COURT: On 29 June 2021, you pleaded guilty to an amended charge before a magistrate sitting at Eastern Magistracy. The charge was possession of arms and ammunition without a licence, contrary to Section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. At the same time you admitted the Summary of Facts and you were committed here to the Court of First Instance for sentence.
You admitted that on 9 June 2020, at the Ground Floor, of Block B, Choza Rico, Shek Po Tsuen, Hung Shui Kiu, Yuen Long, New Territories, in Hong Kong, you had in your possession a quantity of arms and ammunition, namely, a pistol, 390 rounds of ammunition in 9 x 19 millimetre calibre and four magazines without a licence.
From the Summary of Facts you admitted that on 9 June 2020, at about 0904 hours, the police escorted you to your residence which was the address as stated in the charge. Inside your bedroom found inside a locked safe were the firearms and ammunition, as stated in the charge. You said that the safe belonged to you but the combination lock was broken. The key of the locked safe was kept inside a drawer near the computer desk in your bedroom. In your presence the safe was opened with the key taken from the drawer and, as I mentioned, the items as stated in the charge were found inside the safe.
Inside the drawer where the key was seized, there were items as listed at paragraph 4 of the Summary of Facts, which I will not read through. There are no disputes that all these items were connected with or in relation to arms and ammunition. On the computer desk was also one certificate issued by Double Tap, a shooting club, issued to you, and a book of build your own semi-auto hand guns was also found. At the last court hearing I asked the prosecution to provide me with further information and photographs of the items seized in paragraph 4 of the Summary of Facts.
I have a set of photographs which show the items seized and also a very short explanation/observation by a firearms expert. Under paragraph 4, item 2, it is stated there are two red boxes, each containing a pistol stand. From the photos as exhibited by the prosecution and which has been admitted by the defence is a box in photo 2 of a pistol frame kit. Both boxes contain a pistol frame, as stated by the firearm examiner, and his comments are that this is a pistol frame, the basic unit of a firearm which houses the firing and breach mechanism and to which the barrel and grips are attached. He explains what the kit consists of.
In short, there is no dispute by Mr Chau that this pistol frame could be, if there were parts available, be used to assemble a real genuine firearm or pistol. I accept from the facts as stated that there were no further parts found in your house which could have been assembled to make these two frames real firearms. I am informed by Mr Ngai, of the prosecution, however, that at the time of commission of this offence there was no legislation in respect of these parts of a gun.
However, after 2021, under Cap 238D, I am informed that if you had been found in possession of these frames this would constitute an offence. The amendment to the ordinance as I understand after 2021 is such that possession of parts of a firearm is an offence. I note, however, clearly, that this was not an offence at the time you were arrested.
As for the pistol that was found in your possession, it was attached with a target pointer and designed to discharge the ammunition of 9 x 19 calibre and that, principally, is the ammunition that was found in possession of you, the bullets. The bullets, or the ammunition, were contained in nine boxes and you had a total of 390 bullets and the bullets were suitable to be discharged in the pistol found in your possession. The pistol was functional and capable of discharging the bullets. The four magazines were designed to store those bullets and the magazines were suitable to be used in the pistol.
Defendant, you are now 39 years of age. You are single and live with your parents. You have a clear record. Prior to your arrest you worked as a Vice-President, a Corporate Specialist MPF Manager at HSBC. You earned $36,000 per month and I am told were the sole breadwinner for your family. A total of 14 mitigating letters from various people have spoken of your good character. You are described as a filial son, helpful, well respected by your family, friends, colleagues and clients. Your love and care for your family and others are well documented in the mitigation letters.
You have pleaded guilty to an offence of possession of firearms and ammunition without a licence. A very comprehensive judgment on the possession of firearms and ammunition was given by the Court of Appeal in the case of Tsiang On Yan [2019] 5 HKLRD 100. That was, as I can see, the most recent case handed down by the Court of Appeal on this offence. Zervos JA gave judgment for the court in that case. The Court of Appeal considered many of the authorities prior to that case for possession under section 13 and the appropriate starting point for this offence and the facts which may warrant a departure from the starting point.
At paragraphs 43, 44, 45, 48, 51 and 52 the court referred to a starting point of 12 years’ imprisonment as an appropriate starting point for this offence. At para 45, the court said:
“It seems clear that a person in possession of a firearm with loaded ammunition or a firearm with ammunition capable of immediate use, a starting point of 12 years’ imprisonment would be appropriate”.
The court then went on to consider another case, which is Chan Chi Fun. Chan Chi Fun stated that:
“In determining the appropriate sentence, the mitigating and aggravating factors included...”
And I go onto say:
“(1) the types of firearm and ammunition involved;
(2) whether the defendant physically carries the firearm and ammunition;
(3) whether the firearm is loaded;
(4) whether the firearm has been used;
(5) whether the defendant intends to use the firearm for illegal purposes;
(6) whether the firearm and ammunition are properly stored or whether they are accessible by offenders;
(7) whether the defendant has a clear record”.
Still referring to Chan the court, at paragraph 47, said:
“The court went on to emphasise that the level of sentence was dependent on the sentencing court’s view of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case, the defendant’s background and the possibility of the arms and ammunition in question”.
At paragraph 48, Zervos JA went on to say:
“In light of the stringent gun control regime in Hong Kong, it is hard to imagine why a person would have an unlicensed firearm and ammunition in his possession, other than for them to be used for a criminal purpose. A firearm with ammunition is a lethal weapon and a serious danger to the public. It is for this reason, depending on the nature and quantity of the firearms and ammunition involved and the circumstances in which the offence was committed, that a starting point of 12 years’ imprisonment would be appropriate”.
Zervos JA then went on to observe the difference of the provisions in the ordinance, at paragraphs 49, 50 and 35 of Tsiang.
“The offence provisions are structured so that for simple possession of arms or ammunition without a licence...”
That is, section 13 of which this defendant is charged with.
“...a maximum penalty of 14 years’ imprisonment is imposed, while for possession of the arms or ammunition that are used or intended to be used to endanger life or to commit a crime, a maximum penalty of life imprisonment is imposed”.
And he referred to sections 16, 17 and 18 of the ordinance. The court went on to observe:
“For the more serious offences, where a person has in his possession arms or ammunition that is used or intended to be used to endanger life or for some other criminal purpose, the penalty is the maximum known to law of life imprisonment”.
And I refer to paragraph 34 of Tsiang. So those in possession of such a weapon to endanger life or commit a crime may be covered by other offences, which a maximum penalty of life imprisonment is imposed. At paragraph 52, Zervos JA went on to say:
“A firearm and ammunition with the potential to kill or maim a person is a lethal weapon which ranks high in the level of prohibited items under this offence. A person convicted of possession of such a firearm and ammunition can normally expect a sentence after trial of 12 years’ imprisonment unless there are special features that would warrant a reduction”.
It is, therefore, in a charge like this that a defendant is expected to receive a sentence of 12 years’ imprisonment of which senior counsel for the defendant, Mr Phil Chau, has accepted. Mr Chau, counsel for the defendant, however emphasised there are special features that warrant a reduction from the starting point. The first of those is that the defendant is a gun enthusiast.
It is suggested by Mr Chau that the defendant’s mother mentioned in her letter the defendant’s hobby of collecting various items, including air pistols, ever since he was young. The defendant became interested in air pistols back in primary school when he was about seven or eight years old. He had also been collecting air pistol magazines ever since then. Mr Chau submitted over the years the defendant has become obsessive about his hobby and his obsession may have hindered his ability to act sensibly and rationally in relation to the present offence. Mr Chau says as the defendant was a gun enthusiast he posed minimal risk to the public.
I can see no evidence suggesting of the defendant’s interest in guns or being an enthusiast from an early age. There are no air pistol magazines found by the police and no air pistols found or seized. Everything that was seized in relation to guns was stated in the Summary of Facts, at paragraphs 3, 4 and 5. The receipts were dated April or May 2020. If what the mother suggests that the defendant was a gun enthusiast since the age of seven, his interest, as I can see, if any, did not manifest itself until sometime late in May 2020.
As I mentioned, there was no air pistol magazines found. There were no air pistols. All the matters related in paragraph 4 found were in relation to real firearms. If it was that the defendant’s interest dated back to when he was a young boy, it certainly remained dormant until recent or close to the time of the offence, June 2020. That means it remained dormant for about 31 years. I am of the view that the defendant’s interest in real firearms and ammunition only came about sometime in or about 2020. I reject the fact the defendant was a gun enthusiast from an early age.
The defendant had a manual to assemble a genuine gun, “Build Your Own Semi-Automatic Manual” and also had a pamphlet or flyer from Sportsman’s Den on where to buy guns and ammunition which were available for purchase. Mr Chau, in his submissions, said the manual basically guides the reader through the various processes of assembling one’s own handgun. This was the method adopted by the defendant. Mr Chau said it must be worth remembering that the defendant bought the parts for the gun separately. A gun was then assembled piecemeal by the defendant.
Mr Chau said the two frame kits were to be used as spare parts. I wholly reject that submission that they were to be spare parts. It is clear that these frame kits were potentially to be used to be assembled as another or two other real firearms if the defendant had the relevant parts. Why would the defendant need spare parts if this gun was not intended to be used?
Mr Chau said the defendant purchased various components and tools just to learn how to build a pistol. He said the defendant committed the offences due to his obsession with collecting firearms and ammunition. He did not fully realise the serious consequences of his hobby. I also reject the mitigation that the defendant did not fully realise the serious consequences of his hobby.
The defendant is an educated man. He is an associate degree-holder from SPACE at Hong Kong U and is a Vice-President and Corporate Specialist MPF Manager at HSBC. It is beyond doubt that the defendant knew that it was illegal to possess a firearm and ammunition. The hiding of the pistol and the extremely large quantity of bullets in the safe reveal that the defendant knew of the illegality and seriousness of it. I further take the view the defendant deliberately imported the parts of a gun to assemble himself to avoid detection by the authorities. This was a well-planned scheme for him to possess a firearm. I consider the importation of the parts an aggravating factor.
It was submitted that a further feature warranting a discount is that there is no evidence that the defendant intended to use the firearm for any illegal purpose and it was not loaded and had never been fired. Mr Chau submitted the ammunition was not opened until the police found it and opened it from its package to inspect it. I have already dealt with this ground above and I do not consider this a special feature warranting a reduction.
Another feature that Mr Chau says warrants a reduction is that the pistol, magazine and bullets were securely locked away in a safe in the defendant’s bedroom and the defendant’s clear record. In the case of Chan in paragraph 18, the court stated that:
“The level of sentence was dependent on the sentencing court’s view of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case, the defendant’s background and the possibility of the arms and ammunition in question being used”.
I have noted earlier the pistol and the 390 bullets were together and clearly ready to be used. I accept there was no real blatant risk that the pistol and the bullets would be accessible to others as it was kept in a safe in the defendant’s bedroom. However, the combination lock of the safe was broken and it could be opened with a key which was kept in a drawer in the defendant’s bedroom that was not locked.
There was a possibility that they could be accessible to others, for example, if his home were to be burgled, but I do not consider it very high. I still do not consider this to be a mitigating factor as the hiding of the pistol with a significant amount of bullets together reveals that the defendant armed himself with a firearm in working condition and with ammunition available for its use. As stated by Zervos JA:
“It is hard to imagine why a person would have an unlicensed firearm and ammunition in his possession, other than for them to be used for a criminal purpose”.
Given the circumstances of how the defendant imported the parts of the gun and assembled it himself, the significant amount of bullets and the firearm and ammunition being kept was but one step away from its use. There being no special features which warrant a reduction, I adopt a starting point of 12 years’ imprisonment.
Defendant, you have pleaded guilty at the earliest opportunity and I give you the full one-third discount and therefore I reduce that term to which you shall serve a period of 8 years’ imprisonment.