HKSAR v. Lam Lai Chiu

DCCC 87/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 87 OF 2014

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REASONS FOR SENTENCE

1.The defendant pleaded guilty to a charge of "Possession of arms without a licence". The subject matter is a stun gun.

Summary of Facts

2.About 2:00 p.m. on 27 June 2013, Mr. LEE (PW1) was at Carpark No.2 of Kwai Fong Estate, taking the elevator from the 7^th Floor to the Ground Floor.  The defendant and his friend (LIN) went into the elevator on the 4^th Floor and stood behind PW1.

3.In the elevator, PW1 heard sparking sound from behind.  He turned around and saw the defendant holding a stun gun.  Electric sparks were coming out from the electrodes of the stun gun.

4.The defendant and LIN exited on the Ground Floor.  PW1 followed them to a nearby restaurant.  The defendant and LIN went into the restaurant.  PW1 called the Police and waited outside.

5.About 2:50 pm, the defendant and LIN came out of the restaurant.  The Police intercepted them.  Upon search, a stun gun was found in the defendant's shoulder bag.

6.In his video-recorded interview, the defendant admitted that he asked his wife's employer to purchase a stun gun in the mainland for his wife to be used for self-defence.  His wife works in a currency exchange located at Kwai Fong Estate.  About 10:00 am on 27 June 2013, the defendant went to Shenzhen to pick up the stun gun.  He returned to Hong Kong about   1:00 pm on the same day.  Whilst in the elevator, LIN heard some sparking sound from his shoulder bag.  The defendant took out the stun gun to have a look.  He told LIN that it is a stun gun and demonstrated it to LIN.

7.The Police tested the stun gun and confirmed that it could function properly and could be classified as a portable stunning device.  Its peak-to-peak pulsating voltage is 161,910 volts.  A forensic pathologist confirmed that the electric shocks from the stun gun are capable of causing a human subject to lose his/her ability to stand up and rendering him/her to be immobilized, incapacitated and left dazed and weak for 5 to 15 minutes.

8.The defendant does not hold a licence for possession of the stun gun or dealer's licence therefor.

Mitigation & Sentence

9.The defendant is now 47, married with 3 adult children.  He was born and raised in the mainland.  He has performed military service for 4 years in the mainland.  He immigrated to Hong Kong in 1993.  He has a clear record and currently works as a cross-border driver earning about $18,000 per month.

10.A bundle of mitigation letters was placed before me; their contents are duly noted.  Defence counsel Mr. TSE stressed that the defendant is a caring husband and responsible father.

11.In mitigation, Mr. TSE submitted that the defendant committed the present offence due to his ignorance of the law.  The mere fact that he took the stun gun out of his bag and showed it to his friend in the presence of PW1 is clear indication that the defendant did not know any better.

12.Mr. TSE further submitted that according to the defendant's understanding, stun guns are lawful in the mainland and are available everywhere north of Hong Kong.  Finally, Mr. TSE submitted that there is no evidence showing that the stun gun involved in the present case is lethal.

13.Possession of arms without a licence in Hong Kong is a serious matter.  A clear message must be conveyed to the general public that Hong Kong courts do not treat this type of offences lightly irrespective of the purpose of possessing arms.  An immediate custodial sentence is inevitable even for fresh offenders. 

14.I have considered a number of Court of Appeal's decisions on the sentencing of stun gun offences[1]. The stun guns in those cases were of a significantly lower voltage (all below 80,000 volts) than the one in the present case.  On this issue, Mr. TSE submitted that the voltage of the stun gun does not have a determining effect in this case since the defendant had no intention to use it.

15.Based on the materials before me, I accept there is no evidence to suggest that the defendant would use the stun gun for illegal purposes in Hong Kong.  I also accept it may be true that the defendant had a genuine (albeit mistaken) belief that stun guns are not illegal in Hong Kong and that he saw an occupational need (albeit a misconceived one) to give one to his wife for her own protection.  Although an immediate custodial sentence is inevitable, the mitigating factors mentioned above do warrant a lower starting point and allow me to temper justice with mercy.  On the other hand, I cannot overlook the high voltage of the defendant's stun gun.

16.Bearing all relevant factors in mind, I adopt a starting point of 18 months' imprisonment. A one-third discount is given for the guilty plea, reducing the sentence to 12 months.  Apart from this, I see no other mitigating factors which warrant any further discount.  Thus, I sentence the defendant to 12 months' imprisonment.