HKSAR v. MENG MIN

 DCCC1023/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1023 OF 2009

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

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

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

Reasons for Sentence

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

1.  Defendant, you have pleaded guilty to three charges before me.  The charges all relate to the same date, 3 June 2009, at the same place, that is Room 2421, Hing Shing House, Tai Hing Estate, Tuen Mun, New Territories.

2.  The first charge is one of possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap.238, in that you had in your possession one stun gun without a licence.

3.  The second charge relates to possession of ammunition without a licence, contrary to section 13(1) and (2) of the same, and in that charge you had various bullets and cartridges, to which I will refer later in the facts.

4.  The third charge relates to possession of a prohibited weapon, contrary to section 4 of the Weapons Ordinance, Cap.217, and that weapon concerned a knuckleduster.

5.  On 3 June at about 4.30 pm, police officers executed a search warrant at your mother’s house in Tuen Mun.  That searched was conducted in the presence of yourself and your mother. 

6.  The police found an electric stun gun (E1) inside a plastic drawer located at the balcony, which is the subject of Charge 1.  They also found three cartridge cases in 7.62 by 25 millimetre calibre with one 7.62 millimetre calibre bullet inserted in each of their case mouths (E2) inside a spectacles case found inside a plastic drawer located at the living room.  They also found inside that spectacles case four live rounds of ammunition in .22 LR calibre (E3); eight live rounds of blank cartridges consistent with those designed for use in a cartridge-operated fixing tool (E4); 10 live rounds of blank cartridges consistent with those designed for use in a cartridge-operated fixing tool (E5), all of those being the subject matter of Charge 2.  They then found the metal knuckleduster inside a plastic drawer located inside the living room.  They also found a number of imitation guns and ammunition inside the flat.

7.  Defendant, upon arrest and under caution, you admitted that all those items belonged to you and not your mother, that is inclusive of the imitation guns and ammunition.

8.  Under caution, you said you purchased Exhibits 1 to 6 as well as the other imitation guns from a shop in Wah Keung Street, Shenzhen.  You then brought E1 to E6 to Hong Kong on several occasions.  The last occasion was in March 2008, when you brought the stun gun to Hong Kong.  You possessed the stun gun for self-defence since you had a tattoo on your arm and you were scared that you might be bullied by the triad members in Hong Kong or in the mainland.  You possessed the ammunition, E2 to E5, for your personal collection as you were a  member of the air force in the Mainland between 1982 and 1986 and you were interested in guns.  You possessed the knuckleduster for your own use as you used it to practice Kung Fu at home.

9.  As to the stun gun, the witness statement and report were submitted to the court.  The average peak to peak pulsating voltage generated was 90,094 volts. 

10.  The ammunition was examined.  E2 could not be discharged in any firearm because of its current condition.  E3 was suitable to be discharged in like firearms, such as a Smith and Wesson Model 17 revolver.  E4 and E5 were blank cartridges consistent with those designed for use in a cartridge-operated fixing tool, and E6 was a commercially produced knuckleduster.

11.  Your solicitor, Mr Pang, has mitigated fully on your behalf.  I have taken into account all that he has had to say.  As a result of his mitigation advanced on the last occasion, I was concerned as he had told me that you were severely injured some 20 years ago in war by having 29 wounds all over your body and still had a bullet shell inside your head.  My observation was that if you were so severely wounded by ammunition of this type and by these guns, why is it then did you keep these type of things as your hobby or habit to collect?  I therefore called for a Background Report, a psychologist’s report and a psychiatric report.

12.  I have taken into account what has been said in those reports, for which your solicitor, Mr Pang, tells me you have agreed to all the contents.

13.  You are 43 years of age and of clear record.  You were born in Mainland China and had come to Hong Kong on a Two-way Permit Visa to visit your mother, who is living in Hong Kong.  You were a soldier in the army for 4 years from 1982 to 1986, a policeman in Beijing between 1986 and 1989, and have been in the computer repair business since 1989.  Your father was a national senior space engineer until he was tragically killed as a result of an accident with experiments in 1977.  Your mother was a medical doctor in China but she married and came to Hong Kong and now practices as a Chinese medicine practitioner.

14.  I am informed that you stopped studying at a young age because you had lost your father and did not want to burden your family in their finances.  You therefore joined the military service.  In that time, you had fought in the battle between China and Vietnam.  You had suffered a head injury due to a mine explosion.  You then left the army and joined the police force. Since 1989 you have worked in the field of computer business.  You have run your own business in the computer business and earn about 30,000 Renminbi a month.

15.  Since your stepfather passed away in 1995 you have come to visit your mother regularly, once or twice a year, and stay with her each time for one or two months.

16.  It is your mitigation that you had these arms and ammunition and prohibited weapon in your possession because you had developed an interest in collecting them as a hobby as during your service in the army you conceived an interest in firearms.

17.  The psychologist and psychiatric report say that you were diagnosed with post-traumatic stress disorder and no inpatient treatment is needed psychiatrically.  As to the psychologist’s report, the need of psychological intervention is also not required at this juncture and your risk of re-offending is low. 

18.  Although you had developed this post-traumatic stress disorder soon after the war some 20 years’ ago, these symptoms have shown remission over the past two decades, i.e., 20 years.  The psychologist says that he is impressed that you have largely recovered from your disorder though you still have some fears about wars and relevant stimuli.  You kept this stun gun, ammunition and range of military collectables to ensure your safety and enhance your sense of security. 

19.  I am informed in the report that most of these collections were kept by you in Beijing.  However, you had thrown away a lot of your military collection, as your girlfriend, who is living with you in Beijing, did not like it.  However, you kept some and took those to Hong Kong and kept it at your mother’s home. 

20.  You said that it was as a result of the ignorance of the law in Hong Kong that you became involved in this offence because in China it was legal to possess these arms and ammunition.

21.  I accept that you were a collector of these arms and ammunition.  You did say that the stun gun was for self-defence.  This, as stated, was brought to Hong Kong in 2008.  That was about a year ago.  It was kept at your mother’s home in a drawer.  It was therefore unlikely to get into the hands of anyone else. I accept that it was not intended to harm anyone.

22.  As I am sure you have been informed, however, these offences are very serious offences and warrant immediate custodial sentences.

23.  In respect of stun guns, the cases to which I refer to are Yung Ting Chun, CACC164/1999; Lai Chi Fai, CACC408/1995; Fan Kwok Wai, CACC264/2005; and Li Hung Kwan [2003] 1 HKLRD 204.  Clearly, in the case of Li Hung Kwan, the court there said that there were no tariffs for this offence.  The sentence to be imposed for possession of this type of weapon depends very much on the circumstances of the individual case.  Important considerations which can arise are, firstly, the power of the weapon, that is, what level of voltage it is capable of discharging; and secondly, whether there is evidence the offender or some other person may use the weapon for an unlawful purpose or to facilitate an unlawful activity.

24.  This is comparatively, to the cases I have cited, a very powerful weapon, almost three times the power of the other stun guns mentioned in those cases.  In Li Hung Kwan, the voltage was 35,000; in Fan Kwok Wai, the voltage of the three separate guns were 20,000, 10,000 and 13,000 respectively; and in Lai Chi Fai, the voltage was 4,800, so in this case comparatively a very, very much more powerful weapon.

25.  Taking into account those factors but recognising that the stun gun was kept at your mother’s house in a drawer and there being no direct evidence that you would use the weapon for an unlawful purpose or to facilitate an unlawful activity, save for the fact that you said that you had brought this gun to Hong Kong for self-defence against triad members in Hong Kong should you be bullied, I consider a starting point of 3 years’ imprisonment after trial to be appropriate.  I reduce that term to one of 2 years’ imprisonment, giving you full credit for your plea of guilty.

26.  As to the second charge of ammunition, I refer to the case of R v Man Hung Pui, CACC222/1992.  Some of the ammunition in your possession was live and some was incapable of being fired by a pistol.  I accept that these were in your possession for your personal collection and that there was no evidence that you intended or it was going to be used.  In that instance, I take a starting point of 3 years’ imprisonment and also reduce that term to 2 years’ imprisonment, giving you full credit for your plea of guilty.

27.  As for the knuckleduster, you said that you had that in your possession to practice martial arts.  I am not sure how this particular type of lethal weapon used for fighting can be practised, and I have grave reservations that this was how it was to be used by you. 

28.  I have to say that in respect of support or documents evidencing, although you have told me as well as all the psychiatrists, psychologists and probation officer about your background in the army and your injuries, there are no certificates or documents supporting your injuries and/or your service in the army or police.  Despite my request to your solicitor to see any supporting documents, he told me that they were all in Beijing and you were unable to get them here to Hong Kong.  I just say for the record that it surprises me that if you did suffer such severe injuries and had served in the army that you can have nothing before me to show that that is the case.  Nevertheless, I accept that you had served in the army and that is how you conceived your interest in firearms.

29.  For the knuckleduster, I take a starting point of 6 weeks’ imprisonment and reduce that to one of 4 weeks’ imprisonment, giving you full credit for your plea of guilty.

30.  I take into account the principle of totality for these three offences and consider that a sentence of 2 years and 2 months’ imprisonment is appropriate. 

31.  In the circumstances, 2 months of Charge 2 shall be served consecutively to Charge 1 and the remaining terms of Charge 2 and 3 shall be served concurrently to all other charges.

32.  So the total term of imprisonment is 2 years and 2 months’ imprisonment.