HKSAR v. Zhou Yiping

DCCC 713/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL ACTION NO. 713 OF 2011

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Reason for Sentence

1.The Defendant pleaded guilty to 3 charges:

(a) Possession of arms without licence, they were 2 stun guns.

(b) Possession of prohibited weapons namely, 2 extendable batons.

(c) S.33 possession of offensive weapon: one T-shaped wooden baton.

Exhibit number	Weapons type	Inside the Benz drove by the D
1	Stun gun	Inside a box at the offside front door	Discharged 60,000 volts
2	Stun gun	Inside the boot	Discharged 5,000 volts. Both stun guns are in good physical conditions and functioned properly
3	Extendable baton	Inside a box of the nearside front door	Retreated length 20.3 cm. Fully extend length 50.3cm. Made of metal
4	One extendable baton	Inside a box between driver and front passenger seats	Retreated length 19.8 cm. Fully extended length 50 cm. Made of metal
5	T-shaped wooden baton	On the floor of front passenger seat	Offensive weapon per say

2.All the 5 items were found in the Mercedes Benz drove by the Defendant to Hong Kong via Shenzhen Bay Port where a custom officer conducted a search of the car.

3.The Defendant admitted under caution that the 5 items belonged to his boss’s bodyguard.

4.The Defendant has a clear record in Hong Kong and Mainland.  He is 34 years old.  Married and has a son who is now 5 years old.  His wife is expecting a second child in a few months time.  His elderly parents also depend on him for support.  The Defendant is employed as a driver for the Shenzhen Kwai Tong Lian Technology Company in the Mainland.  This company is also related to a listed company in Hong Kong.  The two senior executives of the listed company have been the victims of blackmails and threats by a former employee, Wu Yi who has been sentenced to jail for 3½ years in China.  He has been released from prisoner in 2/2011.  However, the victims still continued to receive threat and intimidating messages from Wu Yi.

5.In short, the items placed in different locations of the Benz were for protection purpose.

6.The Defendant did not know that it was illegal to bring them to Hong Kong.  On the day in question, he drove the car to Hong Kong to pick up the family members of the executives.

7.The former bodyguard Mr. Long Hui and the current driver Zhang Wen have both claimed ownership of the items which were found inside the Benz.

8.The defence placed heavy emphasis in mitigation on the fact that the boss of the Defendant has been a subject of blackmail and threat, despite a 3½ years imprisonment term, Wu Yi still continued to send intimidating messages.  Report has been made to the Mainland police.  The defence said that this is an exceptional case the Defendant did not intend to bring them to Hong Kong to sell or to commit any crimes.  Therefore, the Defendant should be sentenced leniently, such as Community Service Order and Probation Order, or a short sentence to allow the Defendant be released immediately because the Defendant has been in custody for 2 months already.

9.I disagree.  Not only that he is a Mainlander, he is not suitable to be placed under such orders, this will also send a wrong message to public.

(i) The defendant faces 3 serious charges, the maximum sentence for charge 1 is 14 years and a fine of $100,000, charge 2 is 3 years and a fine of $10,000, charge 3 is 3 years.

All the 3 charges are excepted offences. That means suspended sentence should not be considered.

(ii) All the 5 items in the car, 4 were placed in such a position that the driver and front seat passenger can have easy and immediate access to the items. The driver can reach to a stun gun, which can discharge 60,000 volts, and a baton.

(iii) That was the purpose of putting there inside the Benz so that front seat passenger and the driver can easily reach to those weapons when situation occurred.

(iv) The Defendant mainly worked as a driver when he performed his duty to drive the Benz, he should aware those weapons were placed inside the Benz and the purpose of putting there.

10.The defence has helpfully provided me with a case of HKSAR v Li Hung Kwan Criminal Appeal No. 250 of 2002 that the Court referred to a number of possession of stun guns cases.  All the cases showed that immediate custody sentence is called for.

11.In R v Wong Chuen Pong Criminal Appeal 579/1996, the appellant pleaded guilty and claimed the stun gun which could discharge 60,000 volts was used for self defence. A sentence of 2 years was affirmed.

12.In the present case, it involved 2 stun guns, one discharged 60,000 volts, while the other one discharged 5,000 volts.

13.The use of a stun gun can cause immediate localized effects on a victim, for 3 to 5 seconds the victim is immobilized, incapacitated, left dazed and weak for at least five, perhaps fifteen minutes.

14.One can imagine that couple with the use of other weapons inside the Benz, the consequence can be extremely serious.

15.Having considered the background of the case and all the mitigating factors, this court considered that 3 years is the appropriate starting point for charge 1, reduce to 2 years because of the Defendant’s guilty plea.  As to charge 2, starting point is 12 months, reduced to 8 months, charge 3, 9 months reduced to 6 months.

16.All sentences to run concurrently.