HKSAR v. YAU CHI KIT

DCCC 201/2019

[2020] HKDC 712

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 201 OF 2019

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to one charge of dealing in arms without a licence, contrary to section 14 of the Firearms and Ammunition Ordinance[1]. The maximum sentence on conviction on indictment is a fine at level 6 ($100,000) and imprisonment for 10 years.

2.  The arms in question are 600 crossbows. 

3.  Full particulars of the offence are set out in the facts admitted by the defendant today[2]. In summary at around 11:40 a.m. on 11 August 2017 the defendant was driving a cross-boundary truck TS 3940 to Hong Kong when the truck was intercepted for customs clearance at the Lok Ma Chau Control Point.  

4.  Upon inspection CO 7118 found inside the truck three hundred boxes containing six hundred crossbows together with an owner’s manual for Barnett crossbows.  Mr Lee has clarified in court there was a manual for each crossbow.

5.  The defendant declared to CO 7118 that the boxes contained plastic crossbows.  The manifest declared three hundred boxes of plastic crossbows[3]. 

6.  Under caution the defendant said that neither he nor his company had any proof that the draw weight of the crossbows fell below 6 kilograms or had any import and export licence for the crossbows[4].

7.  In a video recorded interview, the defendant, inter alia, said that he worked for a logistic company as a cross-boundary truck driver; on 11 August 2017 he received instructions from his supervisor to take over a truck from a Mainland driver which he was to drive to the warehouse of UPS in Chek Lap Kok; he would receive $600 for the job; he took over the truck at Huanggang Port on the Mainland; the truck was already loaded with the boxes; he did not open the boxes for inspection; the manifest given to him declared three hundred boxes of plastic crossbows and he did not know a licence was required to import the crossbows into Hong Kong. 

8.  Subsequent forensic examination on two of the crossbows found that the draw weight exceeded 6 kilograms[5]. Photographs of the crossbows have been submitted to court.  I have inspected one of the crossbows in court.  Mr Lee confirms that all six hundred crossbows are of the same model.

Mitigation

9.  In passing sentence, I have carefully considered the oral and written submissions of Mr Cheung, including that the defendant having separated from his wife in June 2019 is responsible for looking after the two children of the marriage, a son aged 15 and a daughter aged 9 who live with him in Shenzhen[6]. 

10.  The defendant has been a cross-boundary truck driver for twenty odd years.  The defendant was working for YY Logistics when he was asked to transport the crossbows.  Soon after the defendant lost his job with YY Logistics.  The defendant has continued to work as cross-boundary truck driver but owing to the social unrest of 2019 and the onset of the covid-19 pandemic this year his income has substantially reduced.  Recently the defendant was able to secure employment with another logistics company and is presently earning on average about $10,000 per month whereby he can hardly make ends meet[7].

11.  I have read the defendant’s mitigation letter in which he explains the circumstances he came to commit the offences, expresses his remorse and asks for a lenient sentence so he may continue to take care of his children.  I have also read the letters written by the children[8].

12.  I take into account that the defendant, aged 42, has no similar previous convictions and that his only convictions were in 2005 when he was sentenced to 12 months’ imprisonment for offences of dealing with goods to which the Dutiable Commodities Ordinance applied and possession for the purpose of manufacture goods to which forged trade marks were applied. 

13.  Mr Cheung submits that the defendant committed the offence out of ignorance of the law when executing his company’s orders and therefore the offence can be regarded as a technical breach[9]. 

14.  Mr Cheung submits the circumstances of the offending are exceptional and that the defendant can properly be sentenced by way of a non-custodial sentence and asks the court to consider the defendant’s suitability for community service[10].

15.  In support of his submissions Mr Cheung has referred the court to a number of sentencing cases in the District Court[11]. I have considered these cases. 

Discussion

16.  There is no tariff for these offences sentence very much depending on the circumstances of the individual case.  The courts have however repeated that deterrent sentences are required[12].

17.  The crossbows clearly have the potential of causing very serious injury.

18.  In Secretary for Justice v Leung Kwok Chi the Court of Appeal recognising that there are varying degrees of culpability said only by adopting a stringent approach to the unlicensed possession of arms and ammunition the court can ensure Hong Kong continues to be a safe city[13].  

19.  Similarly in Secretary for Justice v Yan Shen the Court of Appeal said one of the reasons Hong Kong is a safe city is the strict gun control laws[14].

20.  In Secretary for Justice v Yan Shen the Court accepted that whilst unlicensed possession of a firearm will normally result in an immediate custodial term, 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[15].

21.  I do not agree this was a technical breach.  No checks were made, whether by the defendant or his employer, to ascertain whether a licence was required.  Steps must be taken by everyone involved in bringing goods into Hong Kong, in particular those in the business of transporting goods, to ensure that the goods can legally be imported into Hong Kong including whether a licence is required. 

22.  I accept that the defendant did not know a licence was needed.  Ignorance of the law is however no defence but may constitute mitigation whereby a merciful sentence can be imposed as culpability is less than someone who has deliberately flouted the law[16].  The case law shows that notwithstanding ignorance of the need for a licence an immediate custodial sentence is usually imposed[17].

23.  In passing sentence emphasis is placed on whether there is any evidence the arms and ammunition were to be used for an unlawful purpose and not on whether the offender knew of the need for a licence.  Where there is no such evidence a more lenient sentence will be imposed. 

24.  One case often referred to is R v Hirai Hirotsugu[18] where a financial penalty was imposed for possession of weapons from the Second World War which were properly stored and posed no risk or threat to the public. 

25.  In HKSAR v Mohamed P Shafik[19], a case concerning stun guns, the Court of Appeal said that even though there may be no present intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such purpose, that is also a factor which will result in a higher starting point of sentence[20].

26.  Mr Cheung emphasises that there was no illegal intention to use the crossbows in Hong Kong and because the defendant delivered the crossbows directly to the warehouse of UPS at Chek Lap Kok, the final destination of the crossbows being the USA where possession of crossbows is generally legal for hunting purposes, there was no danger to the public in Hong Kong[21]. 

27.  Mr Cheung explained that the original intention was that the crossbows would be directly exported to the USA from Guangzhou airport and not taken to Hong Kong.  However due to air-flight capacity being full the crossbows were exported to Hong Kong for transit to the USA[22].

28.  I have been shown the Air Waybill for shipment from Guangzhou to Tampa (USA).  When the defendant was interviewed he gave a copy of the Air Waybill to the Customs.  Mr Lee informs the court that the Customs then went to the Shenzhen office of UPS who confirmed the details that the crossbows were originally to be sent to the USA from Guangzhou airport. 

29.  Mr Lee also accepts that the crossbows were “in transit” to be shipped to the USA.

30.  The intended place of delivery by the defendant being the warehouse of UPS at the airport I accept that the crossbows were to be exported to the USA and that there was no risk the crossbows would fall into the hands of someone who will use them for an unlawful purpose. 

Delay

31.  Where there has been unreasonable delay in bringing an offender to justice this is a mitigating factor which may be taken into account in sentence.  All the circumstances must be looked at including whether the offender has acknowledged guilt; where the delay has given the offender the opportunity to rehabilitate himself; whether restitution has been made; whether there was a legitimate expectation the matter will not be further pursued; the size of the investigation and whether the time taken to bring the case to court was longer than necessary[23].

32.  The defendant was arrested on 11 August 2017 and first appeared in court over 18 months later on 20 February 2019.  Mr Lee informs the court that the investigation was completed in November 2017 and the file sent to the Department of Justice on 23 November 2017.   Legal advice was given on 30 January 2019.  Fourteen months seems an extraordinary long time to furnish advice given the case is not complex. 

33.  Since first appearing in court the delay in bringing the case to trial has been firstly, the granting of several adjournments over a period of six months for the defendant to receive legal advice and secondly, adjournments arising from the covid-19 pandemic. 

34.  The matter has now been hanging over the defendant for just over three years.  I am satisfied this is a factor which I can take into account in passing sentence[24].   

Sentence

35.  Taking into account all the circumstances in which the offence came to be committed including that the manifest declared the goods were crossbows, albeit plastic crossbows, and not goods of an entirely different nature; the defendant acted out of ignorance of the law when executing his company’s orders; there was no risk the crossbows would fall into the hands of someone who will use them for an unlawful purpose; the crossbows were to be exported to the USA, originally from Guangzhou airport and the crossbows are generally legal in the USA, I am satisfied the defendant’s culpability is at the lower end of the scale for which a deterrent sentence is not necessary.

36.  Taking into account just over three years have elapsed since the defendant was arrested and the personal circumstances of the defendant that he has two young children to look after, I am satisfied a non-custodial sentence is appropriate.

37.  I am satisfied that the defendant living in Shenzen is highly unlikely to be suitable for community service, in particular during the present pandemic.

38.  I am satisfied a financial penalty is appropriate with the defendant being given time to pay.  Mr Cheung informs the court that the defendant can pay up to $30,000 within 2 months. 

39.  Taking into account the defendant’s limited income as a cross-boundary driver, I am satisfied a fine of $20,000 is appropriate.  The defendant is convicted and sentenced to a fine of $20,000.

Payment of the fine

40.  The defendant having consented to his bail money being used in part payment of the fine, the balance of the fine in the sum of $18,000 is to be paid on or before 15 September 2020.  In default of payment the defendant will serve 2 months’ imprisonment. 

[1] Cap 238.

[2] Mr Lee adopted the prosecution opening dated 20 January 2020 as the summary of facts. 

[3] The summary of facts refers to the manifests showing the crossbows were to be exported to the USA.  The manifest does not show this. This information appears to have been obtained from the Air Waybill, a copy of which the defendant gave to the Customs when he was interviewed and which has been submitted to the court.  This is further discussed at §28.

[4]   Only a crossbow with a draw weight of more than 6 kilograms is within the definition of arms.  See Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D.

[5] Firearms and Ammunition (Declaration of Arms) Regulations, Cap 238D declared that crossbows with a draw weight of more than 6 kilograms to be within the definition of arms. 

[6] See §3 of the written grounds of mitigation.

[7] See §4 of the written grounds of mitigation and the defendant’s mitigation letter.

[8] See §§8 & 9 of the written grounds of mitigation.

[9] See §§6, 7, 8 & 12 of the written grounds of mitigation.

[10] See §12 of the written grounds of mitigation.  The offence is an excepted offence for which a suspended sentence cannot be imposed.

[11]  HKSAR v He Honglu DCCC 950/2009; HKSAR v Bar Rotem DCCC 995/2015 and two cases in Chinese DCC 505/2010 and DCCC 709/2014.

[12] See for example HKSAR v Li Hung Kwan [2003] 1 HKLRD 204 at §17.

[13] CAAR 6/2012 (unreported) at §§44 & 45.

[14]  [2012] 3 HKLRD 652 at §38.

[15] Judgment at §35.

[16]  See for example HKSAR v Chu Wai San & others [2008] 4 HKLRD 18 at §214.

[17]  See for example R v Wong Chuen Pong CACC 579/1996; HKSAR v Lau Kwok Hung CACC 551/1998 and HKSAR v Hung Chun Kit CACC 579/1998 together with more recent sentence cases in the District Court for exampleHKSAR v Meng Min DCCC 1023/2009; HKSAR v Tang Yanqing DCCC 1394/2010 and HKSAR v Lam Lai Chiu DCCC 87/2014.

[18] HCCC 30/1995 (unreported) as cited in HKSAR v Lui Fui CACC 237/2007 at §§23 & 27-29.

[19] CACC 224/2014 at §§29-32.

[20] Judgment at §32.

[21] See §§6 & 12 of the written grounds of mitigation.

[22] See §7 of the written grounds of mitigation.

[23] See for example HKSAR v Cheung Suet Ting CACC 226/2009.

[24] See HKSAR v Wong Ka Wah CACC 260/2006.