CRIMINAL CASE NO. 181 OF 2011
COURT: On 27 May of this year, this defendant appeared at the Eastern Magistrates' Court. He was there charged with two offences; the 1st charge being possession of arms and ammunition without a licence, contrary to Section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap. 238. The 2nd charge was possession of a dangerous drug, contrary to Section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134. He pleaded guilty to both charges.
A Summary of Facts in support of those charges was read in open court and agreed to by the defendant. As a consequence, the magistrate then committed the defendant to this court for sentence. Today before me he has confirmed those pleas of guilty and also that Summary of Facts.
The Summary of Facts reveals that on 19 October last year the defendant entered Hong Kong at the Lo Wu Control Point at the border. He was selected for an examination by Customs officers. He was taken to the baggage examination counter. An ion scan was performed and the result indicated a positive reading for dangerous drugs. Customs officers therefore indicated to the defendant that he would be taken for a personal search.
Having been advised of this, he told them, “I have a gun on me.” He was immediately arrested and cautioned and he repeated, “I have a gun on me.” He was searched. A pistol was found tucked into the waistband of his underpants. He told the Customs officers that he had picked up the gun in the road in Shenzhen and had it for the purposes of play.
The search continued and the defendant told the officers, “Sir, there are three bullets in the gun.” Subsequent examination of the pistol revealed this to be correct. In addition to finding the loaded pistol hidden in the defendant’s underwear, the officers also found a chewing gum packet which contained nine small pills. The defendant was asked what they were and he told them that it was valium.
The particulars of the two charges alleged that he was in possession of arms and ammunition, namely, the loaded firearm and also the nine pills which, upon subsequent analysis by the Government Chemist, were determined to contain the dangerous drug estazolam which I understand is a form of sedative which is, however, capable of being abused.
The pistol was examined by an expert forensic firearms examiner. He found that it was a homemade self-loading pistol which was covered in a layer of rust and that is apparent from the photographs now before me. It was capable of chambering 7.62 millimetre 64 calibre ammunition. The magazine was found to be capable of storing that particular type of ammunition. It was fired under supervision of those officers and found to be in working order. The three bullets which were found in the pistol at the time the defendant was apprehended were determined to be capable of being fired in that pistol. Thus it was he was in possession of arms and ammunition and he was so without a licence.
The defendant is 41 years of age. He has a number of prior convictions dating back to 1998. Some of those are associated with dangerous drugs, including trafficking in dangerous drugs. On one previous occasion in the year 2005, he was found to be in possession of an offensive weapon in a public place and I am told that the weapon on that occasion was a knife. He was last sentenced to be imprisoned on 24 July 2008. He was released from that term of imprisonment on 28 June 2010; a matter of some four months before this offence was committed.
On his behalf, Mr Ma has submitted that his instructions from the defendant are to the effect that he was not aware that the pistol was capable of being fired. His instructions are that the defendant found this rusty pistol somewhere in the street in Shenzhen and that he had kept it so that in the fullness of time he could remove the rust and keep it, in effect, as an object for collection.
Mr Ma submits that by reference to the appearance of the pistol it is supportive of the proposition that the defendant advances that he was not aware that the pistol was capable of functioning. I have indicated to Mr Ma, in the course of his mitigation, that that submission flies in the face of the fact that the defendant volunteered, when it was being examined, that there was ammunition in the pistol. The defendant said, “Sir, there are three bullets in the gun.” With respect to Mr Ma’s submission, it was apparent from that, that the defendant was fully aware that the pistol was capable of firing that ammunition.
Other matters advanced by Mr Ma, however, are in favour of the defendant, it is accepted that this gun had been examined by the forensic experts and was not linked in any way to any offences that have previously been committed in Hong Kong. Nor was there any evidence that the defendant intended himself to use it for such a purpose. These are matters I will take into account.
The appropriate starting point for sentence for an offence of this nature, I am satisfied, is governed by the observations of the Court of Appeal in R v Ho Chun which was a reported decision in [1992] 1 HKCLR 86. In circumstances similar to those of this defendant, the Court of Appeal indicated that after a plea of guilty a sentence of 8 years’ imprisonment would be appropriate. By reference to the then discounts given for pleas of guilty it is apparent that a starting point of 12 years for possession of arms and ammunition without a licence, without any other significant aggravating factors, is appropriate. There have been a number of observations of the Court of Appeal since that date which confirm that approach. In particular, I refer to the unreported judgment of the Court of Appeal in HKSAR v Yau Siu Kai, a decision handed down on 26 February 2001 which is CACC 148/2000.
I am satisfied in the circumstances of this case, bearing in mind the similarity of this offence with that of Ho Chun, that a starting point for Count 1 of 12 years’ imprisonment is appropriate. As to the 2nd count, the amount of drugs involved was very small. The dangerous drugs concerned are such that there is no sentencing guidance in respect of them. Nevertheless, bringing drugs into Hong Kong which are prohibited is a serious offence. I am satisfied in the circumstances that a starting point for sentence of 6 weeks is appropriate. Given that the defendant has pleaded guilty, a sentence of 4 weeks is in the circumstances the appropriate sentence.
Bearing in mind the totality principle, I will order that that sentence be served concurrent to the sentence on the 1st count of 8 years’ imprisonment, thus it is that the total sentence is one of 8 years’ imprisonment.