HKSAR v. Lui Kam Wai

DCCC526/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.526 OF 2011

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Reasons for Sentence

1.The defendant faces one charge of Possession of arms without a licence, contrary to s.13[1] of the Firearms and Ammunition Ordinance, Cap.238. The arms in question is a portable stunning device[2].

Facts

2.Police entered the home of the defendant upon execution of a search warrant and found the stunning device in question, hanging casually by the computer monitor in the living room. The defendant explained that it was a friend of his who had asked him to keep it for him. The defendant was promised a small amount of money in return for his trouble. The defendant admitted that he knew that it was a stunning device. The device had a power output of around 45,000 volts.

Previous convictions

3.The defendant has 11 previous convictions from 1986 to 2005, mostly drug related offences with some relating to dishonesty. He however does not have any similar convictions.

Mitigation

4.The defendant is 45. He is single but he had his girlfriend had been living together for a long time and they have a 10 year old son. The defendant’s mother is 78 years old.

5.The defendant is educated up to Form 3 level in Hong Kong. He has been unemployed since 2001 and was on CSSA at around $1,800 per month. In return for this CSSA, he is required to attend interviews with the social welfare service to supervise his job finding progress. The defendant will next attend such an interview on 31.8.2011.

6.Although the defendant has no fixed employment, he did work on a casual basis as delivery worker and did report that to the social welfare officer, as shown in the income sheet he filed with the officer.

7.As disclosed in the summary of facts, it was his friend ‘Ah Hung’ who asked the defendant to keep the device in return for $500. The defendant agreed to doing it because he was in financial difficulty and was unable to resist the easy money. ‘Ah Hung’ told him he will retrieve it  in a few days or weeks.

8.The defendant received the device on 17.12.2010 and he was arrested on 20.12.2010.

9.The defendant never used the device and had told his son and wife not to touch it. The defendant pleaded guilty, indicating remorse. Only one device was found, unlike other cases where other arms and ammunitions were found. There is no evidence he had used or will use it for illegal purpose.

10.The peak voltage not the lowest range, but it is also not in the highest range either.

11.Counsel for the defendant referred the court to the case of HKSAR v Li Hung Kwan, CACC 250/2002, where the Court of Appeal reviewed a number of previous cases of possession of a stunning device and was of the view that the length of sentence should be related to the voltage of the device and whether the device had been or will be used for illegal purpose.

Sentence

12.It is clear from Li Hung Kwan that in the circumstances that we presently face, a sentence in the range of 20-24 months would be appropriate.

13.In coming to my eventual sentence, I have noted that there is no evidence to suggest that the device had been, or will be used for illegal purpose, as well as the voltage of the stunning device. I have noted that the defendant, although receiving CSSA, had been trying to work to support his family. I have noted that the defendant has no similar convictions and that his latest conviction was back in 2005, more than 5 years ago.

14.Having considered the sentencing cases and the circumstances of this case, I find that a starting point of 21 months’ imprisonment is appropriate. I will grant the defendant the full one third discount for his guilty plea and sentence him to 14 months’ imprisonment.

[1] (1) No person shall have in his possession any arms or ammunition unless-

(a)  he holds a licence for possession of such arms or ammunition or a dealer's licence therefor; or

(b) (Repealed 14 of 2000 s. 10)

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine of $100000 and to imprisonment for 14 years. (Amended 59 of 1984 s. 2)

[2] "arms" (槍械) means-

(c) any portable device which is designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person;