COURT: The defendant was convicted after a trial by a jury of two counts of possession of firearms and ammunition without a licence, and a 3rd count of trafficking in dangerous drugs.
In the particulars of the 1st charge the defendant is found to have had possession of one self-loading pistol with one magazine loaded with four bullets. It was found in his bag after he was stopped and searched just inside the building where he lived having been followed by the police into it. He had been kept under observation for some time. The police had observed him leaving the building and coming back. He had a loaded pistol out in public.
The defendant was stopped on the first landing up the first flight of stairs by police in front and behind him. He reached for something in his bag and was immediately subdued, pressed to his knees and handcuffed, but not before there was quite a violent struggle and resistance. His bag was searched, and a loaded pistol was found inside.
The police proceeded upstairs one floor to premises they believed he occupied, Room B. They proceeded with caution and guns drawn having just found a loaded pistol. When they ascertained there was no one else in Room B, nor any danger nearby, the defendant was brought upstairs, and the premises searched in front of him.
In the particulars of the 2nd charge, the defendant is found to have had possession of two self-loading pistols of which one had a magazine in it loaded with two bullets, the other had no ammunition or bullets loaded in its magazine. There were also separately included in these particulars five bullets found. All these items were found in Room B of 187 Yee Kuk Street.
In the particulars of Charge 3, the defendant is found to have unlawfully trafficked in 410.6 grammes of a crystalline solid containing 406.2 grammes of methamphetamine hydrochloride, and 2,458 grammes of mixture containing 2,050 grammes of heroin hydrochloride. The drugs were found in a locked safe inside Room B. The police also found a large quantity of small transparent resealable plastic bags and an electronic digital scale, items used to repack drugs into smaller bags for sale or delivery.
When the additional two pistols and ammunition were found in Room B, they were shown to the defendant. He remained silent when asked for the key to the locked safe. The police were unable to find a key and it had to be broken open by a locksmith hours later.
Fingerprints of the defendant were found on various items inside Room B, including a rental receipt found inside an envelope inside a drawer, as well as two prints found on the tape of one brick of heroin, heroin found inside the locked safe. The defendant’s DNA was found on the two toothbrushes found in the bathroom, as well as a mug.
The prosecution’s evidence also consisted of two independent witnesses who were a neighbour of the defendant for several years and the monthly rent collector for Room B over three years, respectively. They identified the defendant as a neighbour and as the paying occupant.
The defendant’s case was that he did not live in the premises and, therefore, was not in possession of any of the items found inside Room B. He had only moved in temporarily three days before his arrest and had never met those two independent witnesses. He did not possess any weapons and one was not found in his bag. Since he was not the occupant of Room B, he had no knowledge of the items inside the safe.
The evidence of the defendant included him being assaulted by the police several times, and so hard he fell unconscious, but not before he felt some items, which he did not describe, being pressed into his hands cuffed behind his back. He also did not witness any search of Room B.
Mitigation
The defendant is an asylum seeker from Vietnam who came to Hong Kong illegally in 2014. Until now, he had a clear record in Hong Kong. He is divorced with three children. He is a university graduate.
Not much can be said on behalf of the defendant in mitigation in light of the serious nature of these charges and facts. Mr Cheng has said all he can say today in mitigation.
Sentencing
Possession of firearms and ammunition without a licence
The offence of possession of firearms or ammunition without a licence will attract a maximum sentence of 14 years’ imprisonment. There are no guideline tariffs for this offence and the starting point of a custodial sentence will vary from case to case and depend on a number of factors as seen or set out in the facts.
I have referred myself to numerous authorities including HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, that stresses the general rule of imposing a deterrent sentence. The Court of Appeal found as a rule, this type of offence attracts a severe and deterrent sentence because firearms pose a potential great danger to society.
They identified certain mitigating or aggravating factors, including: the type of firearm and ammunition involved. Whether the defendant physically carried firearm and ammunition, and whether it was loaded; whether it had been used or the defendant intended to use it for illegal purposes; how the firearm and ammunition was stored, be it safely, securely, or easily accessible by offenders or others.
The potential risk posed by the firearms and ammunition in question could determine the level of sentence taking into account the circumstances of the case and the defendant’s background.
In Secretary for Justice v Yan Shen [2012] 3 HKLRD 652, Stock VP, as he then was, stressed in cases of unlicensed possession of firearms, I quote:
“Societal protection is a paramount consideration. It is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration.”
I have referred myself to HKSAR v Chan Lap Ming Castor, CACC 32/2022. In that case, the Court of Appeal discussed appropriate sentences for this offence. It referred to a recent review of a number of authorities and their sentencing starting points.
This included HKSAR v Tsiang On Yan [2020] 2 HKC 529, where possession of one self-loading pistol, magazine, and 13 rounds of ammunition by an offender operating a farm in the New Territories, attracted a starting point of 12 years’ imprisonment which was upheld.
Indeed, in Chan Lap Ming Castor, the Court of Appeal discussed several authorities where the starting point of 12 years’ imprisonment was upheld. Cases that were extremely grave, serious and usually involved a defendant in possession of a firearm and ammunition for potentially illegal, or even illegal purposes, which were but “A step away from its use.”
I am of the view the facts in this case reflect a very bad case of this type. There were three lethal weapons and a significant amount of ammunition.
Moreover, the defendant had one of the guns loaded in his bag out on the street in public. I do not have any direct evidence as to why and whether it was one step away from being used, but it does not take much to connect a serious drug trafficker in possession of drugs worth over $2 million to the need to carry a loaded pistol. One could imagine he may need it in this murky world of drug trafficking for self-preservation or even the opposite, to use it as an aggressor against other nefarious characters.
Therefore, I find a 12-year term of imprisonment appropriate taking into account the facts, the number of firearms and ammunition of both charges. I will take a global approach and impose a 12-year term of imprisonment for both Charges 1 and 2, and will order them to be served concurrently.
Trafficking in dangerous drugs
I have considered the approach to sentencing those that traffic in dangerous drugs. With the Court of Appeal’s guidance in the most recent authority, HKSAR v Lee Ming Ho [2020] 4 HKCA 150, I now consider the six steps as set out in HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290.
In the approach to sentencing, a number of steps have been identified which the court should take, such as: assessing the gravity of the offence and applicable guideline; identifying the defendant’s role; where within the guideline the defendant should lie; any aggravating factors; any mitigating factors; and, lastly, passing a sentence which is fair, just and balanced in all the circumstances of the offence and the defendant.
The first step is to assess the gravity of the offence and identify the applicable guideline according to the drugs seized, and here there are two types.
The sentencing guidelines in heroin is found in the authority of R v Lau Tak Ming and Others [1990] 2 HKLR 370, and the starting point for trafficking between 1,200 to 4,000 grammes will be between 23 and 26 years’ imprisonment.
Mathematically speaking, the total weight of 2,050 grammes of heroin here in this case will attract by itself a starting point of 23 years and 11 months’ imprisonment.
The sentencing guidelines in ‘Ice’ is found in the authority of HKSAR v Tam Yi Chun [2014] 3 HKLRD 691, and the starting point for trafficking between 300 and 600 grammes of ‘Ice’, methamphetamine hydrochloride, will be between 15 and 20 years’ imprisonment.
Mathematically speaking, the total weight of 406.2 grammes of ‘Ice’ here will attract a starting point by itself of 16 years and 9 months’ imprisonment.
As there are two types of drugs involved here, and they are similar in potency, the combined approach in sentencing is often preferred as well as the most fair to the defendant. I will add the amount of heroin and ‘Ice’ together which totals narcotics weighing 2,456.2 grammes. According to the guidelines for heroin, this will attract a mathematical starting point of 24 years and 4 months’ imprisonment.
If I were to cross-check that starting point against the absurdity test and the ratio test, both indicate a starting point of 24 years and 4 months’ imprisonment.
The second step of the six steps it to assess the defendant’s role and culpability based upon the evidence. The drugs were found in premises under the control of the defendant, locked up securely, I am sure, because of their high value. There is no evidence he was acting as anything other than a storekeeper or a courier. Therefore, I determine the starting point from the relevant tariffs and quantity of dangerous drugs involved.
Considering the third step of where in the guidelines the defendant should lie, I will take that starting point I referred to of 24 years and 4 months’ imprisonment.
The fourth and fifth steps require me to consider whether there are any aggravating factors or any mitigating factors. I find the status of the defendant as a Form 8 recognizance holder in Hong Kong an aggravating factor.
Committing these types of offences with this many firearms and ammunition and this much dangerous drugs is a serious abuse of the hospitality of our society or community who accommodate those that seek asylum. I will enhance the starting point by 1 year to reflect this aggravating factor.
The last step is to stand back and look at the overall sentence in order to ensure that it is fair, just and balanced in all the circumstances of not only this offence, but also the defendant.
It is a very significant term of imprisonment, 25 years and 4 months’ imprisonment, but a severe or harsh sentence is not by that reason alone unnecessarily unfair, imbalanced or unjust. I see no reason to deduct any of that sentence in consideration of this last step.
Conclusion
Accordingly, for Charge 1, the defendant is sentenced to 12 years’ imprisonment.
For Charge 2, the defendant is sentenced to 12 years’ imprisonment.
For Charge 3, the defendant is sentenced to 25 years and 4 months’ imprisonment.
Mr Cheng has urged me to consider making all three sentences concurrent. Although I have taken into account the totality principle, to make all three sentences concurrent would not reflect the fact that the defendant committed two very distinct and separate serious offences, albeit at the same time. Therefore, I intend to make 6 years of Charge 1 consecutive to Charge 3.
Accordingly, the defendant is sentenced to a total of 31 years and 4 months’ imprisonment.