CRIMINAL CASE NO. 38 OF 2012
COURT: The defendant, Leung Kwok-chi, pleaded guilty to one 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.
The charge alleged that on 15 April 2011 at his home in Fu Cheong Estate, the defendant had in his possession a large quantity of ammunition and a number of firearms without a licence; those items are set out in the particulars of the charge as items 1 to 15:
(1) one United States origin Thompson Contender firearm consisting of one “receiver assembly” and one barrel;
(2) eight silencers;
(3) four firearm barrels;
(4) one Crosman Classic Pellet Rifle (air gun);
(5) one ERMA WERKE Mod EGR 66 Kal 9 mm Revolver;
(6) one RAM Combat cal. 43 S/N RC08F00305 (air gun);
(7) one PTB Revolver;
(8) one Crosman air gun;
(9) one ORION 12Ga Calibre Flare Pistol;
(10) one piece of 38 mm cartridge smoke yellow;
(11) one piece of 1.5 inch Ferret liquid CS, Barricade-penetrating cartridge, complete;
(12) 2,173 rounds of 0.22 calibre ammunition;
(13) 640 rounds of 0.38 calibre ammunition;
(14) 659 rounds of 9 mm calibre ammunition; and
(15) 109 rounds of 357 Mag calibre ammunition.
The offence came to light because the defendant went to the hospital to obtain medical treatment for a gunshot wound to his left thigh. The case was reported to the police by the hospital staff and in answer to inquiries, the defendant said that he shot himself accidentally while he was cleaning a rifle. He had given the same explanation to the hospital staff.
The defendant was treated at the hospital for a 1 cm wound over the anteromedial thigh on the left side and an exit wound, also 1 cm, over the posterior thigh. He underwent an emergency operation on 19 April 2011 and was discharged from hospital on 27 April 2011. He had been arrested on 16 April 2011 and a statement was taken from him while he was in the hospital.
A police search of the flat revealed, inter alia, a licensed Thompson Contender 0.22 calibre rifle on the floor with a fired cartridge case jammed in the chamber. A bullet hole was found on a chair and a bullet fragment was found beneath the chair. A large quantity of firearms, pistols, guns, component parts for guns, ammunition and miscellaneous arms-related items were found in the flat.
The defendant, at the time of this offence, held Arms and Ammunition Licence No. 7755, which was first issued on 8 March 1985 and which permitted him to have specific firearms with recorded serial numbers and a prescribed quantity of appropriate ammunition. Of the 14 items which were licensed, three were required to be kept at the Rifle Association premises but the other items were permitted to remain in the defendant’s flat. A shotgun, two rifles and a pistol, all of which were operative, were kept in the flat together with other items of weaponry which were deactivated in accordance with the authorisation.
Under the terms of his licence, the defendant was permitted to have ammunition inside the flat, namely 300 rounds of 12 gauge calibre ammunition and 400 rounds of 0.22 calibre ammunition. In fact, the defendant kept ammunition as follows: 300 rounds of 12 gauge calibre ammunition; 2,573 rounds of 0.22 calibre ammunition; 659 rounds of 9 mm calibre ammunition; 940 rounds of 0.38 calibre ammunition and 109 rounds of 357 Mag calibre ammunition.
Firearms and ammunition which were not authorised by the licence were found in the flat. There was a metal locker in the flat which was purportedly a gun locker but it was not large enough to store all the firearms and ammunition recovered, and when the police searched the flat, it did not have anything inside it except the magazine of a gun. It was open.
The defendant was asked about the source of the unlicensed firearms and other items but could only give vague answers. The basis of his admissions was that he had purchased the items many years ago but could not recall where he had purchased them from. Eight silencers which were found in his flat, which is item 2 in the charge, were said to have been purchased many years ago and he could not recall the name of the shop.
He had picked up a live smoke grenade - which is Exhibit 161 - from a firing range in Pak Lai years ago and had since kept it for his collection. A CS grenade, which is a ‘tear gas’ grenade - Exhibit 162 - he had picked up in a refugee camp and kept. The CS grenade contained noxious liquid and gas which, on impact, could be released. However, there was no firing device such as was needed for it in the flat. The defendant recalled that one firearm had been bought from the Universal Toy Gun Shop in Waterloo Road more than 20 years ago. The defendant was a retired Correctional Services Officer and presumably was working as such when he found the tear gas grenade in the refugee camp.
There are a number of matters pertinent to consideration of sentence relating to this offence. First of all, this is by its nature a very serious offence punishable by a maximum of 14 years’ imprisonment and a maximum fine of $100,000 as set out in the Ordinance. Here there was a very large number of items, none of which seemed to be properly secured and photographs show that the whole flat appears to have been used as an insecure gun locker. The items, including the ammunition, appear to have been kept under lock and key in some cases but, in most cases, were accessible to anybody.
A sketch plan showed how widespread the distribution of ammunition and arms was and the photographs produced confirmed that. Some of the items were gun component parts which could be easily converted to working order, for example, silencers, barrels, receivers and adapters. Further, there was a plenitude of compatible ammunition far in excess of the quantities that were permitted by the defendant’s licence.
The defendant had a clear record. The court, concerned by the number and nature of the items found in the flat and the defendant’s insistence that he did not remember, despite his collecting habit, where the items had come from, considered it was appropriate to obtain a background report and a psychologist’s report before sentencing. The background report was obtained. It was detailed and set out the defendant’s family history, his education history and his employment history.
Before joining the Hong Kong Correctional Services Department in 1970, he had done various jobs. Later, he worked as a Prison Officer and Assistant Officer until his retirement in 2001. He had worked in a number of correctional institutions, refugee camps, remand centres, detention centre and drug treatment centre.
He had been a member of the Hong Kong Rifle Association since 1984 and the CSD Gun Club since 1986 as well as the Hong Kong Practical and Shooting Association since 1988. In addition, he belonged to other overseas gun clubs such as the Winnipeg Police Revolver Club and Canadian Police Combaters Association.
The defendant told the reporting officer that he collected and obtained the guns that had been deactivated and bought from his friends. He also collected air guns and electric guns from gun toyshops. He said he only used a few of the guns while many of those in his possession had not been used at all.
According to him, most of the bullets found could not be used while those that could be used were used for practising and competitions. He said he sometimes bought more bullets as they were out of stock on occasion. He said he was not aware that he had so many non-used bullets left after practising and competitions. According to him, the guns had been bought before his retirement for practising and taking part in such competitions. He spent at that time $1,500 to $2,000 on bullets a month, with $5,000 to $10,000 being spent on buying guns each month before his retirement.
The defendant’s wife described her husband as a responsible husband and loving father. According to her, the accused had no vices and his hobbies were making model planes, collecting antiques and guns. His gun hobby, according to her, had not affected the family and he had made regular financial contribution to the family. According to his wife, the accused was careful about locking the guns up properly at home. It is difficult to consider that as being particularly accurate given the number of guns that were found in the photographs.
Both the accused and his wife pleaded with the reporting officer for a lenient sentence. The wife said that she needed the husband to take care of her because she was suffering from diabetes, hypertension and gallstones and she said she was finding it difficult to believe that the accused was in prison when he had once worked in prison himself.
The other report was a psychologist report which was prepared by Dr Anita C Leung who interviewed Mr Leung and his wife. She confirmed that the defendant had been brought up in humble circumstances and had completed only up to Primary 5. In 1970, he applied for a job in Correctional Services Department and worked there until his retirement. He had married in 1972 and had a daughter and a son, born in 1974 and 1978 respectively. His daughter had suffered from Systemic Lupus Erythematosus for four to five years which involved her going in and out of hospital.
In 1992 his daughter died suddenly, aged 18 years, and from about that time, the defendant became more absorbed in his interest in arms and shooting. He became obsessed by collecting all sorts of deactivated firearms, model guns, air guns, accessories, and blank or deactivated cartridges and derived satisfaction from cleaning this collection when nobody was around at home.
He had joined the Hong Kong Rifle Association as a member in 1984 and was a founding member of the Gun Club of the Correctional Services Department Sports Association which was formed in 1985. He represented the Correctional Services in competitive shooting matches. He served as a volunteer in the shooting range before and after his retirement. He had developed satisfying relationships in the field of shooting, both locally and overseas.
The defendant retired in 2004 at the age of 54 because he was suffering from heart problems. In 2003, his son’s spine was injured while he was working as a temporary casual worker and the defendant used up the lump sum from his pension on medical treatment and rehabilitation for his son.
According to Dr Leung, Mr Leung felt confused and helpless at this stage. He had attempted to jump out of a window while he was in the hospital. He had been transferred to Siu Lam Psychiatric Centre and remanded for more than 70 days. He told her that he had trouble sleeping at night and had nightmares. The defendant also told Dr Leung that he intended to give up his hobby and give away all his arms and ammunition in case he committed an offence again. He had begun to develop other interests, such as fishing and construction of model airplanes to play with his grandson.
A psychological profile of the defendant was done according to the Millon Clinical Multiaxial Inventory. That portrayed a rule-bound and duty-bound personality, concerned about doing things correctly and responsibly and accepting punishment for wrongdoing. It was also suggested that he was committed to personal relationships and modest about his own accomplishments. The psychologist noted prominent symptoms of anxiety, depression and post-traumatic stress disorder.
Dr Leung described the defendant as an upright and modest person, law-abiding and committed to his family. Shooting had been his only hobby for the past 25 years. He had achieved much in international games and had developed satisfying relationships internationally and locally through the sport. He had acquired the qualification of a Range Conducting Officer and had volunteered for that service for a number of years.
The death of his daughter, his failing health and his son’s injury caused him to feel losses and this had led to him becoming more obsessed and collecting all sorts of deactivated firearms, air guns, model guns, accessories and blank or deactivated cartridges and cleaning his collection.
His accidental injury, his being charged with possession of firearms and ammunition without a licence and his experiences in the police custodial cell and Siu Lam Psychiatric Centre were all causes of trauma to him. He regretted his obsession with his hobby and presented to Dr Leung as anxious, depressed and helpless.
Dr Leung assessed him as a person of good character and described him as a constructive asset to the community. She said that he needed to be helped to overcome his grief and trauma and to have his quality of life enhanced.
As well as those reports, after I had adjourned for sentence, I considered it advisable to have some explanation from the Licensing Authority about policy regarding arms and ammunition. Accordingly, on 16 October 2012, a hearing was arranged where Chief Inspector Chow Ngai-kong, who is attached to the Police Licensing Office, very kindly attended court, all parties being present, to answer questions relating to policies and practices governing arms and ammunition licensing and to tell the court what supervision was given to licensees. I must say that I am very grateful to the Chief Inspector for that information.
I paraphrase what was discovered as a result of what the Chief Inspector told the court. Firearms and ammunition licences can be applied for by any citizen of Hong Kong aged 18 or above, who is a fit and proper person, who has a good reason for possession and who will keep the guns and ammunition in such a way that they will not cause concern for the security or safety of the public. The reasons for possession are effectively for sports competitions and recreation purposes. Each licence holder must be affiliated to a gun club. Applicants do not have to provide referees; no fingerprints are taken; and health checks are not mandatory.
There are 19 registered gun clubs in Hong Kong. Guns are inspected prior to the licence being granted. The gun club certifies the model number and description and makes a recommendation. Then what Chief Inspector Chow referred to as ‘frontline officers’ would check the guns and their storage before and after the issue of the licence. The amount of ammunition which is permitted to be kept depends on the amount which is needed for competitive purposes and which is appropriate for the particular firearm.
The basic condition is that guns and ammunition are stored separately in locked containers if kept at home. The licensee is subject to annual inspection, although this is not done on a surprise visit basis, but licensees are informed in advance that an inspection will be carried out. I would comment that, in my view, such a form of inspection is of little value as advance notice means the licensee can put his arms and ammunition in order solely for the purposes of inspection.
As at 1 October 2012, there were 483 licensees in Hong Kong and those licences covered a total of 3,140 live weapons. There are 23 licensed arms dealers. The dealer will issue an agreement saying that he will sell a gun before a licence is issued, but this occurs almost simultaneously with the issue of the licence. Gun parts, component gun parts, are required to be licensed separately.
The court was informed that before 1997, arms and ammunition could be stored at the home of the licensee if approval was given to storage conditions. After 1997, an applicant for a new licence had to store guns and ammunition at an approved armoury. However, those licensees who held licences before 1997 - and the defendant comes into this category - were and are still permitted to keep approved arms and ammunition at home. This appears to be based on a belief that the licensee should have a legitimate and reasonable expectation that the pre-1997 conditions should apply. However, that cannot be right.
There are 147 licensees who obtained licences before 1997 and those licences cover 372 guns which can still be stored at the home of the licence holder. The pre-1997 licensees are allowed to keep the guns at home if they apply to do so. This applies to rifles, shotguns or air pistols. However, because handguns were easier to conceal, they were not allowed to be stored at home either before or after 1997. There appeared to be no limit to the number of guns that can be held by one person and a licensee generally will have one gun of each calibre and can have a spare gun in case of malfunction.
So prior to 1997, deactivated firearms were not required to be stored in an armoury but since 1997, apparently, those items must be stored in a secured cabinet at home. Amendments to the licensing conditions are printed out and notified to the licensee.
There appear to be at least two flaws in the licensing system, perhaps three. The first is that I note from the licence of the defendant that his photograph was still the same as it was in 1985. Second, there is no surprise inspection done in respect of the licence holders. The most worrying flaw is that the licensees who still hold licences from pre-1997 are entitled to keep guns at home. I can see no justification for maintaining that system in present-day Hong Kong. It should be the case that all firearms are kept in an armoury attached to a properly licensed gun club.
It is particularly difficult to understand, for instance, why it was justified or necessary for the defendant, who was living in a small public housing flat in an urban area, to have a shotgun, two rifles and a pistol together with a substantial quantity of compatible ammunition kept at his home.
Photographs taken for evidential purposes show that various items were strewn throughout the flat, which is about 300 square feet. There was no especially complicated lock on the front door of the flat which opened directly into the living area. Offending items were found on open shelves, in unlocked drawers and on the floor. Five boxes containing unlicensed ammunition of various calibres were found inside the wardrobe in the bedroom, clearly exposed and accessible. A pistol was inside the cupboard, a Remington shotgun, a gun barrel, two firearm parts, a box containing a pistol were also found in the bedroom. A black bag containing a Colt pistol and a box containing gun parts was found in the bedroom. Another revolver in a brown holster was found in the wardrobe and other gun-related items were found in the bedroom as well.
I do accept that some of these items were replica items and I accept that a number of them were deactivated. However, it is possible, although I am told it is difficult, to reactivate deactivated items, but it is also possible to modify replica items so that they are capable of firing ammunition.
A Crosman Classic Pellet rifle was found near the computer desk in the living room. A revolver with a black holster was found underneath the computer desk. A 7.62 mm pistol, one of the licensed firearms, was found on a bookshelf in the living room. A quantity of ammunition was found in a display cabinet in the living room. Another cabinet contained yet more ammunition. There was no strong lock on either cabinet apparent from the photographs. A box containing firearms was found on top of the wardrobe. A box containing an air gun was found on the floor underneath the coffee table.
I catalogue the placement of these items and their apparently inadequate storage to show how dangerous the collection of guns could actually be.
A large amount of material was put before the court in the course of mitigation. I have read it all and I have considered it carefully, but I do not propose to repeat it all here. There were a number of letters from persons who have and have had close connections with the defendant, mostly through the Correctional Services Department or the gun clubs to which he belonged, and those writers effectively gave character evidence for this defendant.
Mr Lee Gar-san, the retired General Manager of Correctional Services Department, had worked with the defendant and also took part in sports shooting activities and competitions in Hong Kong and overseas with him and had taken courses on guns maintenance and firearms training. He confirmed that the defendant was an enthusiastic participant in competitive shooting and had also used his expertise in the course of his duties. He believed that he was a conscientious husband and father.
Mr Samson Chan who had worked with the defendant and had contact with him through the formation of the CSD shooting club, referred to him as a highly responsible and self-disciplined CSD officer who had not taken any nonsense from other shooting team members, regardless of their rank, during shooting practices and competitions. He confirmed that after the defendant’s daughter’s death and later, his son’s serious injury, the defendant had been helped through those difficult times by his passion for shooting sports and the comradeship and support of his team members. Mr Samson Chan attributed the defendant’s present predicament to an over-zealous passion for the shooting sports.
Included in the mitigation material were letters from the persons who were involved with the defendant through the Hong Kong Practical Shooting Association and the Hong Kong Rifle Association, both of whom attested to his enthusiasm and the amount of time and effort he had put into his activities. They sought leniency for the defendant.
There was also a letter from the defendant himself, expressing his great remorse. His wife, his son, his daughter-in-law and grandson had all written letters extolling the good qualities of the defendant as husband, father and grandfather. All referred to him as being traumatised by these events and sought leniency in terms of sentence.
Other letters in mitigation related to his work with Correctional Services Department from 1970 to 2001 when he retired, including a commendation that he received from the Commissioner of Correctional Services.
A large number of certificates was exhibited which attested to the defendant’s skill as a marksman and gave some idea of the many occasions on which he had been a competitor in competitions both in Hong Kong and overseas between 1986 and 2010.
Details of his Range Officer appointment were set out for the period 1996 until 2009.
The court was also informed of the charitable assistance that the defendant had given to sponsor children in need.
Having digested the material put before me, it appears that the defendant is not just a man of clear record, but that he is a man of positive good character. He was considered a good employee while working for CSD. He is known by his family as a loving and supportive husband, father and grandfather.
He was an enthusiastic participant in shooting sports and at times of personal stress appears to have become even more zealous in taking part in such sports. Unfortunately, the present offence indicates that at some stage this urge to collect gun-related items has become more of an obsession than the absorbing hobby that it should have been.
No other explanation seems to account satisfactorily for his having so much unlicensed and potentially dangerous material at home. Examples of immediate dangers posed by that material are the tear gas canister and the grenade, both of which were considered by the ballistics expert to be very volatile.
There was no real explanation offered as to the reason the rifle that he was cleaning had been loaded. Nor has there been any satisfactory account as to where so much of the unlicensed material came from.
After 25 years as a licensed gun holder, the defendant can have been in no doubt that he was wrongfully in possession of unlicensed material. I accept that he is not charged specifically with breaches of his licence conditions, but the fact that these licensed weapons were not stored correctly is indicative of how far he has strayed from commonsense and prudence when dealing with firearms and ammunition.
The defendant had invested a lot of time and energy in his work as a Range Officer. He was licensed as a Range Officer at the time of this offence. That makes it even more reprehensible that he should possess unlicensed arms and ammunition, but worse than that, he was living in a house where this dangerous material was not properly stored. I note that the defendant had a 9-year-old grandson who could certainly have been at risk if he had visited the home where his grandfather lived, given the amount of unsecured material that was there.
The defendant appears to have forgotten entirely the safety laws that he must have known and practised over the years. It may be that after 25 years, he considered himself so proficient with firearms that he thought the rules could be ignored. It appears that the gun with which he shot himself was alicensed weapon and that he was cleaning it when it was loaded. That is not the kind of elementary mistake that one would expect from a man of his experience.
As I said earlier, the maximum penalty for sentence was 14 years’ imprisonment and a fine of $100,000. A starting point for sentence in excess of 10 years is regularly adopted in case such as this. In R v Ho Chun [1992] 1 HKCLR 86, a sentence of at least 8 years’ imprisonment after a guilty plea was imposed for possession of firearms and ammunition without a licence. That involved a 7.62 mm x 25 calibre semi-automatic pistol and 12 rounds of live ammunition for that pistol. It was an aggravating feature in that case that the gun had been fired.
In R v Man Hung Pui [1993] 2 HKC 174, a 17-year-old youth who pleaded guilty was sentenced to 32 months’ imprisonment. I note that the possession of a loaded firearm would attract a heavier sentence than possession of a firearm without ammunition. The possession of an unloaded firearm and ammunition calls for a more severe sentence than that for possession of an unloaded firearm alone and the possession of ammunition is usually less serious than the possession of arms.
In this case I note at least one of the guns must have been loaded for the defendant to have caused himself an injury, but no other guns were found to be loaded in the flat.
In R v Au Yeung Wai Kwong, CACC238/1994, unreported, a sentence of 8 years after a guilty plea was given and a starting point of 12 years was considered appropriate.
In R v Leung Shiu Lun [1997] HKC 758, which related to possession of air rifles and air pistols, the court considered them less serious than the possession of unlicensed firearms proper and took a starting point of 15 months’ imprisonment as being adequate.
In HKSAR v Chan Hoi Ngam [2000] 1 HKC 618, the guns involved were a 9 mm short calibre self-loading pistol, two pistol magazines designed for a 9 mm short calibre pistol, a 9 mm pistol silencer, a metal aerosol canister containing tear gas, and 13 rounds of 9 mm short calibre ammunition. That attracted a sentence of 7 years and 4 months’ imprisonment after a guilty plea.
The court commented in that case they would not have criticised the judge if he had adopted 12 years as the appropriate starting point. Such a starting point was said to be normally appropriate for those who arm themselves with weapons of this kind in working condition and with ammunition available. I accept that that case is not on all fours with the present situation.
In HKSAR v Yau Siu Kai [2001] 1 HKC 427, the weapon involved was a fully loaded converted revolver. The defendant was sentenced to 7 years’ imprisonment after a guilty plea.
In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the general rule was stated that deterrence is the purpose of a sentence in a case such as this and there is a need to assess the potential risk posed by the firearms, and it set out the factors for consideration which had been referred to by Mr Chan.
Chan Chi Fun set out the matters that will be noted, that the court should take into account; the types of arms and ammunition involved; whether the defendant had physically carried the arms and ammunition; whether the arms were loaded; whether the arms had been used; whether the defendant intended to use the arms for illegal purposes; whether the items were properly cared for or stored or whether they were easily accessible by criminals; and whether the defendant had a clear record.
The court went on to say that determination of sentence depends on the court’s assessment of the potential risk imposed by the arms and ammunition under the possession of the defendant, taking into account the circumstances of the case, the defendant’s background and the possibility of the arms and ammunition being used by other persons. Under circumstances where the defendant carried the arms which were loaded and the arms had been used, the starting point on conviction would be 12 years’ imprisonment.
In HKSAR v Kwai Ping Hung [2007] 1 HKC 620, there was a maximum sentence of 14 years’ imprisonment given because the guns and ammunition in that case were effectively an arsenal of a great number of items.
In HKSAR v Chau Lap Pui [2007] 2 HKC 342, which related to possession of a bottle of pepper spray, a starting point of 6 months’ imprisonment was considered proper.
In HKSAR v Lui Fui [2008] 3 HKC 218, which involved the possession of a grenade, there was no evidence that the defendant had any intention to use it and a sentence of 33 months was upheld by the court.
The most recent case of significance is that of Secretary for Justice v Yan Shen CAAR10/2011 which was an application for review by the Secretary for Justice on the grounds that the sentence imposed was manifestly inadequate and wrong in principle. The applicant had been found at the airport in possession of a pistol with a magazine without a licence. He had been sentenced to 260 hours of community service and fined $50,000. It was accepted by the applicant that the respondent did not intentionally or knowingly take the gun to the airport for various reasons which were set out in the judgment and it had slipped his mind that he had it in his possession.
In that case, a psychologist’s report and a psychiatrist’s report were put before the court and the judge called for a psychologist’s report to be prepared by a government psychologist and also asked for a background report. The defendant was said to be suffering from an adjustment disorder and anxiety but no evidence of any violent temperament was found and although the government psychologist did not make a similar diagnosis, he did not contradict the finding of the other psychologist.
The court in Yan Shen considered the sentencing exercise difficult because the defendant in that case was a man of unblemished and impressive record, who was highly successful in his banking career, but had nevertheless been convicted of a very serious offence. The judge accepted that he had no intention to use the firearm and that he had previously taken great precautions to keep the firearm in safe custody. The court stated at page 14:
“However, in the case of unlicensed possession of firearms, 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. It is a category of offence which in general requires a deterrent sentence by which is meant ‘sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider’. But that does not require a blind eye to be turned to individual circumstances. Whilst, normally, unlicensed possession of a firearm will result in an immediate custodial sentence, often a substantial term, there will be truly exceptional cases where the imposition of a non-custodial term may be justified; although the sentencing tribunal will be expected to furnish a sensible and clear explanation for taking that exceptional course.”
At paragraph 37, the court stated:
“...As a major and densely populated city, Hong Kong is a remarkably safe place and known to be so. One of the reasons it is safe, we suggest, is to be found in the strict gun control laws of this jurisdiction and the absence of guns on its streets. The community, with the assistance of the courts, is intent on keeping it that way.
38. What then are exceptional circumstances? It would be unwise to suggest examples but we suggest that an exceptional case will tend to be the case where the reasons for a non-custodial sentence, when explained, will readily be understood by the public to be sufficiently unusual to warrant a departure from the tough norm; in such a case general deterrence is not undermined. ...in many cases general deterrence is realistically the true and only deterrent objective and it is an objective which will tend significantly to outweigh considerations personal to the offender.”
The court in Yan Shen concluded eventually that the circumstances described in that case were not so exceptional as to justify a non-custodial sentence but because of post-sentencing factors, they would not allow the application for review. They indicated that the appropriate sentence in that case, after plea, should have been in the region of 18 months’ imprisonment.
There are certain similarities between Yan Shen and the present situation in that the defendant is a person of good character and reputation. He did not intend to use the items for an unlawful purpose. He had suffered symptoms of depression as a result of the incident and his arrest, his remand and his waiting for trial had also caused him great personal distress.
Similarly, his remand in Siu Lam Psychiatric Centre for more than 70 days had been traumatic for him. He had lost his arms and ammunition licence. His hobby which had been such a mainstay of his life for 25 years is no longer available to him. There is a financial loss involved in the confiscation of the weapons and ammunition which will be ordered by the court, and it is possible that had he been obliged to keep all his arms and ammunition at an armoury, away from his home, it is possible that this offence might not have occurred.
The defendant has pleaded guilty and has been fully co-operative in the investigation. I must note, however, that the defendant knew what he was doing and the risk he was running with unlicensed weapons. Giving him the benefit of as much doubt as I can, the storage arrangements were not satisfactory. The guns would have been accessible to anybody who entered the flat with nefarious intent. Items such as the grenade and the tear gas cylinder were intrinsically dangerous and could cause harm to the inhabitants of the flat.
Under those circumstances, I do not see that a non-custodial sentence is a realistic option. However, I can see no advantage in imposing a very lengthy sentence in this case and taking all factors into account, I believe that the case should be dealt with by a sentence which is deterrent but which is not so severe as to destroy the defendant’s life.
In this case, I have decided that 18 months’ imprisonment is the appropriate sentence and that is the sentence I pass.