CRIMINAL CASE NO. 77 OF 2009
COURT: The unlicensed possession of firearms, in this case handguns, together with ammunition suitable for use with those firearms, is an offence of the utmost gravity. As a result, such offences carry heavy terms of imprisonment. Sentences starting at 12 years’ imprisonment after trial are commonly imposed. You have been advised of that, Wong Chung-ling.
You pleaded guilty to a single count of possession of arms and ammunition without a licence, namely three self-loading pistols and 32 rounds of ammunition, and you now fall to be sentenced for that offence.
It is evident that you came into possession of at least one of these guns and ammunition suitable for its use in the mainland in 2004. You then lost control of it before it was brought to Hong Kong. Eventually, in mid-2006, possession of that gun, together with two others with suitable ammunition, was returned to you in Hong Kong, and you retained control over those guns and the ammunition for them until 2008. Thus, for a period of about two years, there were, unlawfully under your control in Hong Kong, three firearms and ammunition.
The lengthy sentences to which I have already referred are designed to deter such conduct because it is regarded as being of prime importance to the safety and security of the public in Hong Kong that all possible steps are taken to ensure that guns do not fall into the hands of criminals.
There is no evidence that these guns were in fact used in any way whilst they were in your possession or that you released them into the hands of others at any time. It is an unusual feature of this case that though you stored these guns, in due course you decided to give them up to the police, and eventually you did just that, revealing to the police their existence and their whereabouts. It is unnecessary to detail the exact circumstances of the surrender by you of these guns, since it is the fact of that surrender which is important for the purposes of sentence.
I have considered how that fact should be reflected in sentence: whether by a reduction in the starting point - that is to say the sentence which would be imposed but for your mitigation; or as an enhanced discount for mitigation over and above other discounts for mitigation such as your plea.
I say for the record that I have had regard to previous cases such as Chow Tak Fuk CACC428/2004 and others which are helpfully collected at page 381 of Cross & Cheung on Sentencing, 5th Edition. The surrender of a person whose participation in an offence might otherwise not have come to light is a significant mitigating factor, but cases are inevitably fact sensitive, and it is, as Stock JA said in Chow, always a contextual question. That is to say it depends on the circumstances.
The important thing is to ensure that the self-surrender in this case and the handing of the guns to the police so as to take them out of potential circulation is reflected in your sentence in a meaningful and significant manner.
In my judgment, in this particular case, the surrender of the guns is a matter which goes directly to the commission of the offence, as opposed to the surrender of an offender some time after the conclusion of the crime in question, and it is therefore more appropriate to adjust the starting point for sentence.
I can say without this factor I would take a starting point of 12 years’ imprisonment to reflect the number of firearms, the concurrent possession of ammunition, and the length of time they were possessed.
However, I judge that given your surrender of the guns, the appropriate sentence before discount for mitigation is 10 years’ imprisonment.
I now turn to the mitigation. You are a man of 58 years of age. You have a record of involvement with crime, but have not been before the courts since the mid-1990s, when you were sentenced to a substantial term for trafficking in dangerous drugs. You have pleaded guilty. You have expressed regret and remorse in your letter before the court, particularly in the light of your wife’s illness and the effect upon her of your absence through imprisonment. You have co‑operated throughout.
I take into account all the mitigation which appears on the papers before me, and I judge that the proper term of imprisonment in your case is one of 6 years. I am satisfied that this represents a proper discount for all the mitigation in your case, that it is fair to you, and fair to the community, which has an overriding and intense interest in preventing the possession of firearms and ammunition by criminals.
Your sentence is therefore one of 6 years’ imprisonment.