HKSAR v. LAM FU KIN

DCCC 981/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 981 OF 2015

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Reasons for Sentence

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1.  The defendant has pleaded guilty to four offences on the last occasion and those are two offences of criminal damage and two offences of possession of arms and ammunition without a licence. The criminal damage offences date back, the first one being on 14 April 2013. The defendant has agreed the facts of all these offences.

2.  The two criminal damage charges arise out of incidents that occurred firstly on 14 April 2013 and secondly on 28 August 2014.  As a result of the offence on 28 August 2014, the latter two offences of possession of arms and ammunition were detected.

3.  The facts of the 1st offence was the offence on 14 April 2013 show that a domestic helper was working in a flat in Tai Kok Tsui.  She heard a noise from the balcony and found a dent mark about half a centimetre and a further scratch mark half a centimetre on the metal railing of the balcony and seven metal pellets were found on the balcony.  Now we now know that the damage to that balcony was caused by the defendant test‑firing an air rifle from his own home.

4.  The second incident of criminal damage occurred sometime around 28 August 2014.  On that occasion sounds of firing were heard and holes in a fence were found in a roadwork site in Tai Kok Tsui.  These sounds of firing repeated every afternoon.  Further sounds of firing were heard on 1 September 2014 and a search found metal pellets around the floor of a fence on this construction site.  Various holes about a centimetre in diameter were found on the signboards on the fence.  We now know that this was the result of pellets fired from an air rifle by the defendant from his home.

5.  The arrest of the defendant occurred as a result of investigation by the Police.  They identified the defendant's address as a possible shooting source and as a result the Police conducted a search of the defendant's residence in Tai Kok Tsui.  When they conducted the search a number of items were found; a total of 8 airguns, 2 airguns without barrels; airgun components such as air tank and air pump; items for the construction and adaptation of air rifles such as hammers and metal rods.  Also metal pellets were found, sighting scopes and velocimeters. 

6.  The defendant was arrested and cautioned.  He admitted straightaway he used an airgun to shoot towards two construction sites from his bedroom, also to a swimming pool from a toilet in the flat.  He also told the Police that some of the barrels that he had used were placed in an office in an industrial building in Fo Tan and as a result of that Police went to the industrial building and searched there. 

7.  There were a number of video-recorded interviews where the defendant gave details of how the airgun components found could be assembled for a functioning unit and how and why he had modified the rifles.

8.  In relation to the two incidents of criminal damage, he said he had used an air gun to shoot towards a unit in 2013 as it was close by.  He had been testing an air gun at the time and had used 7 to 8 lead bullets targeting the metal fencing on the balcony.  He did not know the metal fencing would be damaged.  He said he had waited to make sure no one was on the balcony before he fired. 

9.  As far as the second charge is concerned, the holes found on the signboard and the fencing was slightly damaged by the defendant shooting from his bedroom in August and September 2014.  He said the metal pellets found at the site would have been discharged by him.  He had aimed at the fencing at the material time with a telescope. 

10.  As far as the forensic examination and the assembly of the air guns and barrels is concerned, it was found that the following could be assembled from the items found both in the defendant's home and also in the industrial unit:-

A sprint‑powered air gun with a muzzle energy of 16.93 joules;

A pre-charged pneumatic-powered air gun with a muzzle energy of 39.97 joules;

A pre-charged pneumatic-powered air gun with the muzzle energy of 46.14 joules;

A spring-powered air gun with a muzzle energy of 22.98 joules; and

A spring-powered air gun with a muzzle energy of 48.45 joules.

11.  Those constitute the essential facts of the case which the defendant has admitted.

12.  As far as the defendant's personal circumstances are concerned, he is a young man of 28 years old.  He is of clear record in Hong Kong.  His background has some unusual features and as a result of that both background reports, psychiatric report and a psychological report were obtained on the defendant. 

13.  The contents of the Probation Service report are described by counsel as being somewhat unremarkable in that he is a person of clear record, lives with his family and works for his father.  He was described in a background report as having "introverted personality", that is a matter that the mitigation has been much concerned with and we will examine that in a bit more detail in a minute.  He was not motivated in studies, his academic performance was not particularly satisfactory and he enjoyed playing with air guns and modifying them.  He says he has committed the offences out of curiosity and playfulness. 

14.  The psychiatric report which was obtained by the defendant has not identified any psychiatric problem or personality disorders. I obtained a psychological report because there were certain references made to an obsessive interest in firearms, particularly air rifles, and also the video interview records of the defendant displayed a considerable knowledge and what appeared to be an obsessive interest in such firearms.  The psychological report is of relevance to this case and I will read from the Conclusions of that report:-

"The personality of the defendant is described as immature, rigid, passive, introverted and self‑centred. The defendant is described as showing autism-like features. He has inadequate social skills and weak perspective-taking ability. The defendant displays excessive", what is described as "perseverative interest in different stages of life and he was obsessed with guns between 2011 and 2014. He modified his guns and tested them by shooting objects from his home and the satisfaction he gained from modifying the guns and hitting the objects successfully perpetrated his offending behaviour".

Mr Lam was described as "self‑absorbed in his interest, shows poor consequential thinking". He says he undermined but possibly lessened the possible harm of his behaviours and lacked insight into his problems".

15.  The clinical psychologist says that in view of the defendant's age, criminal history, psychological profile and the nature of the present offences, his risk of re-offending was assessed to be moderate and says that psychological treatment targeting his social skills and consequential thinking is recommended.

16.  The defence in mitigation submitted that the defendant has been an obsessive hobbyist who posed minimal general risk to the public and they say as far as mitigation is concerned this court should consider his plea of guilty.  The remorse that he has shown, and there is evidence of his remorse in his remarks to the Probation officer, to the psychologist and to the psychiatrist he has spoken to and also the remarks of his family in the letters they have written where they speak of his remorse as well.  He has cooperated extensively with the Police from the beginning, he has told the Police the truth about his activities and in considerable detail, as I understand, and finally reference is made to his personality difficulties.  It would appear the defendant does not have a recognisable personality disorder but he has personality difficulties which would mean that some form of treatment would be of assistance to him.  He has what the psychologist described as "autism-like features" which is an inability to empathise, inability to perhaps foresee the outcomes of some of the decisions he makes.  Now those are the prime mitigating factors that have been put before me.

17.  As far as the sentencing considerations are concerned, there is no general guideline for the possession of this type of firearm, namely an air gun or air rifle.  There are a number of cases where the question of how to sentence firearms offences have been considered and the case of HKSAR v Chan Chi Fun is of relevance, that is Cr App 138/2005.  It describes the offence of possession of firearms and ammunition without a licence as an offence that attracts severe and deterrent sentence for the reason that firearms and ammunition pose a potential great danger to society and in determining the appropriate sentence the mitigating or aggravating factors include:-

- the type of firearm and ammunition involved;

- whether the defendant physically carried the firearm and ammunition;

- whether the firearm was loaded;

- whether the firearm had been used;

- whether the defendant intended to use the firearm for illegal purposes;

- whether the firearm and ammunition was properly stored or easily accessible by offenders, and

- whether the defendant had a clear record.

The level of sentence should depend on the court's view of the potential risk posed by the firearm and ammunition in question taking into account the circumstances of the case and the defendant's background.

18.  It is evident, of course, that firearms can be divided into different categories and here we are dealing with the category of a firearm that is an air-pressure firearm and they have been dealt with on a slightly different basis than what are called "regular firearms".  In the case of Leung Shiu Lun which is at Cr App 609/1996, that case concerned possession of firearms, which are air guns, without a licence.  The starting point in that case of 15 months' imprisonment was adopted by the Court of Appeal.

19.  In more recent cases, certainly in this court, we refer to the case of HKSAR v Sin Ka Leung which also referred to another Hong Kong case, HKSAR Chan Chi Wan where non-custodial sentences were imposed for offences involving possession of firearms where they were air rifles. 

20.  I think it is right to say that each case must be determined upon its own particular facts.  The defendant is a person of clear record.  He was at the time these offences are concerned an obsessive hobbyist with autistic features.  When one looks at the factors set out in Chan Chi Fun, these are the considerations the court must take into account:-

21.  The type of firearm and ammunition here was an air rifle with the ammunition being pellets.  However, these were modified air rifles and the modifications were such as to make them powerful weapons capable of throwing a pellet a considerable distance and causing damage. 

22.  Did the defendant actually carry the firearm? Well naturally he must have done because he used them.  Was it loaded?  Well it must have been.  Had the firearm been used?  Well, again we know the firearms were used.  Did the defendant use the firearm for illegal purpose?  Well obviously it must be an illegal purpose to criminally damage people's balconies and building sites. 

23.  Were the firearms and ammunition properly stored, were they easily accessible by offenders?  Well of course when the firearms were used from his bedroom they could not have been properly stored but generally the breaking down and separate storage of the gun barrels and other equipment between his bedroom and the industrial unit in Fo Tan meant that only the defendant would be able to access these items. 

24.  Did the defendant have a clear record?  Of course that is the case here.  And the sentence, Chan Chi Fun says, must depend on the court's view of the potential risk posed by the firearm and ammunition in question. 

25.  The way in which these offences became discovered shows that there was considerable risk here to other people.  The defendant fired pellets towards someone's balcony, he fired them towards someone, a work area in a public place and the defendant in his records of interview says he took pains to ensure that there was no general risk.  But of course that presupposes a high level of skill in his ability to fire these firearms.  Clearly firing a weapon in a public place is dangerous and that is an important factor that I must consider in sentencing.

26.  These were high-velocity altered air rifles. They were altered to increase their capacity to throw a missile and to do harm.  Though harm was not intended, that potential was evident.  They were shot at a person's balcony and also at a public site on a road nearby.  In those circumstances, I do not consider that a non-custodial sentence is an option in this case.  The sentence of the court must reflect the risk involved in what the defendant did.

27.  I do take into account the compelling personal factors put forward, nevertheless, I consider that in each of these charges a sentence of imprisonment must be imposed.  Taking into account all the factors that I have made reference to, what I shall do is take a starting point of 18 months' imprisonment on each charge.  That will be reduced to 12 months' imprisonment for the defendant's plea of guilty.  Having regard for the overall totality those sentences will be served concurrently.  So the sentence will be one of 12 months' imprisonment.

28.  There will also be a Compensation Order in respect of the damage done.