COURT: The defendant, now aged 68, pleaded guilty, when he appeared at the Eastern Magistrates’ Court on 4 January 2013, to the three charges which are before me for sentence.
The most serious element of these offences is clearly the 1st charge. This involves a homemade pistol loaded with a homemade cartridge which the defendant discarded inside a plastic bag after he had been seen acting suspiciously on 10 May 2012 by police officers who were apparently off duty. The sighting of the defendant was in what is described as “underbrush” just off the Long Tin Road in Tin Shui Wai. The defendant was wearing a waist-bag in which he had a further barrel which had been homemade and which is included in the 1st charge.
The defendant’s arrest led to his two addresses being searched. There were 500 cartridges for cartridge-operated fixing tools which were found at his address in Yuen Long. That is Charge 2. The remaining items in Charge 3 were found at his residence in Tin Shui Wai and consisted of 10 further cartridges for cartridge-operated tools. The defendant had no cartridge-operated fixing tool at either address.
All the items in these charges required a licence and the defendant had none. By way of explanation for his possession of these items, the defendant said that he had picked up the cartridges in Charges 2 and 3 from a construction site. One of his residences was close to the construction site where he had met a worker he only knew as Ah Ping. According to the defendant, Ah Ping had made a pistol so that he could use it to shoot birds, although he had never seen him doing this. The defendant went on to say that Ah Ping had buried this in his garden.
Anyway, the defendant spoke of having gone to Ah Ping’s garden and taken away the pistol with the intention of throwing it away. The explanation given by the defendant is one which is highly convenient as it appears that his unlicensed possession of a loaded firearm in a public place would, on that account, have been technical in nature.
However, the account is utterly implausible. The defendant gave to the police no contact details whatever about Ah Ping and the fact that he was seen acting suspiciously by police officers who were observing him supports a contrary view that, in truth, the defendant was up to no good.
The cartridge inside the pistol, when examined by a forensic expert, was found to contain, amongst other things, seven metal nails and it was found to be capable of being fired, and was fired, when tested. However, the pistol itself, in the condition originally found by the police, was such that the plunger had rust and corrosion which prevented it from being fired at the time the defendant had possession of it. But when the forensic expert cleaned the gun, it was found capable of firing .410 calibre short shells and also .44 Smith and Wesson Special ammunition, as well as .44 Magnum ammunition.
The separate barrel taken from the bag round the defendant’s waist was identical to the barrel fitted to the pistol. The pistol was test-fired with three types of ammunition that I have mentioned and these tests were successful.
As to the cartridges found in his residences, these fall within the meaning of “ammunition” and were found to contain nitro-glycerine which is an explosive. It is plain from these facts that the defendant had an unhealthy interest in items related to firearms.
As I have said, and also made plain to Mr Chan, I do not accept the account given by the defendant to the police as to his reasons for possessing the loaded pistol or, indeed, the other items.
The defendant is no stranger to these courts. He has served prison sentences in the past and has five times appeared before the courts. The principal convictions involve violence. On the last occasion he was convicted of wounding with intent, he received a 12-year sentence for two cases of that offence. Even after that, he was back in trouble for attempted rape for which he received a 6-year sentence in 2000. The defendant has used violence on his victims before which is why the possession of this pistol takes on a very sinister aspect. It is a factor of some importance that this was being carried by the defendant in a public place.
The only real matters in mitigation, which Mr Chan put as eloquently as could be put, are, firstly, that the defendant has pleaded guilty from the outset and, secondly, that the condition of the weapon when found by police was such that it could not immediately be fired.
There is copious authority since The Queen v Ho Chun in 1992, reported at 1 HKCLR at 86, closely followed by The Queen v Au Yeung Wai Kwong, CACC 238/1994, and The Queen v Milhench [1996] 1 HKC 628, that a starting point of 12 years’ imprisonment for the possession of a loaded firearm is appropriate in the absence of mitigation which may reveal that the purpose of possessing the firearm is not to embark upon a criminal enterprise with it.
Here, the circumstances in which the firearm was found are such as to make this a serious case, but as the condition of the pistol was such that it could not at that time be fired, I am prepared to take a 10-year starting point.
Ng, Wah-kan, would you stand, please. In view of your plea of guilty, the sentence you will serve on Count 1 is 6 years and 8 months’ imprisonment. There will be concurrent sentences on the other two charges of 12 months’ and 2 months’ imprisonment respectively so that your sentence is 6 years and 8 months in all.
Please refer to CACC126/2013 for the relevant appeal(s) to the Court of Appeal.