HKSAR v. LUI FUI

CACC 237 /2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

criminal APPEAL NO. 237 OF 2007

(ON APPEAL FROM DCCC 435 of 2007)

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Reasons for Judgment

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Hon Yeung JA (giving the reasons for judgment of the Court):

Introduction

1.  On 28 February 2008, we dismissed the application for leave to appeal against sentence. We indicated that we would hand down our reasons in writing and this we now do.

2.  The applicant, Lui Fui, pleaded guilty before Deputy Judge Chainrai in the District Court to a charge of possession of ammunition without a licence and was sentenced to 33 months’ imprisonment.

3.  The applicant sought leave to appeal against sentence on the basis that the 33 months’ imprisonment was manifestly excessive.

The Facts

4.  The applicant was arrested on 28 October 2006 whilst playing video games with Wong Man-fai (“Wong”) at the Ginza Amusement Games Centre (“Ginza”) in Nathan Road.

5.  From the applicant’s shoulder bag, the police found a black pistol- like air gun. Under caution, the applicant admitted that the gun belonged to him and had nothing to do with Wong. Later the applicant was taken to his residence at Hing Wah Building, Reclamation Street where the police executed a search warrant by making a forced entry.

6.  The police found a scythe, a brownish green cloth bag containing two pistols and a grenade inside a plastic box. Only the grenade was the subject matter of the charge as the airgun and the two pistols were just toy guns.

7.  The grenade contained explosive substance including potassium perchlorate, aluminium and sulphur.

8.  The applicant claimed that the grenade, the scythe and the toy guns were given to him by a group of war games players. However, he was unable to provide the name or the contact means of any of those players.

9.  The applicant also admitted that he knew the grenade contained explosive substance and therefore he had wrapped it carefully with a plastic bag and aluminium foil to reduce the risk of explosion.

10.  The prosecution expert’s view was that the grenade was a “plastic bodies hand grenade” of conventional design, Model No: JGS 90 01-94632. It was a practice or stun grenade from the Mainland, designed by the military for training purpose or as a stun grenade for law enforcement purpose. The explosive substance was flash powder, which could cause explosion in the form of a loud bang and a bright flash simulating an explosion.

11.  The heat generated by the grenade upon explosion would cause burning out to 0.5 meter and the blast would cause temporary disorientation to anyone within 2 or 3 meters in a confined space, and deafness for several minutes. The fragments produced would be plastic casing, which could cause minor injures at close range.

12.  A proprietor selling war games accessories confirmed that the sort of grenades used in war games were detonated by pressurised gas and would only discharge either plastic BB pellets or powdery substances.

The Mitigation

13.  The applicant, in a letter to the court, claimed that he thought it was a toy grenade and did not know it contained explosives. However, the applicant had admitted that he knew it contained explosive substance and therefore he had wrapped it carefully. His counsel also admitted that the applicant knew that the grenade contained explosive.

14.  The applicant’s counsel emphasized that the grenade was intended only for War Games purpose.

The Judge’s Approach

15.  The judge viewed the offence a serious one. She pointed out that the grenade was a live one and could be detonated by the removal of the safety pin and throwing it out. The judge emphasized that the applicant knew that the grenade could be explosive as he took special care to wrap it and put it in a container to avoid accidental explosion.

16.  The judge further emphasized that, when detonated, the grenade could cause burning out to 0.5 meter, temporary disorientation and deafness to persons within 2 to 3 meters in a confined space, and minor injuries at close range from the fragments.

17.  The judge took the view that the applicant, by his possession of the grenade, had created a situation of grave risk to the community, as the grenade could fall into the wrong hands and be used for illegal purposes.

18.  Pointing out the applicant’s eight previous criminal convictions, mostly drug related, the judge took a starting point of 4 ½ years’ imprisonment and reduced it by one-third on account of the guilty plea. The judge further reduced the sentence by another 3 months to 33 months to reflect that the charge was only laid until the applicant had almost served out a sentence of possession of dangerous drug.

19.  At the time of sentence on 4 July 2007, the applicant was serving a 10 months’ imprisonment for a drug offence imposed on 15 November 2006. The judge ordered the two sentences to be served consecutively as the present offence was committed whilst the applicant was on bail in respect of the drug offence.

Grounds of Appeal

20.  Mr Shahmim K Khattak, on behalf of the applicant, put forward a number of grounds to support a reduction of sentence.

21.  Mr Khattak suggested that the judge had not sufficiently considered the fact that the applicant only possessed the grenade for the purpose of war game and not for any illegal purpose when the background report and his parents supported the mitigation that the applicant was in possession of the grenade for fun and for war game only. Mr Khattak emphasized that the grenade posed no real threat to the public.

22.  Mr Khattak further suggested that the judge had speculated the degree of injuries, which the grenade could cause when detonated and had failed to take into consideration that the applicant had took measure to avoid the risk of an explosion.

23.  Mr Khattak suggested that a Community Service Order or a Probation Order should not be ruled out despite the seriousness of the offence when the applicant had no previous similar conviction. Mr Khattak referred to R v Hirai Hilrotsugu (unreported, HCCC 30/1995) when a Japanese merchant was fined $360,000 for possession of 10 revolvers, 38 pistols, 5 air guns and almost 1,500 bullets and suggested that a non-custodial sentence for the offence was not unheard of.

24.  In any event, bearing in mind the relevant factors, Mr Khattak suggested that the starting point of 4 ½ years and the ultimate sentence of 33 months’ imprisonment was manifestly excessive.

Discussion

25.  The maximum sentence for the offence of possession of arms or ammunition without a licence is 14 years’ imprisonment.

26.  Of course there can be varying degree of seriousness, depending on the facts of each case, and therefore a tariff sentence for such offence is not feasible.

27.  At the top of the scale is of course possession for illegal purposes such as robbery, injuries to persons or damages to properties, whereas possession as a hobby with no risks of the firearms or ammunitions being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale.

28.  Hirai Hirotsugu (supra) clearly belongs to the latter category when the arms and ammunition were weapons from the Second World War and were just personal collection with no possible intention/opportunity for any illegal purpose and as they were properly stored, there was also no risk of any threat to the public. The defendant in that case had a clear record.

29.  Hirai Hirotsugu is not a good example to support the suggestion that in other cases of possession of arms and ammunition, a non-custodial sentence is an appropriate sentence.

30.  Mr Khattak emphasized that the applicant had possession of the grenade only for fun and sought reliance on the contents of the background report.

31.  The judge, in her reasons for sentence, pointed out the vicious nature of the grenade in question, as it was capable of causing quite serious injuries when detonated. The judge said:

“The sort of grenades used in war games are detonated by pressured gas and would discharge either plastic BB pellets or powdery substance. The grenade in question here was a plastic body hand grenade made on the Mainland. It is a practice or stun grenade, probably designed to be used by the military for training purposes or as a stun grenade for law enforcement purposes.

The grenade contained flash powder and it is intended to be used for causing explosions as it contains low explosives with a means to ignite the explosives. When the grenade is detonated by removing the safety pin and throwing it out, it will produce a loud bang with a bright flash simulating an explosion generating heat which can cause burning for up to 0.5 metres. The blast will cause temporary disorientation to any person within 2 to 3 metres in a confined space and also deafness for several minutes. The fragments produced will be plastic casing and only capable of causing minor injuries at close range but, of course, one cannot discount that if fragments enter into the eyes or hit other sensitive parts of the body, the injuries could be more severe.”

32.  Though not expressly stated, the judge had clearly rejected the defence suggestion that the grenade was for fun and for war game only.

33.  In view of the nature of the grenade and the expert’s evidence, the judge was perfectly entitled to reject the suggestion that the grenade was for fun when it was capable of causing serious injuries and when the applicant was unable to provide the name and contact means of any of his alleged war game players.

34.  There was no evidence to suggest that the applicant had intended to use the grenade for any illegal purpose, and the judge did not sentence him on that basis.

35.  The judge pointed out that the applicant had “created a situation of grave risk to the community, as no one can be sure that the grenade might not fall into the wrong hands and be used for illegal purposes”.

36.  The judge was entitled to take the view that what the applicant did posed a real threat to the public.

37.  With respect, Mr Khattak’s suggestion of a Probation Order or a Community Service Order, in the light of the facts of the case and the background of the applicant, was far-fetched and totally unrealistic.

38.  On the facts as found by the judge, particularly the nature of the grenade, and bearing in mind also the applicant’s criminal record, we were not persuaded that the 4 ½-year starting point adopted by the judge or the ultimate sentence of 33 months’ imprisonment was manifestly excessive.

39.  The application for leave to appeal against sentence was therefore dismissed.