HKSAR v. HUSSAIN AFSAR

DCCC1106/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1106 OF 2011

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Reasons for Sentence

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1.  Defendant, you have pleaded guilty to one charge of possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap.238.

2.  You have admitted on the 8th day of August 2011, outside the MTR University station, East Rail line, Sha Tin, New Territories in Hong Kong, you had in your possession arms, namely, two stunning devices without a licence; effectively, two stun guns.

3.  The facts are very brief.  You were seen by police officers outside the University station and they intercepted you for enquiries, and upon search they found the two stun guns inside a plastic bag which you were carrying.

4.  The police arrested you.  Under caution, you remained silent and when you were brought back to the police station.  With the assistance of an Urdu interpreter, you made certain statements under caution, in effect, denying that you knew that what you were carrying was a stun gun.

5.  However, you admitted today before the court that you came to know it was a stun gun shortly before you were arrested by the police officers.

6.  You are 28 years of age and of clear record.  You come from India. Just prior to you being arrested in Hong Kong, you had, in fact, been working in Shenzhen, China as a cross-border salesman taking Indian provisions from Hong Kong to China.

7.  I am informed by your counsel, Miss Panesar, that you took these stun guns to Hong Kong from China as you had met somebody in China called “Chand.”  He asked you to bring these guns to Hong Kong and hand them over to another Pakistani male.

8.  At that time you agreed to bring them over, you did not know they were stun guns, but believed they were a torch or an object that was used for killing mosquitoes. However, when you came to Hong Kong, your friend who was accompanying you saw these two stun guns and told you then that they were stun guns.

9.  You were told to deliver these guns to a person in Hong Kong and you were to meet him at the University station.  However, prior to meeting him, you were arrested.

10.  I have been referred to many previously decided cases by your counsel, Miss Panesar, on the appropriate starting point.  I recognise there is no tariff.

11.  The major cases are that of HKSAR v Li Hung Kwan, CACC 250/2002; HKSAR v Fan Kwok Wai, CACC 264/2005; and DCCC 713/2011, HKSAR v Zhou Yiping; and DCCC 479/2009, HKSAR v Lau Wai Hong.

12.  In short, Miss Panesar says that you are, in fact, a very hardworking, enterprising young man who had left India to try and make a living in China.  The money you had made from selling Indian provisions in China, you had used to buy mobile phones which you later took to and sold in India.

13.  You have all along been a law-abiding citizen and you were taking these stun guns to Hong Kong to just pass on to another person.

14.  Miss Panesar has recognised that the strongest mitigating factor in your case is, of course, your plea of guilty.

15.  Miss Panesar, although recognising that the level of voltage is high in this case, has tried to persuade the court in mitigation that you never intended to use this for any unlawful purpose.  On the evidence; I accept that to be the case.

16.  It is clear from the case of Fan Kwok Wai that in considering the sentence for stun guns, the court should take into account the power of the weapon, that is, what level of voltage it is capable of discharging.

17.  In this case, the peak-to-peak pulsating voltage generated from one of the guns was found to be 409,000-odd volts.  For the other gun, it was 540,000 odd volts.

18.  Compared to the other cases which have been submitted to me, that does seem to be in the higher range of voltage for arms of this type.

19.  The forensic pathologist opined that these two guns, when applied to the human body, were capable of causing localised pain, twitching of local skeletal muscles, resulting in jolting and shaking sensations and even temporary incapacitation.

20.  The second consideration is, of course, whether there is evidence that the offender or some other person may use the weapon for an unlawful purpose or to facilitate an unlawful activity.

21.  I accept from Miss Panesar, as I mentioned earlier, that there is no evidence that you would be using these guns for any unlawful purpose.

22.  You were, however, a mule in delivering these guns to Hong Kong from China and it would have been likely that the guns may have been used to facilitate some unlawful activity.

23.  I note from the facts that you had mentioned that Chand had agreed to reward you 3 to 4 hundred dollars for taking these guns to Hong Kong.

24.  The cases that have been submitted as to their sentences have been very wide in their variance in sentence.

25.  I have taken into account the fact that you yourself did not use the weapons for unlawful purpose however you had brought two of these powerful weapons to Hong Kong for a third party.  No doubt a deterrent sentence is warranted.  On the facts before this court, I think an appropriate starting point for this offence is one of 2½ years’ imprisonment.

26.  You have pleaded guilty before this court.  Taking into account your plea of guilty, a discount of one third is warranted.  In the circumstances you should be sentenced to 20 months’ imprisonment.