HKSAR v. Jang Youngsu

DCCC 941/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 941 OF 2013

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Reasons for Sentence

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1.The defendant has been convicted after trial of one offence of attempted possession of arms and ammunition without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance.

2.The details of the facts of the case can be seen in the reasons for conviction I gave earlier.  A very brief summary is that the defendant attempted to snatch a police officer’s submachine gun at the airport.  The incident was of very short duration and was dealt with without any great difficulty by the police officer concerned, simply creating a minor disturbance, the defendant’s motivation being unclear, but he appeared to be overwrought and frustrated, and, on his own admission, had drunk heavily on the aeroplane before he arrived at the airport.

3.The defendant is a man of clear record in Hong Kong and also, I understand, in Korea.  He is a Korean national who was coming here on holiday.  He is aged 42.  He is by occupation a labour attorney in Korea.  His wife and his daughter live in the Republic of Korea.  He is a resident of that country.  His daughter is aged 12 and she is studying.

4.As alluded to by his counsel, Mr Wu, the defendant has an excellent background report.  He is clearly a man of accomplishment in his chosen field.  He studied hard to achieve his position as a lawyer, was a scholarship student at the National University of Korea, served in the Army and the Police, and provided legal services to the underprivileged and minimum wage earners.  It is somewhat extraordinary to find a man of that accomplishment in the position he is in today.  Clearly the events at the airport on 29 August were out of character for this particular gentleman.

5.Turning to the sentencing considerations, I am dealing here with an attempt to commit the offence, rather than completed offence, and in relation to these matters, it is a fairly important distinction in respect of this case.  There is no overall tariff sentence for this offence, either the completed offence or the attempt to do so.  It has been observed that it would be unusual that an attempt should be visited with punishment to the maximum extent that the law permits in respect of the completed offence.

6.In respect of offences involving firearms, they very much turn on their own particular facts.  In respect of the completed offence, it is obviously seen as a very serious matter in Hong Kong.  Sentences of at least 8 years’ imprisonment after a guilty plea have been imposed for simple possession of firearms and ammunition without a licence.

7.In one particular case, in HKSAR v Chan Chi Fu [2006] 4 HKLR, the case said that the general rule was that:

“Deterrence is the purpose of a sentence in cases such as this and there is a need to assess the potential risk posed by the firearms in consideration. The court should take into account the types of arms and ammunition involved, whether the defendant had physically carried the arms, whether the arms were loaded, whether they had been used, whether the defendant intended to use the arms for illegal purpose, whether the defendant had a clear record; and the determination of sentence depends on the court’s assessment of the potential risk imposed by the arms and ammunition.”

8.In another case of Secretary for Justice v Yan Shan 10/2011, the court said:

“In the case of unlicensed possession of firearms, societal protection is of paramount consideration. The court is expected to give particular weight to that paramount consideration. It is a category of offence which generally requires a deterrent sentence, and that is a sentence that pays less attention to the personal circumstances of the offender and focuses on the need of the court to convey a message that an offender can expect to be dealt with more severely so as to deter others. But that does not require a blind eye to be turned to individual circumstances.”

9.There is an observation that Hong Kong is a major and densely-populated city.  I might add that its airport is similarly dense and heavily populated.

10.Looking at those principles in relation to this particular offence and the offender, what I have here is an attempt to snatch or obtain a loaded firearm.  Although it was a firearm that was on “safety” and in the hands of a professional officer, so the risk of accidental discharge was low, the firearm itself was a firearm with great lethal power:  a Heckler and Koch machine gun with loaded ammunition; in the wrong hands, capable of extreme lethal destruction.

11.The defendant’s actions took place in a crowded locale with many passers-by and people coming through the airport, and almost a certainty of injury if there had been a discharge of the firearm.

12.There is, of course, in any attempt to seize a firearm, a risk of its discharge.  As I have said in my judgment, that risk was almost entirely eliminated by the professional actions of the officer who was holding the submachine gun at the time.

13.I now look at some of the mitigating factors. There is the personal background of the defendant.  He has, as I say, a good, and as I said, at one point exceptional circumstances from his personal background, and his action has already led, as I understand, to great difficulties for him.  He has been in Hong Kong since the date of the offence.  He has been absent from his wife and child for that period.  He has been unable to continue his practice.  I am told that he faces personal bankruptcy.  Any further detention in Hong Kong would, of course, subject him to further estrangement from his wife and child.

14.Another factor is, of course, the nature of the attempt that took place.  I believe it is safe to describe it as unpremeditated, being the result, apparently, of frustration and annoyance.  I am not dealing here with an attempt to escape custody or an attempt to escape arrest.  The defendant was apparently in no danger of being arrested.  Police officers were simply there because there was a disturbance.  And I can describe it as being a bare attempt in the sense that the defendant’s attempt was frustrated at a very early stage by the cool professionalism of the police officer.

15.Nevertheless, I consider that an attempt such as this on a weapon such as we are dealing with here must involve the imposition of a sentence of imprisonment.

16.The completed offence is an excepted offence which clearly shows the intent of the legislature that these offences should deter people from actions such as the defendant here was involved in on 29 August.

17.I fully bear in mind I am dealing with a man of clear record.  I consider the starting point for sentence for a person of clear record for an offence such as this should be one of 27 months’ imprisonment.  There are no other mitigating factors to reduce that sentence, so that is the sentence I will impose:  27 months’ imprisonment.