HKSAR v. Li Chi Keung

DCCC 409/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 409 OF 2013

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Reasons for Sentence

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1.The defendant pleaded guilty to charge 1, possession of ammunition without a licence, and charge 2, possession of an imitation firearm.

2.The prosecution case reveals that at 9 pm on 17 January 2013, the defendant made a 999 call to the police console reporting that there was a suspicious male walking along Garden Road outside St. John’s Cathedral.  The police located the defendant who was holding a pistol-like object (“PLO”).  He first pointed at one of the officers and then at himself. The police party then intervened and subdued the defendant.  The PLO dropped onto the ground breaking into two pieces.  Defendant was arrested.

3.Under caution, he admitted that the PLO consisting of a lighter and metal bolts was made by him and that there was a real bullet inside.  He made it to kill himself. 

4.In a further interview, the defendant stated that the PLO was not a real firearm.  He had an argument with his girlfriend and became sad, he wanted to kill himself with the lighter firing the bullet that he had put inside the PLO.  When he saw the police, he pointed the PLO at his head and pressed the trigger but nothing happened.  The bullet was brought over to Hong Kong from the mainland when he was about 10 years old. 

5.The whole of the improvised PLO and the suspected live bullet were seized and sent to the Forensic Firearm Examination Bureau for examination.  The forensic firearms examiner found that it consisted of three metal cylinders and a lighter.  It was incapable of being improvised to become a firearm for discharging ammunition.  The subject ammunition was a live round of ammunition in point 22 long rifle calibre.

Background and mitigation

6.The defendant is aged 35.  He has two previous convictions, one for possession of offensive weapon in 2001 and another for possession of part 1 poison in 2010.  He is a known mentally disordered person.  Two psychiatrist’s reports dated 3 May 2013 and 7 June 2013 had been called for when the defendant first appeared in the District Court.  As the reports have been prepared for some time and the defendant’s present mental condition is one important factor in sentencing him, I called for two updated psychiatrist’s reports.

7.The two psychiatrists preparing the updated reports both confirm that the defendant suffers from psychosis or schizophrenia with polysubstance dependence.  Doctor Chow is also of the view that the defendant is still having active psychotic symptoms and high suicidal risk. Both of them recommend a Hospital Order for 6 months.

8.In mitigation, Mr Leung, solicitor for the defendant, told the court that the defendant obtained the bullet from the mainland when he had target practise 10 years ago.  The defendant has been depressed since last year when his father became ill and died subsequently.  Right before the time of the offence, the defendant had had argument with his girlfriend.  He saw no future of himself and decided to end his life by the homemade pistol he made.  Having received treatment for his mental condition, he now  realises that it was a very wrong thing.

9.While appreciating the offences the defendant pleaded guilty to are very serious ones, Mr Leung urges the court to impose a Hospital Order so that the defendant can continue his treatment at the Siu Lam Psychiatric Centre.

Reasons for Sentence

10.The two offences, charge 1 in particular, are very serious.  The maximum sentence for charge 1 is 14 years’ imprisonment.  The general rule is that a deterrent sentence should be imposed.  A substantial term is regularly adopted by the courts.  There is no guideline or tariff.  In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the Court of Appeal stated that as a rule, this type of offence would attract a severe and deterrent sentence for the reason that firearms and ammunition posed a potentially great danger to society.

11.The case also set out some factors that the court should consider.  These matters include: the type of firearm and ammunition involved, whether the firearm was loaded, whether defendant intended to use them for illegal purpose and whether the defendant has a clear record, etc.  Determination of sentence would depend on the court’s assessment of the potential risk imposed by the arms and ammunition in question and the possibility of the arms and ammunition being used by other persons. 

12.In this case, I accept that the bullet was obtained by the defendant after he had target practice in the mainland 10 years ago. When he intended to use it in the present case, he was in such a mental condition that he thought he could use it to end his life.

13.I also accept that he is now in need of psychiatric treatment in a mental hospital.  A Hospital Order would be beneficial to him. 

14.On the other hand, for such a serious offence, the court has to consider whether a detention for a period of 6 months in the hospital will be viewed as a too lenient sentence such that it would not be in the interests of society.  It should be noted that while the defendant made the imitation pistol with the bullet under a mental situation, the culpability of his possessing the bullet before the commission of the present offences must not be ignored.  The key issue is how is the balance struck between the interests of the public and the defendant.  The first question is what should be the appropriate starting point for possessing a small number of bullets as in the present case.

15.In Yu Chi Lap v R CACC656/1982, an ex-police officer was sentenced to 18 months’ imprisonment when he was found to be in possession of three live rounds of ammunition under the cushion on his own car.  He obtained these rounds from a range course when he was still a serving member of the police CID.  He had a clear record.  On appeal, sentence was reduced to one of 6 months’ imprisonment. 

16.In R v Man Hung Pui CACC222/1992, the defendant pleaded guilty to possession of six rounds of live ammunition which he picked up at a construction site at the age of 17.  The sentencing Judge observed that there must be a strong possibility that the ammunition might have been used in the commission of very serious offences.  The defendant had a criminal record though not for similar offences.  A sentence of 4½ years’ imprisonment was reduced upon appeal to 32 months with a starting point of 4 years’ imprisonment being adopted by the Court of Appeal.  The court accepted that possession of ammunition is usually less serious than possession of a firearm.

17.In the present case only one bullet is involved. There is no suggestion that suspicious items were found at the residence of the defendant which will give rise to suspicion.  There is no suggestion that the bullet had been used or the defendant intended or had the motive to use the imitation pistol and bullet to do unlawful act towards anyone other than himself.  The expert has confirmed that the PLO was incapable of being improvised to become a firearm for discharging ammunition.  Though the defendant has a previous conviction for possession of an offensive weapon, that was more than 10 years ago.  In all the circumstances, I would have taken a starting point of 2 years’ imprisonment for the totality of the offences if imprisonment is inevitable.

18.His plea of guilty and mental condition are no doubt mitigating factors that the court has to consider.  The defendant has been remanded in custody since January this year when he was arrested.  He has been in custody for six months, which period of time will be taken into account for calculation of the term of imprisonment he has to serve in the prison if imprisonment is ordered.

19.The remission system under rule 69 of the Prison Rules may further shorten the period of imprisonment.  That would mean that even an order for imprisonment is made for punishing the defendant, he would have to remain in prison only for a few more months.  In this regard, the detention of the defendant for another 6 months in a mental hospital should not be treated as a too lenient sentence.

20.I am satisfied that treatment in a secure setting would be beneficial to the defendant who has been diagnosed by Doctor Chow as still having high suicidal risk.  A mental hospital or psychiatric centre would be a better place than a prison for the treatment of the defendant.  I see no advantage to the public in imposing imprisonment term in this case.

21.I therefore decide to sentence the defendant by imposition of a Hospital Order for 6 months to be served at Siu Lam Psychiatric Centre for both offences concurrently.