HKSAR v. PINZON FANDINO EDISON ARLEY

DCCC 1019/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1019 OF 2015

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REASONS FOR SENTENCE

1.  Edison Arley Pinzon Fandino you are a national of Colombia who came to Hong Kong on 31 July last year. You were permitted to stay for three months until 29 October. On 16 September you were arrested for carrying an air gun, which on examination was found to be an imitation firearm. On Wednesday you pleaded guilty to carrying an imitation firearm, with intent to commit an arrestable offence, contrary to section 18(1) of the Firearms and Ammunition Ordinance[1], the maximum sentence for which is life imprisonment. Sentence was adjourned to this afternoon.

2.  Full particulars of the offence are set out in the facts admitted by you on Wednesday. In summary in the early afternoon of 16 September last year the police were carrying out anti-crime patrol on King’s Road in North Point when they saw you leaving a McDonald’s restaurant.  

3.  The police observed that you appeared to be holding something inside your trousers.  Finding your conduct suspicious the police intercepted you.  Upon search the police found a gun in your possession.  Following your arrest you were taken to Chungking Mansions where you had been staying.  During a search of the premises the police found a bottle of plastic pellets and a bottle of gas for use with the gun. 

4.  Subsequent examination of the gun revealed this to be a pressurized gas powered air gun which is commonly available for sale in Hong Kong.  The air gun was designed to discharge 6mm calibre plastic balls with muzzle energy less than two joules.  Photographs of the air gun together with the examination report have been submitted to court.

5.  In a video interview you told the police that you purchased the gun together with the plastic pellets and the bottle of gas from a toy shop on Nathan Road, as a gift for your nephew.  On the day of your arrest you said you went to a park in North Point which two Colombian friends had taken you before.  You only had $600 which was insufficient to return to Colombia therefore you went to the park intending to use the gun to scare people into giving you money.  At the time of your arrest you had not scared anyone or obtained any money. 

Mitigation

6.  In passing sentence I take into account everything said on your behalf by Mr Davies, in particular that you are very young, only 19. You have no criminal record in Hong Kong or Colombia.  This however carries little weight where the offender is a visitor to Hong Kong.  

7.  Mr Davies explains that your father purchased you a one- way ticket to Hong Kong and that when you ran out of money you decided to use the gun to try scare people into giving you money so you could buy an air ticket to return to Colombia. Mr Davies submits this was not well planned and that it is doubtful whether you would have carried out your plan. 

8.  Mr Davies further submits that it is highly unlikely you would have harmed anyone.  That may well be, however, having seen the gun in court on Wednesday there can be no question that the appearance of the gun is very realistic and that anyone confronted with a demand for money would have been very frightened on seeing the gun. 

9.  You are 19.  Section 109A of the Criminal Procedure Ordinance[2], Chapter 221 provides no court shall sentence a person of or over 16 and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  This provision does not apply to carrying an imitation firearm with intent to commit an arrestable offence, which is an excepted offence.  A court must nevertheless still exercise great care before sentencing a young offender. 

10.  There are no guidelines as to sentence.  In my view deterrent sentences are required not only to deter the individual but also to deter those persons like-minded to use firearms, real or imitation, in the course of crime.  In Secretary for Justice v Lee Chun Ho, Jeef[3] the Court of Appeal in emphasising the seriousness of offences involving the use of firearms said:

“It must be recognized that robbery with the use of firearms is particularly hideous because, firstly they cause much greater fear to the victims, and secondly and perhaps more importantly, the use of firearms by the robbers will increase the chance of the law enforcement officers resorting to their own, thus exposing the public to serious risks of death or personal injury.

The fact that the firearm is just an imitation firearm makes little difference as on the spur of the moment; neither the victims nor the law enforcement officers may appreciate that it is an imitation firearm.”

11.  Mr Davies submitting that this is at the lower end of the scale of section 18 offences places reliance on the decision in Attorney General v Lam Wing Kwong[4], where the Court of Appeal declined to interfere with a sentence of 2 years imprisonment.  The facts were that the respondent aged 25 and of a clear record, was the front seat passenger in a car which was slowly driven around the same area of Yaumatei several times.  When the police stopped the car the respondent was found in possession of an imitation pistol which he said was for use in a robbery.   

12.  The Court of Appeal was of the view that a starting point of five to six years would have been correct.  The court went on to say:

“Giving him the benefit of the doubt and assuming a starting point of five years as appropriate, a sentence of two and a half years could not have been challenged on review. Here the sentence imposed by the judge was two years. Without in any way seeking to minimize the seriousness of this offence we feel that some considerable latitude should be given to the trial judge in exercising his judgment in imposing sentence, particularly, as in this case a relatively young person is involved. The difference between two-and-a-half years, a sentence which though on the side of leniency would have been unchallengeable, and one of two years is not such as merits interference by this court. By a fine margin this application for review is refused.”

13.  In HKSAR v Chen Peihong[5], drawn to the attention of the court by Mr Donald, the applicant was arrested when carrying an imitation firearm, a knife and a screwdriver.  The applicant confessed that he had come to Hong Kong from the Mainland the day before intending to commit robbery, although no specific robbery had been planned. 

14.  The trial judge relying on the decision in Attorney General v Lam Wing Kwong adopted a five year starting point.  The Court of Appeal in dismissing the appeal against sentence affirmed that Attorney General v Lam Wing Kwong remained good law in relation to matters of sentence for section 18 offences. 

15.  Having been in Hong Kong for nearly two months it cannot be said you came to Hong Kong to commit crime.  The courts have however said that the commission of crime by visitors is an aggravating feature of sentence.  In HKSAR v Obiagwu Oluchukwu Christian[6] the Court of Appeal said that the commission of robbery by visitors to Hong Kong can be regarded as an aggravating feature.

16.  I am satisfied there is a need to deter tourists who, having come to Hong Kong with insufficient funds or soon after run out of money, think that they can then commit serious crime to obtain money.  In HKSAR v Aguilar Garcia Milner Javier[7] the Court of Appeal said that the sentencing judge was entitled to determine that visitors who come to Hong Kong but run out of funds are to be deterred from resorting to theft to ameliorate their plight.

17.  Taking into account all the circumstances of the case including that the air gun was an imitation gun; no actual robbery had taken place; and that you are a visitor, I am satisfied the proper starting point after trial is 5 years imprisonment.  Giving you full credit for your plea of guilty reduces the sentence to 3 years and 4 months imprisonment.

18.  Mr Davies submits by reason of your very young age I should impose a sentence lower than that imposed in Attorney General v Lam Wing Kwong.  This would mean giving you a discount from the starting point in excess of 60%. 

19.  In Secretary for Justice v Lee Chun Ho, Jeef[8] the Court of Appealreiterated that the one-third discount is usually to be regarded as the high watermark of the discount given to a defendant pleading guilty in good time. 

20.  The courts have accepted that extreme youth is a factor which can reduce sentence. In R v Yau Wing Hong[9], a robbery case, the Court of Appeal said that a person over the age of 15 years is not a person of extreme youth.  The courts have however stressed that there is no inflexible rule in this regard[10]. In R v Lee Kong & another[11], also a robbery case, the Court of Appeal said that the precise age of an offender is not always material and that persons in their late teens should be dealt with differently from those in their early 20's and beyond.

21.  Although you are not of extreme youth having regard to what was said in Attorney General v Lam Wing Kwong that considerable latitude should be given to the trial judge in exercising his judgment in imposing sentence where a relatively young person is involved, I am prepared to extend leniency to you and reduce the sentence by 6 months. 

22.  You are convicted and sentenced to 2 years and 10 months imprisonment.