HKSAR v. TUNG HON FUNG

DCCC 168/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 168 OF 2015

----------------------

----------------------

---------------------

Reasons for Sentence

---------------------

1.  This is a case concerning possession of air guns. The defendant pleaded guilty before me to two counts of offence; one of attempting to possess, and the other of possession of, firearms without a licence, contrary to section 13(1) of the Firearms and Ammunition Ordinance.

2.  What happened was the defendant bought three air guns sometime in November 2013 on the internet and the goods were sent from USA to the defendant in Hong Kong.  The guns were dismantled into various parts, such as stocks, barrels, actions, triggers, etc, and then sent by two lots. The first lot was able to escape detection and was received by the defendant.  The second lot, however, was not and was intercepted by Customs Officers at the Air Mail Centre.

3.  The police went to the defendant’s address as shown on the parcel with a search warrant, which led to the arrest of the defendant and the discovery of the first lot.  The whole lot was taken to be examined by a forensic firearms examiner, Mr Lee, who assembled the parts into three air guns.  He also conducted tests with the guns in question and came to the following conclusion: 

air gun “A”- was capable of discharging 9-mm calibre pellet with muzzle energy at 123.74 joules;

air gun “B”- was capable of discharging .22 calibre pellet with muzzle energy at 37.07 joules;

air gun “C”- was capable of discharging .25 calibre pellets with muzzle energy at 48.13 joules.

4.  In his report, Mr Lee further elaborated that:

For air gun “A”- the discharged pellet attained velocity of 222.93 metres per second.

For air gun “B”, the discharged pellet attained velocity of 275.07 metres per second.

For air gun “C”, the discharged pellet attained velocity of 262.61 metres per second.

5.  He set out for reference from a published paper “Minimal velocity necessary for perforation of skin by air gun pellet and bullet” the following test results:

Air Gun Pellet/ Bullets	Velocities Necessary for Perforation of Skin
.177” calibre air gun pellet weighing 8.25 grains (0.53 grams)	101 metres per second
.22” calibre air gun pellet weighing 16.5 grains (1.07 grams)	75 metres per second
.38” calibre pellet (diameter 9.119mm) weighing (7.32 grams)	58 metres per second

6.  The defendant, aged 40, has four previous convictions, none of which was similar to the present offences.  He has one conviction of robbery back in 1990 for which he was sentenced to Training Centre. Six years later, he committed two offences of assaulting police officer and one offence of criminal damage and the whole matter was dealt with by way of fines.

7.  The court adjourned sentence to enable a background report to be prepared for the defendant.  Counsel said in mitigation that the defendant has been out of trouble for 19 years, since his last conviction in 1996, and throughout this period of time he was gainfully employed.  His last job at the time of arrest was a construction worker.

8.  Counsel said the defendant had the guns for collection as well as for bird shooting, and stressed that they were not used for any criminal purposes.  When probed by the court as to whether he had done any such hunting activities before, the answer was “No”. 

9.  In his letter to court, the defendant reiterated that he was remorseful for what he did, he fully cooperated with the police and he intended to plead guilty at the very first opportunity.

10.  It is true to say that the defendant has been out of trouble for some 19 years at least on the record.  But regarding his claims to be working at the time of arrest, I have doubt about it. 

11.  In his antecedent statement, it was stated that the defendant was unemployed at the time of arrest, but in mitigation his counsel told the court that he worked for a construction company at that time.

12.  In the background report, however, it was stated that “he claimed in the past couple of years he had worked as a construction worker, which he earned around $22,000 per month.  To prepare for the court hearing, he said he quit working 18 months or so.”  His counsel corrected it to say what he meant was he quit working in mid-April 2015.  That would mean he continued to work until about a month before this court hearing, which is in May 2015.

13.  The same applies to his claim that he had the guns for hunting.  The fact is, he had not taken part in any hunting activities before and there is no reason offered to explain why he suddenly had such a passion and why it was necessary to buy three guns instead of one. 

14.  Having said that, there is in fact no evidence before the court to contradict what he said.  Given the situation as it is, what I will do is to take what he said at its face value.  That would mean the court is prepared to accept that he had the guns for hunting when it comes to sentencing despite having doubt about it.

15.  There is no tariff for this type of offence.  In Leung Shiu-lun, CACC609/1996, the appellate court said in paragraph 14 of the judgment that, “The inclusion of air guns by reference to muzzle energy in excess of 2 joules, tends to suggest that the mischief aimed at is the danger to life and limb.” 

16.  In Leung’s case, the defendant pleaded guilty to possession of firearms without a licence and was sentenced to 18 months.  The firearms in question were three air rifles, three air pistols, one bag of plastic pellets and three boxes of metal pellets.  The rifles and pistols were examined by a firearms expert and found all to be .177 calibre with maximum measured muzzle energy varying from the lowest 2.3 joules to the highest 12.84 joules.

17.  The appeal was successful in that the sentence of 18 months was reduced to one of 10 months.  Declining to establish a general starting point for such offences given the lack of sufficient information, the appellate court considered that 15 months would be an appropriate starting point for the particular facts in Leung’s case.

18.  Turning to the instant case, though the defendant only had three air guns, which is less than in Leung’s case, each can have muzzle energy much higher than any of those in Leung’s case and even much higher than the legal limit of 2 joules. 

19.  In the expert report, for example, it was stated that the minimum velocity necessary for a .22 calibre air gun to perforate skin on human legs is 75 metres per second.  And compared to air gun “B”, which is also a .22 calibre air gun, the discharged pellet attained velocity is 275.07 metres per second, which is about 2.6 times more powerful.

20.  The defendant said he had the guns for hunting, but everybody knows that accident will happen and when it does, serious injuries may be caused to the victims who are unfortunately shot by such powerful air guns.  The defendant said he was not aware of the actual power of the guns, but only knew they should have been above the legal limit when making the purchase. 

21.  When questioned by the court that that was like saying buying a car on the internet without knowing its horsepower. The defendant said through his counsel that unlike car sale, the purchase of air guns is not legal. The seller might not state all the specification of details of the gun, such as its power in terms of joules.  Be that as it may, clearly the defendant intended to buy air guns which are more powerful than the law would allow and therefore he is the one to bear the consequences of having such powerful air guns at the end of the day.

22.  Based on the facts of the present case, taking into account all the mitigation put forward, for each offence I take 18 months as starting point.  As far as mitigation is concerned, apart from his plea there is nothing of substance.  It is reduced to 12 months after giving a one-third discount for his plea and I order that both terms be run concurrently with each other, and the total term is one of 12 months’ imprisonment.