. Nonetheless, it is clear from the photographs that these straps could be used to restrain human wrists and Mr. Yiu who acted for the 1st Defendant also accepted this.

8.When asked by the police, the 1st Defendant claimed that the labour gloves were for hiking. As regards the stun guns, he denied having any knowledge of them when questioned under caution. However, given that he has now admitted the guilt of possessing them, such claim of no knowledge is no doubt untrue.

9.Under caution at the scene, the 2nd Defendant stated that the spray canisters were personal protection devices and that he had purchased them for fun. During the subsequent video-recorded interview, the 2nd Defendant then stated that the two canisters were given to him for custody by the 1st Defendant a few days before their interception by the police.

Mitigation

10.Both the 1st Defendant and the 2nd Defendant have a clear record in Hong Kong.

11.The 1st Defendant is aged 32 and he came from a farmer’s family. He is now divorced but has a son aged 8. In 2009, the 1st Defendant started to work in Shenzhen as a security guard, earning about RMB 1,200 per month. He contributed a large part of that income to support his family.

12.The 1st Defendant said he had been unemployed for 3 months prior to his sneaking into Hong Kong. As a result, he intended to seek employment in the black labour market in Hong Kong. The 1st Defendant also frankly admitted before this court that in case he was unable to get any job, he would not rule out the possibility of using the stun guns for theft and robbery. Mr. Yiu, who acted for the 1st Defendant, however, drew the court’s attention to the expert’s comment that “Electrical shocks generated by such devices are generally considered non-lethal for healthy subject. Permanent damages are also not expected.”

13.This afternoon, a letter written by the 1st Defendant was handed up to the court. Basically, the 1st Defendant begs for leniency, saying that he is the main bread-winner of the family as his mother is suffering from ill-health and his father had an accident at work in 2009 which caused him to have a broken leg.

14.The 2nd Defendant is aged 32. It is said that he has received university education in the Mainland. He has to support his parents and he has worked as a factory worker, a driver and a security guard in Shenzhen. In order to earn more money to support his family and to meet the medical expenses of his parents, he came to Hong Kong to seek employment.

15.Initially, Mr. Yuen for the 2nd Defendant suggested that the 2nd Defendant possessed the two spray canisters for self-protection only. However, when the prosecution stated that such a stance did not seem to accord with the admissions made by the 2nd Defendant under caution and would not be accepted, Mr. Yuen took further instructions from the 2nd Defendant and confirmed that the 2nd Defendant accepted that he might use the two spray canisters for some unlawful purposes.

16.Again, the 2nd Defendant wrote to beg for leniency. He said that he is now remorseful and asked for a light sentence as he is the only son of his family and his parents require his care and attention.

Charge (1) : Possession of Stun Guns

17.Although the cases of HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 and HKSAR v Wong Wing Wong CACC 214 of 2002 (unreported) are often referred to in the sentencing of possession of stun guns, those are not guideline cases. The Court of Appeal noted in HKSAR v Zhen Fu-ting CACC 509 of 2003 (unreported) that :

“14.  There are no guidelines set down by these cases. The case of Li Hung Kwan did no more than make reference to a series of decisions in which the appellants had been convicted or pleaded guilty to possession of a stun gun. So all we can discern from that case is the type of sentence which has, according to a variety of facts, been imposed in the past.”

18.Therefore, although in the beginning of the reported judgment of Li Hung Kwan, it was stated that “In the absence of evidence that might suggest that D intended to use the stun gun for an illegal purpose, the starting point should have been 20 months’ imprisonment.”, the term arrived at was facts-specific. There is, however, no doubt that the element of deterrence is important in sentencing this type of offenders and that immediate custodial sentence is the norm. Also of relevance is how powerful the stun gun is.

19.In the present case, the stun guns were charged and ready for use at the time of seizure. They are capable of disabling a human subject and are capable of generating 50,000 and 43,000 volts when applied on human bodies. By reference to the voltages and the harm that could be caused, I consider these guns to be relatively powerful.

20.I also note that the 1st Defendant did not only possess one stun gun. He admitted having in possession of two of them. At the time of his arrest, he was on board a boat which also carried 21 pieces of plastic straps and 2 rolls of cellophane tapes. As I have mentioned above, the plastic straps could be used to restrain human wrists. In fact, I do not see how they could be put to any useful purpose by hanging them on trees as claimed by the 1st Defendant under caution. Moreover, the 1st Defendant was found in the company of the 2nd Defendant who had, in his possession, two spray canisters.

21.Therefore, on the facts before me and considering the admission of the 1st Defendant as well as the circumstances under which the 1st Defendant was found to be in possession of the two stun guns, I take the view that the guns were possessed by the 1st Defendant with the intention of using them not for self-protection, but for an illegal purpose.

22.Bearing all the relevant facts in mind, I consider it appropriate to adopt a starting point of three years for this charge. The 1st Defendant pleaded guilty and he will get a one-third reduction for that. 3 years reduced by one-third is 2 years’ imprisonment.

Charge (2) : Possession of Spray Canisters

23.In HKSAR v Chau Lap Pui CACC 358 of 2006 (unreported), the Court of Appeal commented that,

“13.  All things considered, it was argued that the starting point for possession of a pepper spray should certainly be less than for a stun gun which is a more harmful weapon. Again, there are no guidelines for sentence in such cases. Although we were referred to HKSAR v Wong Hok-hang & Ors, CACC 255/2004, we did not derive much benefit from the decision as this court was there only concerned with conviction. Judge Richard Day had imposed a 9-month sentence in that case for possession of a pepper spray where the inference was properly drawn that it was to be used for the purpose of robbery.

14.  With HKSAR v Wong Hok-hang & Ors in mind, Mr. Hung suggested that a starting point of less than 9 months in a case such as the present one would be appropriate as the circumstances do not reveal the possession of the CS spray for some illicit purpose such as robbery. We consider, in the light of everything we have heard, that a starting point of 6 months would have been appropriate in the present case, reduced to 4 months for the guilty plea. Ms. Lai, for the Respondent, did not seek to suggest otherwise.”

24.I should state at the outset that although the 2nd Defendant claimed at the scene that he had the spray canisters for fun, I consider such a claim to be wholly untrue and far-fetched. If the 2nd Defendant had bought them for fun while he was in the Mainland, there was absolutely no reason why he should carry them with him across the border, and had not only one of those, but two, in his possession at a time when he only had very few personal belongings on board the rubber boat.

25.Concerning his later claim that the canisters were given to him for custody by the 1st Defendant, I also do not see how this could help him mitigate. The 2nd Defendant admitted having in his possession two, not just one, spray canisters. The canisters could function properly and could discharge noxious chemical causing a burning sensation on humans. The fact that at the time of his arrest, the 2nd Defendant was found in the company of the 1st Defendant, who had in his possession two stun guns, and the fact that the 2nd Defendant was found alongside a rubber boat which had on it 21 pieces of plastic straps and 2 rolls of cellophane tapes, made the circumstances of his possession of the two spray canisters more serious. I consider that given all these facts, a proper inference could be drawn that the canisters might be used for an illegal purpose.

26.Therefore, although it might be that a spray canister could not be described as harmful as a stun gun, on the facts of this case and given the circumstances under which the 2nd Defendant was found to be in possession of the canisters, I consider it appropriate to adopt a starting point of 18 months for this charge. The 2nd Defendant pleaded guilty and he will get a one-third reduction for his plea. Therefore, the sentence he will get for this charge is one of 12 months.

Charges (3) & (4) : Attempting to Land in Hong Kong

27.In AG v Ng Kin-hung & Ors. [1991] 1 HKLR 81, the guideline of 15 months after a guilty plea set in R v So Man-king & Ors. [1989] 1 HKLR 142 for unlawful remaining in Hong Kong was said to be applicable to the offence of attempting to land in Hong Kong. The Court of Appeal noted in Ng Kin-hung that “The substantial element in sentencing for these offences, as was observed in R v So Man King and Others [1989] 1 HKLR 142, is the unlawful presence of the offender in Hong Kong.”

28.In the present case, and having considered the mitigation advanced on behalf of the Defendants, I see no reason to depart from this guideline. The predicament that their families will be in is a matter over which this court is sympathetic but, at the same time, these Defendants should have thought about the adverse consequences upon their families before they committed the present offences. I therefore sentence each of the 1st Defendant and the 2nd Defendant to a term of 15 months in respect of the charge of “attempting to land in Hong Kong”. In imposing this term, I have already taken into account their guilty pleas.

29.I order that this term of 15 months is to be served wholly consecutively to the other term which each of the Defendants is to serve.

The Sentences Imposed

30.Therefore, for the 1st Defendant, 2 years for charge (1) and 15 months for charge (3), both to run consecutively, making a total of 3 years and 3 months’ imprisonment.

31.As regards the 2nd Defendant, 12 months for charge (2) and 15 months for charge (4), both to run consecutively, making a total of 2 years and 3 months’ imprisonment.