HKSAR v. SIN KA LEUNG

DCCC 50/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 50 OF 2015

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Reasons for Sentence

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1.   A month ago, the defendant pleaded guilty before me to one charge of possession of arms without a licence, for his possession of 10 airguns which were found at his home on 25 April 2013. 

2.   Under section 2 of the Firearms and Ammunition Ordinance, Cap. 238, “arms” includes an air rifle, airgun or air pistol from which any shot, bullet or missile can be discharged with a muzzle energy greater than 2 joules. 

3.   Seven out of the 10 airguns could produce muzzle energy from 2.32 to 10.67 joules.  The remaining three were powerful ones as they could produce energy of 22.97, 36.77 and 42.81 joules respectively.  Some pellets for the airguns were also seized from the defendant’s premises. 

4.   The defendant is aged 49 with a clear record.  He is married with no children. 

5.   Mr Harris, Senior Counsel, in mitigation on behalf of the defendant immediately recognised the seriousness of the offence and accepted that an immediate custodial sentence would be the norm of the sentencing options.  However, he sought to persuade the court that there were exceptional circumstances in this case and invited the court to take an exceptional course-by remanding the defendant in custody for the preparation of full pre-sentencing reports including a Government Psychologist’s report and a Community Service Order Suitability report. 

6.   To justify this suggestion, the defence called Professor Peter Lee, a Chartered Clinical and Health Psychologist, to give evidence in court.  His expertise is not challenged. 

7.   Practising in the Hong Kong Sanatorium and Hospital, Professor Lee is also the Honorary Consultant of Queen Mary Hospital, Honorary Professor of the Department of Psychiatry, HKU and a Professor of the Department of Psychology, CUHK.  After four sections of psychological assessments of the defendant, Professor Lee came to the opinions in his report dated 2 October 2013.  The salient points can be summarised as follows:-

1) Firstly, while not amounting to the full-blown disorder, the defendant presents with characteristics of the Asperger’s Disorder. His obsessional interest in airguns borders on abnormality and is likely an integral part of this underlying psychological disorder.

2) Secondly, given his social isolation, autistic-like perspective and his one track mind, he was impaired in his judgment regarding the potential hazards of his acts.

3) Thirdly, the defendant did not present with any other high risk signs of psychopathic individuals.

4) Fourthly, the likelihood he would re-offend is very low.

Professor Lee’s evidence in court is in line with the opinions in his report.

8.   Having heard the submissions of Mr Harris and the evidence of Professor Lee, I was persuaded that I should call for reports for more background information of the defendant and for a Government Psychologist to comment on the opinions of Professor Lee.  I also agreed with the suggestion, which was one properly made, of remanding the defendant in custody as an immediate custodial sentence is the norm for the serious charge which the defendant pleaded guilty to unless there are wholly exceptional circumstances.  The Probation officer preparing the background report of the defendant was also invited to comment on the defendant’s suitability to perform a Community Service Order.  I gave a clear warning to the defendant that imprisonment as an option of sentence was in my mind. 

9.   On 21 April, the Probation officer’s report and a Psychologist’s report prepared by Miss Winnie Wong were available to both parties.  The Probation Officer’s report revealed a full background of the defendant.  He is aged 49, married, living with his wife with no children at the premises they own where the airguns were found.  The mortgage of the self-owned flat has been fully paid off. 

10.   The defendant used to run his own printing machinery companies which were said to be a lucrative business until 2012 when he sold off shares of one of his companies and remained self-employed in his own printing machinery company.  He is now living in a semi-retired style.  He and his wife are now engaged in volunteer work every week. 

11.   The Probation officer describes the defendant as a hardworking man who has all along led a stable and law-abiding life with his wife.  In tears, the defendant pleaded before her for a non-custodial sentence.  In view of his regretful attitude, his clear record and his willingness to perform unpaid work to compensate for his wrongdoing, a Community Service Order as a sentencing option is recommended to the court.

12.   In the report dated 17 April 2015, the Government Psychologist, Miss Wong, is generally in agreement with the opinions of Professor Lee save and except that she found insufficient evidence to suggest that the defendant suffers from autistic spectrum such as Asperger’s disorder.  According to her clinical assessment, there is no evidence to suggest significant deficits in the defendant’s emotional management or impulsive control.  The defendant, however, shows insight to his offending behaviour and is not at significant risk for violent re‑offending.

13.   In view of her difference in opinion as to the defendant’s extent of possessing the characteristics of Asperger’s disorder, the prosecution applied to adjourn the case, which I granted, to call Miss Wong to give evidence in court.  I also directed that a supplemental report be prepared by Miss Wong giving the reasons for her disagreement. 

14.   This morning, both Professor Lee and Miss Wong were in court to resolve their differences.  I am grateful to them for their time and assistance to the court. 

15.   Professor Lee testifies again in court to claify his report and it is clear now that Professor Lee does not classify the defendant psychiatrically as suffering from the Asperger’s disease in a full-blown manner.  He draws our attention to paragraph 57.1 of his report:-

“While not amounting to the full-blown disorder, Mr Sin presents with characteristic traits, interests and behavioural propensities, characteristics of individuals suffering from an Asperger’s disorder.”

16.   The relevance of these characteristic traits is that in his opinion they significantly affect the life of the defendant.  The defendant has impaired social, emotional reciprocity and a strong insistence on sameness and predictability.  His obsessional interest in airguns borders on normality and is likely an integral part of his underlying psychological disorder.  As the Chinese saying goes, he explains, “The slow cooking kills the frog without the frog knowing”.  Because of the impairment of his judgment regarding the potential hazards of his acts, he has a pathetically low sense of danger.  As a result of the clarification, it becomes apparent that the two experts are in general agreement.  I would accept the opinion of Miss Wong that the defendant is not suffering from Asperger’s disorder.

17.   That said, I would also accept the opinions of Professor Lee that the defendant, having the characteristics and traits of individuals suffering from an Asperger’s disorder, was impaired in his judgment regarding the potential hazards of his acts.  He is a kind of person having low sense of danger. 

18.   Having considered the opinions of the two experts, I am satisfied that the defendant is not a person with propensity to commit crimes of violence or otherwise.  He has no intention to use the airguns in this case to commit any crime, he poses no real danger to the public.

19.   The offence which carries a maximum sentence of 14 years’ imprisonment and a maximum fine of $100,000 is no doubt a serious offence.  While the subject matter of the offence is not firearms, given the power of some of the airguns, they are dangerous if shot at short distance.  Arms can present a risk to the community as they could be used for illegal purposes and might fall into the hands of people with such evil mind. 

20.   While there is no tariff for the offence, the Court of Appeal in HKSAR v Chan Chi Fun¹, a case submitted to the court by the prosecution, 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 grave danger to the society. In determining the appropriate sentence, the mitigating or aggravating factors included a) the type of firearm and ammunition involved; b) whether the defendant physically carried the firearm and ammunition; c) whether the firearm was loaded; d) whether the firearm had been used; e) whether the defendant intended to use the firearm for illegal purposes; f) whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders, and g) whether the defendant had a clear record. The level of sentence depended on the court’s view of the potential risk posed by the firearm and ammunition in question taking into account the circumstances of the case and the defendant’s background.”

21.   The judgment was cited with approval by the Court of Appeal in The Secretary for Justice v Leung Kwok Chi², another case relied upon by the prosecution.  The Court of Appeal in this case reiterated that possession of arms and ammunition without a license is always considered to be a very serious offence in Hong Kong as they can create grave danger to the public.  It is only by adopting stringent approach to the unlicensed possession of arms and ammunition that the court can ensure that Hong Kong continues to be a safe city.  The Court of Appeal, however, recognises that there are varying degrees of culpability and possession as a hobby with no risks of the firearms or ammunition being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale. 

22.   The Court of Appeal endorsed the relevant factors on sentence laid down by Woo VP in Chan Chi Fun.  Woo VP emphasised at paragraph 19 of his judgment that the basis for sentencing in respect of this type of offence is abundantly clear.  The level of sentence depends on the court’s assessment of the potential risk posed by the arms and ammunition in the defendant’s possession taking into account the circumstances of the case and the defendant’s background.

23.   In The Secretary for Justice v Yan Shen³ in which the respondent was also represented by Mr Harris and Professor Peter Lee also gave his expert opinion as a defence witness, Mr Justice Stock, VP, as he then was, had this to say:-

“However, in the case of unlicensed possession of firearms, society protection is a paramount consideration. It is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration. It is a category of offence which in general requires a deterrent sentence by which is meant “sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider.”

He continued at paragraph 38 of the judgment:-

“What then are exceptional circumstances? It would be unwise to suggest examples but we suggest that an exceptional case will tend to be the case where the reasons for a non-custodial sentence when explained will readily be understood by the public to be sufficiently unusual to warrant a departure from the tough norm.”

24.   It was emphasised that the element of general deterrence is the paramount consideration and that save in exceptional circumstances a conviction of the offence will be met by immediate custodial term.  A caution was also issued that care must always be taken in assessing personality disorders and the degree to which such disorder is relevant to sentence. 

25.   This is not an easy matter for a sentencer.  Before me is a person of previous impeccable character with a successful career and business in the past decades.  With sufficient means to support himself and his wife, he is now living a semi-retired lifestyle enjoying his hobby in the collection and mechanics of airguns.  I accept that he has never taken the airguns out of his home or used or intended to use them for any illegal purpose.  Being a fanatic in mechanics, what he enjoyed in the collection of airguns was not the shooting but the mechanics of airguns.  As Professor Lee observes, his gratification was a sense of fulfilment in overcoming the airguns’ inadequacies, gaining better understanding of the mechanics involved and a feeling of control over the entire airgun system. 

26.   In the mitigation letters submitted to this court, the defendant is described by his acquaintances, and I accept, as a good and benevolent person who is modest, gentle and candid.  In the eyes of his parents, the defendant is a filial and honest son.  To his wife he is, however, a timid person with a tough and rigid appearance.  She never saw him cry in the last 20-odd years until after the arrest for this case that he cried many times in front of her.  It is also noted that when he was interviewed by Professor Lee and Miss Wong, the defendant broke down in tears expressing his guilt and remorse. 

27.   In fact as early as the time of arrest, he had admitted the offence and fully cooperated with the Police.  Mr Harris confirms that soon after the arrest, the defendant approached him for advice with the intention to admit the offence throughout the past two years knowing full well that he might go to prison for the offence.  I am satisfied that the defendant is genuinely remorseful.

28.   The offence came to him and his family as a shock when the defendant was advised by Mr Harris that the likely sentence would be one of imprisonment for the offence he has committed.  In the past two years after the arrest he and his wife suffered from anxiety.  As a result of her arrest for this matter and the subsequent bail condition, the wife’s depression, which was a pre-existing condition, deteriorated in 2014.  The defendant feels very sorry for his wife and takes all the blame on himself.

29.   The delay in bringing the defendant to court while not criticised by the defence has no doubt enhanced the stress and anxiety suffered by the couple and their parents. 

30.   I acknowledge that the presence of the defendant’s wife, his parents and parents-in-laws in court in all the hearings is impressive.  The defendant should be thankful for their support. 

31.   I am sure that the defendant has surely learned his lesson.  He has heard the clang of the prison, as Mr Harris put it, when defendant has been in jail for three weeks for preparation of the reports.

32.   Care must be taken in considering the relevance of the defendant’s personality disorder.  I accept the opinion of Professor Lee that the defendant has the characteristics and propensities of individuals suffering from Asperger’s disorder although not to the extent of full-blown disorder.  His interest in airguns is likely an integral part of his underlying psychological disorder.  He was indeed impaired in his judgment regarding the potential hazards of his acts resulting in low sense of danger as if he was only playing with his personal toys.  That, no doubt, only reduced rather than removed his moral culpability.

33.   The defendant is not unaware of the licensing regime of airguns in Hong Kong.  However, I accept that his moral culpability is mitigated by the fact, which I take judicial notice, that airguns are freely available at shops in Mong Kok resulting in a confusion and underestimation of the legal consequences, in particular to a person who has low sense of danger. 

34.   Not much weight can, however, be placed upon the voluntary service of the defendant with Unicef which was performed mainly after his arrest in 2013 and 2014. 

35.   I am of the view that given the nature of the arms (being airguns instead of firearms), the fact that they were all kept and stored properly at his home and never taken out of the premises, the risk of their falling into the hands of undesirable people is minimal.

36.   At the end of the day, with all these personal factors of the defendant, whole circumstances of the case and the sentencing principles in mind, how should I sentence the defendant to achieve the correct balance? 

37.   I have compared with a few sentencing cases.  In R v Hirai Hilrotsugu⁴, a case referred to in Chan Chi Fun, the defendant, a Japanese merchant, was fined $360,000 for possession of 10 revolvers, 38 pistols, 5 airguns and almost 1,500 bullets.  The arms and ammunition in question were weapons from the Second World War and were just a personal collection with no intention for any illegal purpose.  It was said that as they were properly stored, there was no risk of any threat to the public. 

38.   In the case of Yan Shen, the defendant was in possession of one pistol with magazine at the Hong Kong International Airport.  He was due to depart Hong Kong when the pistol was detected in a hand-carried rucksack belonging to him.  It was a functional weapon.  The original sentence being a Community Service Order and a heavy fine, on review by the prosecution was criticised by the Court of Appeal as outside the range which a judge applying his mind to all the circumstances could reasonably impose.  The Court of Appeal found that the judge erred when he found that the possession of the firearms by the defendant did not pose any risk or danger to society.  The appropriate sentence would have been in the range of 18 months’ imprisonment.  The original sentence was, however, not interfered with for matters that occurred after the sentence. 

39.   A non-custodial sentence in the District Court for possession of airgun is not unprecedented.  In a chinese Reasons for Sentence HKSAR v Chan Chi Wan⁵, the defendant possessed four air rifles, five air pistols and one crossbow.  His Honour Judge J Yau, as he then was, sentenced the defendant by way of Community Service Order.  He took into account factors that included the defendant having a good family background and clear record, his genuine remorse, the arms in question did not pose great risk of danger to the public and the unlikelihood of the defendant’s re‑offending.

40.   Having considered all the circumstances of this case, I am satisfied that the appropriate sentence is a Community Service Order.  To enhance the effect as general and individual deterrent, I would also impose a heavy fine.  I am satisfied that the criteria in R v Brown⁶, as adopted by the Court of Appeal in HKSAR v Chow Chak Man⁷ have been met.  In my view, the order should not be regarded as a soft option.  I am satisfied that the sentence can achieve both the general and individual deterrent effect in the special circumstances of this case.

41.   The defendant is sentenced to Community Service Order for 240 hours and a fine of $50,000 to be deducted from his bail.

1.  [2006]1 HKLRD 128

2.  [2013] HKCU 870, CAAR 6/2012 unreported

3.  [2012]3 HKC 557

4.  HCCC 30/1995, unreported

5.  DCCC 505/2010, unreported

6.  (1981)3 CR App R(s) 294

7.  (1999)2 HKC 659, 663