HKSAR v. YU CHUN LUNG

DCCC 926/2019

[2020] HKDC 744

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 926 OF 2019

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

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

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

REASONS FOR SENTENCE

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

1.  The defendant, a 48-year-old man, pleaded guilty before me to one count of possession of ammunition without a licence contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap.238.

2.  The particulars of the offence are as follows:

i. 6 fired cartridge cases in 9 x 19mm calibre;

ii. One empty cylindrical-shaped grenade body (40mm in diameter) with no explosive chemical residues;

iii. One cylindrical-shaped grenade body (40mm in diameter) with no explosive chemical residues;

iv. One cylindrical-shaped grenade body (40mm in diameter) with a non-explosive filling;

v. One primed cartridge case in 9 x 19mm calibre;

vi. 3 live cartridges in 9 x 19mm calibre;

vii. Two live blank cartridges in 9 x 19mm calibre;

viii. Two live cartridges in 5.8 x 42mm calibre;

ix. Two fired cartridge cases in 5.8 x 42mm calibre;

x. One discharged rifle bullet in .30” calibre;

xi. One bullet in 9mm calibre;

xii. One fired cartridge case in 12.7 x 108mm calibre; and

xiii. One box of industrial cartridges containing 96 live rounds of blank ammunition in .27” short calibre.

3.  It is worth mentioning here that except for the last item (i.e. xiii - one box of industrial cartridges containing 96 live rounds of blank ammunition in .27” short calibre) as particularised in the charge which was a tool consumable used by the defendant in his work in the construction site, the rest of the ammunitions were bullets (live and used) and used grenade bodies which had been picked up by the defendant over the years in the vicinity of the firing range of the People’s Liberation Army near where he lived.

4.  The defendant posted a photograph of 6 cartridges on his facebook, which perhaps alerted the police who, on 28 June 2017, paid him a visit at his home in Shek Wu San Tsuen, Sheung Shui, armed with a search warrant. The officers found those ammunitions in a green military case.

5.  He told the officers that he picked up those ammunitions at a firing range at various times over the years in Sheung Shui as a keepsake only. As far as the box of industrial cartridges was concerned, he obtained it from a foreman to be used by him in his construction work.

6.  The ammunitions in question were examined by a firearms expert of the police, SP Ng, together with a bomb disposal officer, CIP Lai. They divided the ammunitions into 3 categories for examination – the box of industrial cartridges, the grenade bodies and the rest of the ammunitions.

7.  The said industrial cartridges were confirmed to be gas producing cartridges designed to be used in a tool and can propel objects into concrete.

8.  The grenade bodies were either found with no explosive chemical residues or with a non-explosive filing.

9.  While for the rest of the ammunitions, the results of their examination were set out in the following table:    

Items	Ref. in Charge	Ammunition	Firearms suitable for discharge	Fired/ Not used	Damage likely to cause
1	i	6 fired cartridges cases in 9 x 19mm calibre	Like calibre firearms such as GLOCK 17 pistol	Fired	Just cartridge cases
3	v	1 primed cartridge case in 9 x 19mm calibre	Like calibre firearms such as GLOCK 17 pistol	Not used	No projectile, for training use but require protective gear when using, can cause fatal injuries
4	vi	3 live cartridges in 9 x 19mm calibre	Like calibre firearms such as GLOCK 17 pistol	Not used	Projectile filled with marker for training use but require protective gear, can cause fatal injuries
5	vii	2 live blank cartridges in 9 x 19mm calibre	Like calibre firearms such as Heckler & Koch MP5 sub-machine gun	Not used	For loud noise effect, no projectile
6	viii	2 live cartridges in 5.8 x 42mm calibre	Like calibre firearms such as NORINCO Type 95 assault rifle	Not used	One with plastic bullet, less energy than metal bullet. One with metal bullet, can penetrate body armor
7	ix	2 fired cartridges cases in 5.8 x 42mm calibre	Like calibre firearms such as NORINCO Type 95 assault rifle	Fired	Not likely to recycle
8	x	1 discharged rifle bullet in 30” calibre	Like calibre firearms such as Heckler & Koch G3 automatic rifle	Fired	Not likely to recycle
9	xi	1 bullet in 9mm calibre	Like calibre firearms such as GLOCK 17 pistol	Not used	GLOCK 17, pistol
10	xii	1 fired cartridge case in 12.7 x 108mm calibre	Like calibre firearms such as Chinese Type 77 machine gun	Fired	Not likely to recycle

10.  Regarding item 9 in the table where it says “GLOCK 17” pistol in the column “Damage likely to cause”, it means that the bullet could be fired from a “GLOCK 17” pistol and the damage is equivalent to a shot from such a pistol.

11.  The defendant, still single, has a girlfriend who is in court today to show concern and support for the defendant. Though he has 9 prior convictions none of which is similar to the present offence.

12.  His records show 4 convictions involving violence (common assault, AOABH, resisting arrest and criminal damage), two blackmail, one theft, one possession of Part One poison and one claiming MOTS.

13.  In mitigation, the court heard that the defendant worked as a construction site worker, and those industrial cartridges were actually his work tools, he would use them on nail guns.

14.  As for the ammunitions he picked up from outside, counsel for the defendant, Mr Chong submitted that the defendant had no intention to use them for any illegal purposes – for the live ones he did not have the firearms to fire them, and for the used ones they could no longer be used to injure others- the potential risk thus posed by the ammunitions would be very small.

15.  Mr Chong went on to say that the defendant had those ammunitions for collection purpose only, and as he lived alone, they were not easily accessible by others, and given the fact that he had no previous similar conviction, the court could deal with him in a lenient way. Mr Chong cited in support the case of Yu Chi Lap CACC 656/1982.

16.  In Yu’s case, the appellant, a former police officer, was found in possession of 3 live rounds of revolver ammunition without a licence, pleaded guilty to the same charge as in the present case admitting to obtaining these rounds from a range course when he was a member of the police force CID, and was given a 18-month jail term.    

17.  Reducing the term to one of 6 months on appeal, the Appellate Court had this to say:

“……What made the case more serious than normal was the fact that you obtained these rounds when you were still a serving police officer. We bear in mind that you did not have any arms, no gun and no suspicious or sinister motive was suggested for the retention of this ammunition. You are 29 years old. You have a clear record and you pleaded guilty to this offence.”

18.  In more recent authorities which are mainly dealing with possession of arms with ammunition rather than ammunition alone as in the present case, the overwhelming concern is still on the question of the risk of danger it could pose to the public.

19.  Turning now to the present case, the defendant is not a person of clean record, he has records of violent crimes, in particular he once claimed himself to be a triad member when he blackmailed and injured somebody back in 2012 for which he was sent to prison. If he was not of dubious character, his friends or associates might be. When a person like the defendant possessed ammunition, there was potential such ammunition might be put to unlawful use.

20.  It could be argued in his favour, however, that for those ammunition he picked up from outside, it may seem large supply but in fact only a small number of them capable of causing injuries (i.e. those live rounds like items 4, 6 and 9 see paragraph 9 above – 6 rounds in total); coupling with the fact that he did not have any arms, the risk of danger to the public might lie towards the lower end of the scale. Given the case as it was, I am prepared to conclude that the risk was on the low side.

21.  This case happened in June 2017; more than 3 years went by when it came before me for sentencing. On the question of delay as a ground for reduction of sentence, Mr Chong indicated to the court that they would not rely on such ground; they accepted it to be reasonable in the circumstances because time was needed to examine the ammunition in question and the delay, if any, was not undue delay.  

22.  It is worth mentioning that such offence carries a maximum term of 14 years’ imprisonment and a fine up to $100,000.  

23.  Based on the facts of the case and taking all the mitigation into account, I take 12 months as the starting point and reduce it to 8 months to reflect his timely plea. There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 8 months’ imprisonment.