CRIMINAL CASE NO. 359 OF 2010
COURT: Wong Kwok-kin, you can stay seated. You have pleaded guilty at the first available opportunity, that is before the Magistrates’ Court, whereby you have been committed here for sentence on a charge of possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap.238.
In a restaurant of the Lai Kok Shopping Centre in Sham Shui Po, you were found in possession of a bag which contained a pistol with four rounds of loaded ammunition. There were another three rounds of ammunition which could not have been fired by that pistol but could have been used in another firearm.
The pistol concerned had not been used in any recorded crime in Hong Kong.
You were arrested and explained that you had been asked to keep the pistol for a few days by someone called Ah Ming whom you had met in a pub. You were unable to give any further details about this person and you did not know how to contact him.
I am somewhat sceptical about the full details of how you came by the pistol, but I am prepared to accept for the purpose of sentencing that while you may have stored the gun for a few days, you yourself had no intention of using it.
Your criminal record, whilst not a clear record, is hardly indicative of someone even on the fringes of crime, let alone involved in serious crime, and it is not clear to me from that record or from any other information placed before me that you are associated with triad activities.
You seem to be someone who has had a gambling habit since six out of your nine appearances before the courts are connected with illegal gambling, for which you have been fined. All of your nine appearances before the courts have been dealt with either by fines or a bind-over and a disqualification for drink driving.
There is nothing to suggest a more sinister purpose for your possession of the gun than that you were, as you told the police, storing it for someone.
However, possession of any loaded firearm is an extremely serious offence and the courts have for many years adopted a starting point for section 13 offences of 12 years’ imprisonment.
Such a starting point, as the Court of Appeal made clear in HKSAR v Chan Hoi Ngam [2000] 1 HKC 618 at 626 will “normally be appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available for use.”
Notwithstanding the curious presence of three rounds of ammunition found in conjunction with this loaded pistol, which appear to be for use in another firearm and which might have potentially aggravated that starting point, I see no reason to depart from a starting point in this case of 12 years’ imprisonment.
Your counsel has made a realistic plea in mitigation on your behalf. You have, as he has pointed out, pleaded guilty at the first available opportunity before a magistrate. You appear always to have accepted your fate notwithstanding the seriousness of your position, and I notice that you never made, for example, any application for bail throughout the Magistrates’ Court hearings, including your first appearance on 11 June this year when the other four defendants applied for and were granted bail.
Accordingly, this case has not needed to be set down for trial in the High Court and it is not a situation where you have indicated your plea at a pre-trial review or pleaded guilty on the first day of that trial.
Bearing that particularly in mind, your criminal record of what might be called petty offences which tends to support your limited role as someone never before involved in serious crime who was asked to store this weapon and ammunition for a fee without any intention on your part or suggestion of usage yourself, I am prepared to be slightly more generous, although my limits for manoeuvre are constrained by sentencing guidelines and the need for consistency in sentencing for crimes such as this. However, I believe I can properly trim the sentence for the reasons I have given, where someone has never contested guilt and pleaded guilty at the first available opportunity; that is to say in the Magistrates’ Court.
The sentence that I pass upon you is one of 7 years and 9 months’ imprisonment.