HKSAR v. MOUSSARD LAURENT

DCCC1316/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1316 OF 2011

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Reasons for Sentence

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1.  The defendant in this case pleaded guilty to charges of assault occasioning actual bodily harm, possession of a stun gun and possession of a knuckleduster with a metal blade and two stalls. Two charges of criminal intimidation and a charge relating to the defendant’s alleged possession of an imitation firearm, namely, an air pistol, were ordered to be left on the court file not to be proceeded with without the leave of the Court of Appeal.

2.  The victim of the assault was referred to throughout the proceedings as a Miss X. 

3.  The facts admitted by the defendant disclose that in 2005 Miss X, who was then aged 21, worked in a catering company where she came to know the defendant.  Miss X was a subordinate of the defendant at the time.  In 2008 the two developed an intimate relationship.  Later PW1, Miss X, and the defendant resigned from the company and worked together in another company.  Sometime in 2010 Miss X left the company and no longer worked together with the defendant and since that time they have spent less time together as the defendant usually worked in Guangzhou.  In May 2011, Miss X told the defendant she wanted to break up with him.  However, the defendant tried repeatedly to get back together with her, but in vain.

4.  At around 1715 hours on 15 September 2011, the defendant arrived in Hong Kong via the Lo Wu Control Point.  In the evening of 15 September he checked into Room 2344 at the Panda Hotel in Tsuen Wan.

5.  At around 0805 hours on the morning of 16 September 2011, the defendant alone entered the lift lobby of Miss X’s residence.  At that time the defendant was in possession of an electric stun gun, which was referred to as Exhibit P1, and a knuckleduster with two stalls, which has been referred to as P2.  These items were carried with him in a black backpack, which was referred to as Exhibit P3.

6.  At around 8.15 on 16 September, the victim, Miss X, was alone in her residence and getting ready to go to work.  As she was about to leave her home she found the defendant suddenly appearing and standing at her front door.  At that time the defendant was carrying the black rucksack with him.  He shoved Miss X back into her flat, making the victim fall down and it resulted in injuries to her head, shoulder, wrist and finger.  The defendant entered the flat and closed the door.  The defendant threatened the victim to get back together with him and told Miss X to make a decision and to go to the Panda Hotel in Tsuen Wan with him.  The victim felt very frightened.  Miss X told the defendant that she had a very important work commitment that morning at about 10 am and that if she was absent, her colleagues would look for her. After hearing this, the defendant accompanied Miss X to take a taxi to her place of work.  They left Miss X’s residence at around 0915 hours on the same day.

7.  Miss X and the defendant boarded a taxi.  Inside the taxi the defendant took out Exhibit P2, this is the knuckleduster with the two stalls, from his trouser pocket and brandished it between his right thigh and the victim’s left thigh.  The defendant urged, Miss X, to get back together with him and give him an answer.  Miss X felt very frightened and told the defendant that she needed more time to consider.  At around 0955 hours the taxi arrived at Miss X’s place of work and the defendant told Miss X that he would pick her up at 1800 hours.  Miss X made a police report as soon as she got back to her office and the police received this at 1058 hours.

8.  The victim was later medically examined at 2.13 on 16 September at the hospital and was discharged the same day.  Medical findings were that she had abrasions over her left hand; she had a bruise over her left shoulder and right wrist; and bruise, swelling and tenderness over the left middle finger.

9.  The taxi driver who had driven the couple from the home of Miss X to her place of work recalled picking up a young Chinese female with a middle-aged foreigner on the morning of 16 September at around 9 am.  The taxi driver recalled that the female was tearful and that the foreigner spoke to the female in a low voice.  The taxi driver said he did not understand English.

Charges 4 and 5

10.  At around 1537 hours on 16 September, the defendant was arrested by officers in his room at the hotel.  A search was conducted in his room and the following items were found.  From the black backpack, P3, which was placed on the sofa, the two items, P1 and P2; and also a knuckleduster with four finger-stalls; a Switzerland military multipurpose knife; a paper cutter; 31 plastic strips; a black folding razor; two rolls of adhesive tape; two packets of cigarettes; some medications; and a Vertu mobile phone.

11.  From a suitcase which was found inside the defendant’s room the police recovered an air gun with magazine; a mobile phone; a digital camcorder; and from a cabinet they found a compressed gas bottle; a packet of propel plastic pellets; and a Blackberry mobile phone. 

12.  A cable for charging P1 and an iphone were also located inside the defendant’s room.

13.  At 1622 hours, the defendant was cautioned for possession of P1, P4 and the Switzerland military multipurpose knife, the cutter, the air gun and the black folding razor.  Under caution he said, “I understand what you say.  Those items belong to me.  I use them for self-defence and to protect myself.”

14.  P2 and P4 were subsequently sent to the Police Forensic Firearms Examination Bureau for examination.  The weapon expert confirmed that P2 is a flat steel plate with two finger stalls and a curved blade on one side.  It was designed to fit in the palm with a clenched fist and the blade can protrude on either side of the hand.  P4 is a palm-sized knuckleduster made of solid steel.  It comprises four finger stalls that are rigidly connected to a base and curved bar.  It is designed to be held in a clenched fist.  It weighed about 2 ounces with black enamel finish and a padded palm bar.

15.  P2 and P4 are knuckledusters and are prohibited weapons as defined under the Weapons Ordinance, Cap.217.

16.  P1, which is a stun gun, was sent to the Police Telecommunications Inspector for examination.  On 19 September, the initial function test was conducted on P1 and it was found to be functioning properly. A detailed function test was carried out a few days later after it had been charged for 5 hours.  It was confirmed that P1 was a stunning device capable of generating peak-to-peak pulsating voltage of 358.3 kilovolts when loaded with human body-like resistance.  It was capable of generating 10,714 high voltage pulses continuously in 3 seconds duration.

17.  The defendant was subsequently identified at an identification parade conducted on 26 September.

18.  At the material times, the defendant did not have a licence for possession of any of the arms or a dealer’s licence, therefore, nor was he exempted from such.

19.  The defendant is 42 years of age and has a clear record.  Very extensive and persuasive mitigation was submitted by counsel acting on behalf of the defendant.  It was urged upon the court that this was, although a serious matter, it was completely out of character for this defendant to be involved in an offence of this type.

20.  Counsel submitted that this was a most unusual case.  He said that it had all the hallmarks of a television drama.  Counsel described the defendant as being a man approaching middle-age, happily married, successful in his career, who fell in love with a beautiful young woman to the extent that it became an obsession. 

21.  Counsel said that the relationship, which last for 2 years from 2009 to 2011, was intense, it was impetuous and passionate.  Counsel said that in May 2011, Miss X wished to end the relationship and the defendant had enormous difficulty accepting this.  Counsel said by that stage the defendant was suffering from clinical depression.  In August 2011, he consulted a Dr Fong, who diagnosed that the defendant was suffering from severe depression and prescribed a short course of anti-depressant tablets which were found in his hotel room when the police raided his room.  Dr Fong again saw the defendant in February 2012 and noted that his condition had improved significantly and was in the range of normal.

The events of 16 September

22.  Counsel said that this was an act of desperation.  The defendant came to Hong Kong on the evening of 15 September 2011 in a last bid to try and persuade Miss X to return to him.  Counsel said that the defendant had no intention of harming Miss X but he had become so desperate that he decided to harm himself if he was unable to persuade her to return to him. 

23.  The defendant accepted that when he entered Miss X’s home he pushed her rather than hit or slapped her but she tripped over a rubbish bin and fell to the ground causing the relatively minor injuries referred to in the Summary of Facts.

24.  Counsel said that Miss X told the defendant that she had an urgent commitment at her office and needed to be there by 10 am. Counsel said that whilst they were sitting in the taxi on the way to her office he did produce P2, a knuckleduster with two stalls.  He said that he held this in his right hand between them but the blade attached was pointing towards the defendant to demonstrate his desperation and also the indication that if she refused to return to him he would harm himself.

25.  Counsel produced a transcript of a conversation between the defendant and Miss X which took place on 2 September 2011, this was marked D4 in the exhibits produced by the defence, and he also produced various SMS messages in which the defendant stated that he would commit suicide if Miss X refused to resume their relationship.

26.  Counsel for the defendant said that at the time of leaving the taxi Miss X phoned him, leaving her new mobile phone number on his phone.  Counsel said that this indicated the strange nature of their relationship.  Counsel also pointed out that after Miss X got out of the taxi to go to her office she took more than an hour to decide to ring the police. Counsel said this also demonstrated the ups and downs of this strange relationship. 

27.  It was confirmed by the police that the telephone call was made whilst they were in the taxi and that a mobile phone which had been supplied by her employer was used for that purpose.

Possession of the weapons

28.  Counsel said that the defendant was a victim of an attack in a club in Guangzhou.  This was confirmed by a statement from a business colleague whose statement was produced as defence Exhibit D5.  Counsel said that the defendant was later the victim of a robbery on the Mainland and thereafter he became increasingly vigilant about his personal safety.  He said that when travelling in Bangkok with Miss X they had noticed that stun guns were freely available for sale, and after discussion with Miss X, he decided to buy one for his self-defence on the Mainland.  Counsel said that the defendant did not realise it was a serious offence in Hong Kong as such items were freely available in the rest of Asia.

29.  Counsel said that the knuckleduster, P4, was a free gift with P1, and he pointed out that the larger knuckleduster was not in his possession when he met Miss X; it was recovered from his room when it was raided by the police.

30.  Counsel said that in relation to the smaller knuckleduster, P2, which was in his possession and which he produced whilst on board the taxi, that this was purchased in Hong Kong and is freely available here.  He produced the business card of a local shop that sells them as defence Exhibit D3.

Background of the defendant

31.  Counsel said that the defendant was born in Versailles in 1970, he is married with twin daughters aged 4 who live with his wife in Macau.  He has an elder sister, his father was a headmaster of a school and his mother was a teacher.  He said they were a closely-knit family.  His father was in the public gallery at the hearing of this case and I was told by counsel that his mother was too upset to attend the proceedings.  Counsel said that his elder sister lives and works in Paris for an international charitable organisation assisting unfortunate children.

32.  The defendant graduated in business studies from a top French business school.  The defendant completed his National Service in 1995 and since then has been involved in the business of airline catering at various levels of seniority and in various locations.  It was in Macau that he met his wife in 1997 and they travelled together.  The defendant more recently worked in Hong Kong at a senior level and it was whilst working here that he met Miss X.  After they met, he worked for a company on the Mainland. 

33.  An extremely complimentary letter was provided by his employer and produced as D7.  The letter refers to the defendant’s integrity and dedication.  Counsel stated that his employers would continue to employ him after he has completed any sentence that might be imposed by this court.

34.  A character reference was given by a partner of a local law firm which had acted for a company for whom the defendant worked. In this letter, the author said he was surprised to learn of the defendant’s arrest and stated that he found him to be a person of integrity and a person with a very bright future.

35.  A character reference was supplied by a French priest who acted as the defendant’s godfather.  The letter spoke highly of the defendant and his achievements, and a letter of support from Father Mellor was also produced.

36.  Counsel said that the defendant has been assisting in teaching French at a school set up by Father Mellor for children of Hong Kong citizens born on the Mainland.  Father Mellor states that the defendant has been generous with his time and kind to the children.

37.  A letter was also produced from the defendant expressing his deep remorse for what he had done and for the hurt and anxiety which he had caused his family.  Counsel said that the defendant has now put Miss X firmly behind him and kindles the hope of getting back together with his wife and children.

38.  As counsel quite correctly says, there is no tariff for any of the offences to which the defendant has pleaded guilty.  For persons found in possession of a stun gun imprisonment is the norm.  In this case there was no triad or gangland background to the offences. 

39.  I noted that the defendant claimed that the stun gun and knuckleduster were for self-defence because of incidents on the Mainland.  They were, however, recovered from a black rucksack which the defendant had taken with him to the home of Miss X.  He had checked into the Panda Hotel the night before the offences and at his hotel room there was a suitcase in which the police found an air gun and magazine.  One of the knuckledusters was produced by the defendant whilst he was in the taxi with Miss X, albeit he claimed it was produced not to frighten her but to demonstrate his intention to harm himself.  Miss X was, however, very frightened when the defendant produced the knuckleduster.

40.  I accept what has been placed before the court in mitigation, that at the time of the offences the defendant was in a highly agitated state and seemed obsessed with re-establishing his relationship with Miss X.  I read and listened to the recording of his conversation with Miss X on 2 September 2011, Exhibit D4.  In a long rambling exchange he said on a number of occasions that he would commit suicide if she did not return to him. There was also reference to an incident in Suzhou which she claimed involved violence. 

41.  I was sure that Miss X was extremely frightened about what occurred.  She was confronted by the defendant standing at her front door.  He shoved her back into the flat causing her to fall and she sustained minor injuries from the fall.  When at her home the defendant threatened Miss X and told her to get back together with him and to go to the Panda Hotel with him.  Miss X said she felt very frightened. 

42.  At that time I took the view that the defendant was not acting rationally and was in possession of the stun gun and a knuckleduster.  He also produced this knuckleduster in the taxi.  I take into account what has been said in mitigation, that this was to demonstrate an intention to harm himself.

43.  I took into account the contents of the psychiatric report which was prepared.  This repeated much of what was said by counsel on behalf of the defendant in mitigation.  The report said that the defendant is suffering from no psychotic feature, was calm and co-operative when interviewed. 

44.  In arriving at appropriate sentences, I took into account not only that the defendant pleaded guilty but also that he spared Miss X the embarrassment of having to give evidence of a very personal nature about her affair with the defendant, and I also took into account the question of totality.  I took into account that the defendant has spent some time in custody and that has been a salutary lesson for him.

45.  Taking into account all the circumstances, in respect of Charge 1 I take a starting point of 3 months’ imprisonment and reduce that to 2 months to reflect the defendant’s guilty plea.

46.  For the possession of the stun gun, I noted that it was capable of generating peak-to-peak pulsating voltage of 358.3 kilovolts when loaded with human body-like resistance, it was capable of generating 10,714 high voltage pulses continuously in 3 seconds duration.  I take a starting point of 15 months’ imprisonment for that offence and reduce that sentence by one-third to reflect the guilty plea.

47.  In respect of Charge 5, possession of the knuckleduster, I take a starting point of 9 months’ imprisonment and reduce that to 6 months to reflect his guilty plea. 

48.  I order that all the sentences shall run concurrently and the defendant will therefore go to prison for a period of 10 months.