HKSAR v. Yan Shen

DCCC723/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 723 OF 2011

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Reasons for Sentence

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1.The defendant, Mr Yan Shen, pleads guilty to one count of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap.238. The particulars of offence are that the defendant on the 18th day of May 2011 at the security check point, Departure Hall North (airside), Level 7, Passenger Terminal 1, Hong Kong International Airport, Chek Lap Kok, New Territories, in Hong Kong had in his possession arms, namely one pistol with magazine, without a licence.

Facts Admitted

2.At 2333 hours on 18 May 2011, when the defendant was departing for Seoul, Korea, at the Hong Kong International Airport, a pistol-like object was detected by X-ray screening inside the rucksack carried by the defendant.  The security staff could not locate the object, and with the help of the defendant, a black case containing a pistol with an empty magazine (“the firearm”) was taken out from a partition of the rucksack. 

3.Under arrest and caution by the police, the defendant admitted that the firearm was given to him by his classmate whom he was staying with in the United States of America, and he brought it with him when he came to Hong Kong in 2002 not knowing that it was an offence to do so.

4.In a subsequently conducted video recorded interview in the presence of his lawyer, the defendant admitted, inter alia, that when he was studying in a university in the United States of America, his classmate Matt who shared a flat with him gave him the firearm between 1988 and 1989 when Matt was unable to pay his share of the rent.

5.The defendant shipped his belongings together with the firearm to Hong Kong when he came to work in Hong Kong in 2002, not knowing that it was illegal to do so.  He kept the firearm for memorial purpose and had not used it.  The firearm was kept in his residence, but as he moved to a hotel sometime last year, he placed it in his personal safe in his office. 

6.On 18 May 2011, he put the firearm into his rucksack and took it back to his new residence for safekeeping.  He forgot about it when he proceeded on a business trip to Seoul, Korea, later the same night.  He took the firearm to the airport and was detected during security check.

7.The firearm was found upon forensic examination to be an Egyptian Helwan M51 self-loading pistol of 9 x 19 mm calibre with a matching magazine.  The firearm was found to be functional and test firing was carried out successfully.

8.The firearm is within the meaning of “arms” under the Firearms and Ammunition Ordinance, Cap. 238, and the defendant did not have nor was he exempted from holding a licence to possess it.

Criminal Record

9.The defendant has a clear criminal record. 

Psychological Reports

10.The defence submits a psychological report on the defendant compiled by Dr Peter Lee who assessed the defendant on five occasions from 8 June 2011 to 24 June 2011 for a total of 8½ hours.  Dr Lee also interviewed the wife of the defendant separately. 

11.The background of the defendant is set out in the report.  He was born in China and is the younger of two siblings.  His parents were medical doctors and they both had very high demands on their children.  He had an uneventful childhood.

12.At the age of 17, he was sent by his parents to further his studies in the United States.  He experienced his dark years there as he had difficulty coping with his studies and the living in the United States.  He was also financially tight and had no friends.  He felt depressed, scared, insecure and miserable.  Finding support in religion, he became a Christian at the age of 18.  He finished college education in marketing and business administration with very good results in 1991, and he obtained a Master’s degree in 1998 while he was working.

13.The defendant got married in 2001 and has three children, aged 8, 7 and 5.  He moved to Hong Kong in 2002 while working for Credit Suisse.  He joined Deutsche Bank in 2006 and has achieved good career success.  In 2008 his wife and children moved to Shanghai and the defendant visited them on a weekly basis.  The marriage is described as being a good one, and the wife is supportive.

14.The defendant took on investment sales job in the United States after graduating from college.  The defendant regards himself as being weak in organization, indecisive and tends to put things off unless absolutely required.  He was still able to move up the ranks and achieved a highly successful career because he had been making extreme efforts to overcome his weakness.

15.The defendant’s wife describes him as a person who attaches extreme value to things and can never throw anything away.  He is extreme in procrastinating.  He is mindful in spending and habitually buys fake brand clothing.  He is mindful of his reputation and how others see him and is totally non-assertive. 

16.Dr Lee sets out in the report of how the defendant came into possession of the firearm and how he took it to the airport which is in line with what the defendant told the police.  The defendant completed a test of Minnesota Multiphasic Personality Inventory.  Dr Lee is of the view that the defendant’s procrastination is compatible with the diagnosis of someone suffering from a dependent personality disorder with symptoms including having difficulty making daily decision and needing others to assume responsibility for major areas of his life.

17.Dr Lee is further of the view that the defendant’s possession of the firearm is attributable to his dependent personality disorder and the strong emotional attachment to things of the past, and that the defendant took the firearm to the airport because of poor awareness and lapse of attention.  Dr Lee finds that the defendant is not a violent or dangerous person.  He has advised the defendant to seek intensive psychological help. 

18.Dr Lee testifies in court and his testimony is in line with what he says in his report.  According to a further report by Dr Lee, the defendant has received psychological treatment for six sessions of one hour each since the compilation of the psychological report and has made good progress.  Mr Lee is of the view that the defendant is likely to make continued progress and is expected to have a positive and optimistic long-term prognosis. 

19.The court of his volition also obtains a psychological report on the defendant.  The psychologist conducted tests of self-report inventory and sentence completion tests on the defendant and is of the view that the defendant has the maladaptive coping style in avoidance, submissiveness and suppression. 

20.According to the psychologist, the defendant explained that he had committed the present offence because of his habit of deferment, special meaning of the gun, overwhelmed work stress and bad luck.

Psychiatric Report

21.The defence also submits to court a psychiatric report on the defendant compiled by Dr Peter Wu who interviewed the defendant on 16 August 2011 for 40 minutes and on 18 August 2011 for half an hour.  Dr Wu also interviewed the defendant’s parents on 18 August 2011. 

22.Dr Wu points out in the report that the defendant has a history of hypertension and irregular heart beat and was under great stress in his work.  The sudden death of his mother-in-law who was close to him was also a shock to the defendant and all the family members.  In the diagnosis of the defendant, Dr Wu states that he thinks the defendant had had symptoms characteristic of dependent personality disorder and adjustment disorder with anxiety. 

23.Dr Wu is of the view that the present offence is entirely attributable to the mental disorder of the defendant because he could not say no to the one who gave him the gun and procrastinated in deciding how to dispose of the gun.  It is, in the view of Dr Wu, also due to the adjustment disorder of the defendant that he took the gun to the airport through a gross lapse of memory.  Dr Wu points out that the defendant would not cause any risk or danger to society and recommends the defendant to continue with psychotherapy in an out-patient setting, saying that any custodial sentence would interrupt treatment, making it harder for the defendant to recover. 

Background and Community Service Order Suitability Reports

24.The court obtains a background and a community service order suitability reports on the defendant. The contents of the background report are in line with those set out in the psychological report, and it is stated in the community service order suitability report that the defendant is a suitable person for community service order.

Mitigation

25.The senior counsel representing the defendant accepts in mitigation that the present offence inevitably attracts an immediate custodial sentence unless there are very exceptional circumstances.  He, however, points out that there are such exceptional circumstances in the present case.  He emphasizes that the defendant took the gun to the airport with no intention at all to take the gun on board of the flight he was taking. 

26.It is generally known that the security screening at the Hong Kong Airport is very tight and it is of no doubt that the defendant only took the gun to the airport through lapse of memory and attention.  In this regard the senior counsel draws the attention of the court to the case of Chou Shih Bin v HKSAR, FACC11/2004, in which the Court of Final Appeal held that it was impossible for a person who was familiar with the standard security procedures at the airport to present his bag for security X-ray screening if he had the knowledge that there was an anti-riot handgun loaded with one round of ammunition inside the bag. 

27.The senior counsel explains that the travel and work schedules of the defendant were very hectic around the time of the offence.  He intended to take the gun home for safe custody after he had secured a permanent residence in Tai Kok Tsui but forgot that the gun was still inside his rucksack when he went to the airport to go to Seoul, Korea. 

28.The senior counsel also points out that the defendant co-operated fully with the police at the airport once the gun was detected.  The senior counsel stresses that there is no evidence that the gun had ever been or was to be used for crimes or intended to be so used.  There was no ammunition in the defendant’s possession. Although the magazine was present, the gun has not been fired for 20 years. 

29.The senior counsel tells the court about the background of the defendant and how he came into possession of the gun and taking the gun to the airport.  They are in line with what the defendant told the police and those set out in the various reports. 

30.The senior counsel also submits to court a statement of Mr Matt Schoeb explaining how he gave the gun to the defendant for his share of rent back in 1989.

31.The gun was shipped to Hong Kong with the belongings of the defendant in 2002 when he came to work in Hong Kong.  The senior counsel agrees that the defendant should have surrendered the gun or disposed of it.  The defendant did not do so because he, as diagnosed by Dr Peter Lee, the psychologist, is suffering from dependent personality disorder which is characterised, inter alia, by his procrastinating character and sentimental attachment to possession of things. The senior counsel goes on explaining to court the details of the opinion of Dr Lee.

32.The senior counsel says that while the defendant was in possession of the gun, he kept the gun in safe custody, not even his wife was aware of the existence of the gun.  He has never intended to use the gun for any illegal purpose.  There is no latent risk of the gun falling into wrong hands.  It is always the intention of the defendant to plead guilty to the offence which reflects in the remorsefulness on his part.

33.Apart from calling the psychologist to give evidence, the defence also calls Mr Zhang Yichen, the chief executive officer of Citic Capital, as the defendant’s character witness.  Mr Cheung has known the defendant for 8 years and their families often had social gatherings since they have children of about the same age.  He says that the defendant has an impeccable business reputation and is the most honest person he has ever known.  He is of the view that the defendant is not a violent person and he was shocked when he learned about the offence. He points out that the defendant is remorseful for what he had done. 

34.The senior counsel also submits to court a number of mitigation letters.  The authors of the letters all express a good opinion of the defendant saying that he is an honest and trustworthy person.  They all ask the court to treat the defendant leniently. 

35.The senior counsel submits to court for reference the High Court case of R v Hirai Hilrotsugu, HCCC30/1995, in which Duffy J fined a defendant who was a fanatic collector of firearms for the possession of an arsenal of World War II weaponry.

36.The senior counsel asks the court to impose a community service order and if the court is minded to impose a custodial sentence, the sentence should be one of a short duration. 

Sentence

37.Possession of a firearm without a licence is a very serious offence.  The maximum penalty is one of 14 years’ imprisonment and a fine of $100,000.  Of course such penalty is reserved for the most serious type of such offence.  It is common sense that firearms if fallen into wrong hands could cause tremendous harm to society. That explains why the courts in Hong Kong have always taken the offence of possession of firearms without licence very seriously. 

38.There are ample authorities saying that a sentence of 6 years’ imprisonment for simple possession of a gun is not the least excessive, and then a higher sentence is warranted if there is evidence that the gun is intended for illegal purpose.

39.The sentencing exercise in the present case, the court must confess, is not an easy one.   Here I have before me a man of unblemished and impressive record and is highly successful in his banking career.  He, however, stands convicted of a very serious offence. 

40.I accept that the defendant had possessed the firearm without any intention to use it for any illegal purpose and he has all along taken great precaution to keep the firearm in safe custody to make sure that it did not fall into wrong hands.  I am convinced that the possession of the firearm by the defendant did not pose a risk or danger to society.  I also accept that the defendant did not surrender the firearm or dispose of it because of his procrastinating character and, more importantly, his sentimental attachment to the firearm which he regarded, in the words of Dr Lee, as a memento of an important stage in his life.

41.I accept the view of Dr Lee that these are symptoms of the dependent personality disorder which the defendant laboured under at the time of the offence.  The defendant is now receiving treatment from Dr Lee and is making good progress.

42.One thing, however, which troubles the court is that the defendant took the firearm into Hong Kong intentionally.  He gave the excuse that he did not know it was an offence in Hong Kong to do so.  The court finds this totally incredible.  He was aged 24 when he came to Hong Kong.  He is a well educated man and is extremely successful in his career, it is impossible that he did not know it was an offence to possess a firearm in Hong Kong let aside taking it into Hong Kong from another country. 

43.As the court has already pointed out, the court is of the view that the defendant has never had the intention to use the firearm for any illegal purpose.  Then the court has to ask the question: why should the defendant bring the firearm to Hong Kong? Having considered the whole circumstances of the case, the court is of the view that the only conclusion is that he was driven to do so by a compulsive desire to keep the firearm as, again in the words of Dr Lee, a memento of an important stage of his life.

44.What the defendant did is no doubt an extremely stupid act and could be the result of a psychological disorder.  I have now before me various reports of the defendant.  Having considered all these reports and the circumstances of the case, the court considers that the sentencing options in the present case include an immediate custodial sentence and a non-custodial sentence including a suspended sentence and a fine.  A community service order is of course also a sentencing option.

45.The court must say that the present case is very similar to the case of R v Hirai Hilrotsugu dealt with by Duffy J.  Similar to the defendant in that case, the defendant in the present case is a psychologically sick person who requires treatment.  He is receiving treatment and is making good progress.  The court accepts the view of Dr Wu that interruption in the treatment of the defendant may make him more difficult to recover. 

46.Having considered the strong mitigating factors and the special circumstances of the present case, the court has decided against an immediate custodial sentence.  The court of course cannot lose sight of the serious nature of the case, particularly the intentional act of the defendant taking the firearm into Hong Kong from the United States.  It is of no doubt that the defendant has to be punished by the law for his illegal act.

47.The court is convinced that the defendant requires psychological treatment to help him reform.  The court considers that allowing the defendant to reflect on his misdeeds through voluntary community work for society and at the same time to receive the necessary psychological treatment is in the best interest of society and justice and is the most appropriate sentence in the present case. The court therefore makes an order that the defendant is to perform 240 hours of community service order.  The defendant is to continue to receive psychological treatment while performing this order. 

48.As pointed out by the defence counsel, this is not a soft sentencing option because a number of authorities including the statutes creating this sentencing option all say that community service order is equivalent to a term of imprisonment.

49.To make sure that the offence bears more strongly and deeply in the mind of the defendant, as a warning for him not to breach the law again, the court also imposes a fine of $50,000.

Please refer to CAAR10/2011 for the relevant appeal(s) to the Court of Appeal.