HKSAR v. LI HUNG KWAN

CACC 250/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 250 OF 2002

(ON APPEAL FROM DCCC NO. 332 OF 2002)

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J U D G M E N T

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Hon. Cheung J.A. : (giving the judgment of the court)

1. The applicant pleaded guilty in the District Court to two charges. The first one was for possession of arms, namely a stun gun, without licence. The second one was for the offence of remaining in Hong Kong without the authority of the Director of Immigration after having landed unlawfully in Hong Kong. In relation to the first charge, His Honour Judge Wright used a starting point of four years, reduced it by one third because of the guilty plea and the sentence was 32 months' imprisonment. In respect of the second charge, the sentence was 15 months' imprisonment, the sentences are to be served consecutively.

2. The applicant now seeks leave to appeal against sentence in respect of the first charge.

3. The stun gun was capable of generating a high pulsating voltage, some 35,000 volts, when operated in the air. If applied to the equivalent of the human body, the device produced an electrical output of some 12,000 volts. If applied to a human body, the device was capable of causing pain, muscular contractions and even temporary incapacitation.

4. The applicant was arrested at a construction site in Lantau Island. Upon his arrest, he stated that he came to Hong Kong illegally about three weeks before and he claimed that he went to the construction site to look for a job. Inside the waistbag which he was carrying the police found the stun gun. The applicant told the police that he had picked up the stun gun from a pile of rubbish at the same site four days prior to his arrest. He denied having used it in the intervening period.

5. Mr. Hoosen, counsel for the applicant, submitted that the starting point of four years' imprisonment is too high. He submitted that the learned judge had failed to consider the expert's evidence that the amount of output voltage generated by the battery-powered device was small. He had also erroneously found that the stun gun was disguised as a torch and the applicant had used the device for a number of days. The learned judge had also inconsistently found that the stun gun could not have had any lawful use when the applicant was only charged with possession.

6. Paragraph 7 of the summary of facts stated that

“ PW4 concluded that although the peak output voltage produced by this kind of device could be very high, the amount generated by the battery-powered device is small. "

7. In our view, the learned judge had not ignored what the expert said. The expert was merely contrasting the 35,000 volts when the stun gun was operated in the air and the 12,000 volts generated by it when it was applied to the equivalent of a human body with the above statement. In our view, nothing turns on this ground.

8. The stun gun was in the shape of a torch. The prosecution described it as a torch light object. This Court had seen a similar device in the past which was indeed made in the shape of a torch. It could also be used as a torch. Although the learned judge described the object as being disguised as a torch, we do not consider this to have a bearing on the sentence actually imposed in this case.

9. This appeal turns on the purpose for which the applicant intended to use the stun gun.

10. In the recent case of 香港特別行政區訴黃永煌 (HKSAR v. Wong Wing Wong) CACC No. 214 of 2002, this Court reviewed a number of previous decisions concerning stun gun. In that case the appellant pleaded guilty to the offence of possession of a stun gun which has a voltage of 20,000 volts. He was arrested at the border checkpoint when the stun gun was found. The sentencing judge used two and half years' imprisonment as the starting point. Because of the guilty plea one third discount was given, reducing the sentence to 20 months' imprisonment. On appeal, this Court reduced the sentence to 12 months' imprisonment. The appellant claimed that he bought the gun in the Mainland which was freely available and was publicized in advertisements. The purpose for which he bought the gun was for self protection because he had been robbed in the Mainland before. The court regarded the starting point of two and half years as being too high because there was no evidence to suggest that the appellant would use the gun for illegal purpose in Hong Kong.

11. In R v. Cheng Yu Cheung CACC No. 57 of 1995, the appellant possessed a stun gun which could discharge 5,200 voltage. Two and half years' imprisonment was used as a starting point. Because of the guilty plea the sentence that was finally imposed was reduced to two years. The appellant had asked a co-defendant to keep the stun gun for him when he left Hong Kong. He had not handled the stun gun for two and half years. He claimed that he bought the gun for self protection because he had been attacked by loan sharks. This Court reduced the sentence to one year imprisonment.

12. In R v. Lai Chi Fai CACC No. 480 of 1995, the appellant possessed a stun gun which could discharge 4,800 volts. At the time of his arrest, he was with another man who was in possession of another imitation firearm. The appellant committed the offence while he was on bail in relation to another offence. He committed further offence later on. This Court used four years as the starting point. One third reduction was given for the guilty plea and the sentence imposed was two years and eight months' imprisonment.

13. In R v. Wong Chuen Pong CACC No. 579 of 1996, the stun gun could discharge 60,000 volts. The appellant pleaded guilty and claimed that the stun gun was used for self defence. A sentence of two years' imprisonment was affirmed.

14. In R v. Lau Kwok Hung CACC No. 551 of 1998, the appellant claimed that he possessed the stun gun for self defence. A sentence of one year's imprisonment on the guilty plea was affirmed by this Court.

15. In HKSAR v. Hung Chun Kit CACC No. 579 of 1998, the appellant was sentenced to two years' imprisonment after trial for possession of the stun gun. Appeal on sentence was dismissed.

16. In HKSAR v. Yung Ting Chun CACC No. 164 of 1999, the appellant was in possession of a stun gun which could discharge 75,000 volts. He was imprisoned for two and half years after trial. Appeal on sentence was dismissed.

17. In Wong Wing Wong this Court was of the opinion that, as a deterrence, an immediate custodial sentence is required for offence of this type. However, the starting point to be adopted has to be considered in the light of the facts of each case. There is no tariff imposed for this offence.

18. In this case the voltage capable of being discharged by the stun gun can be described as in the middle-lower range. While this stun gun is capable of being used for unlawful purposes, there is no evidence that the applicant had used it for unlawful purposes. Although the applicant had not explained what he intended to do with the stun gun, on the facts disclosed, the starting point of four and half years' imprisonment is manifestly excessive and was not in line with the many previous decisions. R v. Lai Chi Fai was a far more serious case. In R v. Wong Chuen Pong, the appellant was also charged with an offence of possession of a converted .22 calibre starting pistol and 98 rounds of ammunition (96 of which were usable), hence the sentence of two years' imprisonment for the stun gun could be justified on the basis that the stun gun was intended to be used for some illegal purpose, although it was accepted that at the time of his arrest with the stun gun, the appellant was not engaged in criminal activity.

19. Unless there was an inquiry, the court had to proceed on the basis that the applicant picked up the stun gun on the construction site. Even if the applicant had not disclosed the purpose he intended to do with the stun gun, in the absence of evidence which may suggest that it will be used for some illegal purpose, we are of the view that the starting point should be 20 months' imprisonment. This will be reduced by one third because of the guilty plea. The sentence will be one year imprisonment.

20. We will treat the application for leave as the appeal proper. The appeal is allowed and the sentence for the first charge is reduced to one year imprisonment.