HKSAR v. CHEUNG SIK WAI, TERRY

HCCC135/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO. 135 OF 2009

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant was convicted, after trial, of possessing a .38 calibre revolver contrary to section 13(1) of the Firearms and Ammunition Ordinance. The weapon was not loaded and no ammunition was ever found in the defendant’s possession.

  He had also, prior to trial, pleaded guilty to an offence of possession of an offensive weapon, namely, an iron bar, contrary to section 33(1) of the Public Order Ordinance.

  So far as the firearms offence is concerned, the verdict of the jury must have been based on the defendant’s admissions to the effect that he had purchased the revolver in China and had had it delivered to him in Hong Kong, where he had hidden it in the bodywork of his BMW motor vehicle.

  On the basis of information provided to them, police intercepted the defendant on 4 February of this year and searched his vehicle. The weapon was found hidden behind the internal mudguard of the car. By the Admitted Facts agreed at trial, the revolver was in working order but, prior to its testing, displayed no evidence of having been fired.

  Possession of a revolver is a serious offence. On the basis of the facts I have set out, I would have taken a starting point of sentence of 9 years’ imprisonment, even though the revolver had not previously been fired, was not loaded, and the defendant possessed no ammunition. However, I note also that, in 2004, the defendant was sentenced in the District Court to consecutive sentences of 2 years’ imprisonment and 2 months’ imprisonment for an offence of possession of arms and ammunition and an offence of possession of a simulated bomb, respectively.

  I accept, given the apparent leniency of those sentences, the statements from the Bar table that the arms involved in the first offence was a stun gun, and the simulated bomb was non-operable and intended only to frighten. Nevertheless, these offences being quite recent and also involving weaponry and simulated weaponry, I take as aggravating factors.

  Also, in my view, the importation of the present firearm into Hong Kong by the defendant is an aggravating factor. Logically, and not simply by analogy to drug cases, the bringing of a firearm into Hong Kong adds to the pool of weaponry available to criminals and heightens the risk to our citizens.

  I accordingly enhance the starting point to one of 11 years’ imprisonment on the basis of both those aggravating factors.

  There has been no mitigation of substance presented to me in respect of this offence and the defendant is sentenced to 11 years’ imprisonment in respect of the offence of possession of a firearm.

  So far as the offence of the possession of the iron bar is concerned, that weapon was found in the boot of the car during the same search that resulted in the finding of the revolver. The iron bar is of considerable size, being 1 metre long, and is designed for use. One end was wrapped so as to provide a proper handgrip.

  I take a starting point of sentence of 6 months’ imprisonment. That is reduced to a sentence of 4 months’ imprisonment given the defendant’s plea of guilty to this offence, which is the only mitigation available to him.

  Having considered the totality of sentence, I order that 2 months of the sentence imposed in respect of his possession of the iron bar be served concurrently with the sentence imposed in respect of the firearm offence. That is a totality of 11 years 2 months’ imprisonment.

  I might add that although there was evidence of the defendant having a chronic condition of bipolar affective disorder, I do not regard what I have heard in evidence in regard to his illness in that regard to be of such severity that it warrants any consideration as mitigation. The symptoms of that illness, as described by the psychiatrist called on behalf of the defendant during the course of the trial, in no way impinged upon the understanding that he must have had as to his commission of these offences.

  I might conclude by saying this. In my view, the defendant, given his present and prior convictions for possession of weapons or simulated weapons, including the finding of the iron bar in his motor vehicle, is plainly a danger to the community in Hong Kong.