HKSAR v. GAN BO

DCCC 215/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 215 OF 2014

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REASONS FOR SENTENCE

1. Gan Bo you have pleaded guilty to one charge of possession of arms without a licence, namely one stunning device,contrary to section 13 of the Firearms and Ammunition Ordinance, Chapter 238 and not guilty to one charge of possession of a simulated bomb, contrary to section 19 of the Summary Offences Ordinance, Chapter 228.

2. The prosecution ask that this charge be left on the court file not to be proceeded with without leave of the court or the Court of Appeal.  The prosecution however submit that the circumstances of the possession of the simulated bomb together with the stunning device are relevant to sentence for possession of the stunning device.

3. In summary in the early hours of the 27 December 2013 the police intercepted you outside Central Pier No. 4.  On an initial search of your rucksack the police found the stunning device together with a rechargeable battery.  You told the police this was for self-defence. 

4. On a further search of your rucksack the police found the simulated bomb made up of electric wire attached to a digital clock.  No viable improvised explosive device or explosive was however found.

5. In passing sentence I have carefully considered everything said on your behalf by Mr Kwong including your family circumstances, in particular the death of both your father and elder brother in 2011.  I take into account that you have a clear record.  This must however be viewed in the context that you had only been in Hong Kong for a few days prior to your arrest.  

6. There is no tariff for this offence the sentence very much depending on the circumstances of the individual case.  As was said in HKSAR v Fan Kwok Wai CACC 264/2005 important considerations are the power of the weapon, that is, what level of voltage it is capable of discharging, and whether there is evidence the offender or some other person may use the weapon for an unlawful purpose or to facilitate an unlawful activity. 

The power of the stunning device

7. I have carefully read the two expert reports submitted by the prosecution.  In summary Assistant Police Telecommunications Inspector Chan Che Wah measured the average peak to peak pulsating output voltage generated from the stunning device across a resistor load similar to the total body resistance of a human being at 77.995 kilo-volts (77,995 volts).   When discharged for a continuous period of three seconds the stunning device is capable of generating 6,250 high voltage pulses.

8. The findings of Dr Lam, Senior Forensic Scientist, are that when a functional stun device is used on an average healthy person that person would be startled and experience intense local pain and muscle spasm.  Applied for more than 3-5 seconds the person may fall to the ground due to muscle paralysis; remain dazed and weak or even immobilized for up to several minutes.  The electrical shocks generated by such devices are however generally considered non-lethal for healthy persons.  Abrasions or lacerations may result when the sharp metal electrodes of the device are pushed forcefully against the skin.

The use of the stunning device

9. You claim that in the summer of 2009 you were robbed at knife point when waiting for a bus and that in 2011 your elder brother was also robbed.  Tragically your brother died of the wounds inflicted during the robbery.  Fearful of being robbed again you therefore for self-defence bought the stunning device, which devices I am told can freely be purchased in electrical appliance shops in the Mainland.  As the device has a torch function you used the device for illumination because the back alley where you lived in quarters provided by your employer had insufficient lighting.

Case law

10. A review of cases can be found in HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 where the appellant, an illegal immigrant, claimed to pick up from a construction site a stun gun capable of generating some 12,000 volts into the human body, which is a much less powerful weapon than the one in your possession.  The Court of Appeal having reviewed a number of cases involving the possession of stun guns said that a starting point of 20 months imprisonment was appropriate in the absence of any evidence suggesting the stun gun was to be used for illegal purpose. 

11. Mr Kwong refers the court to the case of HKSAR v Wong Wing Wong CACC 214/2002 which was considered by the Court of Appeal in Li Hung Kwan.  The judgment is in Chinese for which there appears to be no translation.  None has been provided to me due to the late notification that I would be hearing the case.  However as mentioned in court I have read an English digest of this case in the February 2003 edition of the Criminal Appeals Bulletin.

12. In Wong Wing Wong the appellant was intercepted at the border when he was found in possession of a stun gun with the average maximum voltage of 20,000 volts.  The appellant claimed he had been robbed in the Mainland and therefore bought the stun gun for self-protection and for illumination purpose while working in a construction site.  The appellant further claimed that he unintentionally brought the stun gun into Hong Kong.  The Court of Appeal held there being no evidence the appellant intended to use the stun gun for an unlawful purpose in Hong Kong reduced the starting point of 2 years and 6 months to 18 months.  

13. A sentence of 2 years and 6 months imprisonment was however upheld for possession of a stun gun capable of discharging a maximum of 75,000 volts in HKSAR v Yung Ting ChunCACC 164/1999. In R v Wong Chuen Pong CACC 579/1996 a sentence of 2 years was affirmed where the appellant pleaded guilty to possession of a stun gun which could discharge 60,000 volts.  Both these cases were considered by the Court of Appeal in Wong Wing Wong and Li Hung Kwan. 

14. Mr Kwong submits the facts of Wong Wing Wong are similar save that the maximum voltage of the stun gun is higher namely 20,000 volts as opposed to 6,250 volts.  In my view the reference to 20,000 volts in Wong Wing Wong is reference to the average peak to peak pulsating output voltage generated from the stun gun and not the number of high voltage pulses when the gun is discharged for a continuous period of three seconds. 

15. The average peak to peak pulsating output voltage generated from the stunning device being 77,997 volts makes the stunning device possessed by you more powerful than the one in Wong Wing Wong.  The electrical effects are however similar the English digest in Wong Wing Wong reporting that a person stunned by the stun gun would be immobilized, feel pain and suffer loss of balance. 

Unlawful purpose

16. Mr Kwong submits that there is no evidence you were to use the stunning device for unlawful purpose.  Although no money was found on you on arrest Mr Kwong explains you had bank cards from which you could withdraw money, the bank cards having already been returned to you by the police.  I am told your trip to Hong Kong was sponsored by your work colleagues who asked you to buy mobile phones and ointment. 

17. You say that you always carry the stunning device in your rucksack because no locker is provided in your quarters.  You therefore did not intentionally bring the device with you to Hong Kong whilst at the same time being ignorant that these devices are illegal in Hong Kong.

18. When asked in court for an explanation why you were also carrying a simulated bomb together with the stunning device Mr Kwong said that according to his understanding the simulated bomb had been put in your rucksack by a work colleague (an explanation which you also apparently gave to the police). Having sought your confirmation Mr Kwong withdrew this explanation and said that you bought the simulated bomb in China already connected. 

19. As indicated in court whilst you may have bought the stunning device for self protection in the Mainland I do not accept you brought the device together with the simulated bomb to Hong Kong because you kept the device in your rucksack.  As is your right you have elected not to give evidence to support this claim.

20. Whilst the expert evidence is that the bomb was harmless I am satisfied that being found together with the stunning device there was a real risk that the device would be used for an unlawful purpose.  In all the circumstances I am satisfied a starting point of 2 years and 6 months imprisonment is appropriate.  Giving you full credit for your plea of guilty you are convicted and sentenced to 1 year and 8 months imprisonment.