HKSAR v. LO CHI YUEN

DCCC 363/2020

[2020] HKDC 910

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 363 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleads guilty to one charge of possession of arms and ammunition without a licence, contrary to section 13 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 14 years.

2.  The arms and ammunition in question are one silencer; one lower receiver of a pistol; two self-loading pistols with magazine; one self-loading pistol; one self-loading rifle with magazine; three self-loading rifles and six rounds of ammunition.   

3.  Full particulars of the offence are set out in the amended summary of facts admitted by the defendant today[2].

4.  In summary at 11:09 a.m. on 17 July 2018 a Customs & Excise officer responsible for customs clearance at the Hong Kong International Airport discovered a suspected gun barrel in a carton box which had been imported by mail from the USA to Shop Easy Logistic Ltd, a logistic company in Mongkok.  The contents of the carton box were declared as “wearing apparel/shoes/toys”.

5.  The case was reported to the police.  Preliminary examination by a Forensic Firearm Examiner confirmed the carton box contained a suspected gun barrel.

6.  The same day the police went to the office of Shop Easy.  Record check revealed that the defendant was the consignee of the carton box; that between September 2015 and July 2018 the defendant received various goods declared as car components, tools, books, shoes, toys, lights and lotion and that four parcels declared as car parts and lights were awaiting collection. 

7.  Preliminary examination by a Forensic Firearm Examiner found the four parcels to contain suspected trigger parts, pistol barrel and pistol slide. 

8.  The next day at 1:25 p.m. the defendant attended Shop Easy and collected the four parcels[3].

9.  The police put the defendant under observation.  The defendant took the MTR to his office in San Po Kong where he stayed until 7:20 p.m. when he left to go to the Tuen Mun Hospital by bus still carrying the four parcels. 

10.  After visiting the hospital, the defendant took the light rail to his home in Hung Shui Kiu.  At 9:14 p.m. the police arrested the defendant outside his home and seized the four parcels.   

11.  On a search of the defendant’s home the police found in the defendant’s study room various gun parts and firearm components; a silencer; a lower receiver of a pistol and six rounds of ammunition, which were all stored in password locked boxes. 

12.  Forensic examination confirmed that the various gun parts and firearm components could be assembled into seven genuine firearms: three pistols and four rifles as particularised in the charge, all of which were functional upon test fire.  The cartridge of one pistol and four cartridges of one rifle each contained a bullet.   Mr Chen confirmed in court that these bullets were dummy bullets. 

13.  Five of the six rounds of ammunition were live bullets suitable for discharge from firearms such as AR-10 and AR-15 rifles.  The sixth round of ammunition was a blank.  Mr Chen confirmed in court that all six rounds of ammunition were not suitable for discharge from any of the seven firearms subject of the charge.

14.  The Forensic Firearms Examiner’s report has been submitted to court together with photographs of all the arms and ammunition seized[4]. 

15.  In video recorded interviews, the defendant said, inter alia, that he was a war game enthusiast; he kept the guns for around four years for personal collection purposes; he had no firearm licence in Hong Kong only in Thailand where he had received training; he bought the various parts and components from various US websites and had them delivered to an address in the US provided by Shop Easy who would then mail them to Hong Kong; the items were declared as “DIY tools” for customs clearance purposes; the firearms, ammunition and components were stored in password-locked boxes inside his bedroom and he was the only one who knew the passwords; he used dummy bullets to test whether his guns could fire; he never used genuine bullets or ammunition and that he picked up bullets and cartridge cases while hiking near a training range at Ha Pak Nai.

16.  On 1 August 2018 Shop Easy received seven more parcels declared as lotion, toy or car parts.  On 14 August 2018 Shop Easy received a further four parcels declared as car parts.  The police seized the parcels and unpacked them in the presence of the defendant.  All the parcels contained suspected gun parts. 

17.  Except for the silencer and the lower receiver of a pistol, the charge relates only to the gun parts and firearm components which were found in the defendant’s study room and could be assembled into genuine firearms.  The remaining gun parts and firearm components including the suspected gun barrel found in the carton box on 17 July 2018; the suspected gun parts found in the four parcels collected by the defendant on 18 July 2018 and the gun parts in the parcels seized by the police on 1 August and 14 August 2018 are not the subject of the charge.   

Mitigation

18.  In passing sentence, I have carefully considered the oral and written submissions of Mr Fu, including that the defendant, aged 42, is married with two twin boys, aged 9 and has worked for Forever Health Medical Instrument Limited since 2000[5]. 

19.  I have read the mitigation letter written by the defendant’s wife who describes her husband as a kind hearted and reliable person and how he helps the patients he meets through his work[6].

20.  Mr Fu has summarised the letters written by the two boys who ask for a lenient sentence for their father[7].

21.  Mr Fu has also summarised the mitigation letter written by the defendant’s mother in which she asks for a lenient sentence[8]. Medical reports of the defendant’s mother have also been submitted[9]. 

22.  I have read the mitigation letter written by Mr Nelson Wong, the Executive Director of Forever Health Medical Instrument Limited.  Mr Wong describes how the defendant first started working for the company as a fresh graduate to how he has become a very important member who has contributed to the growth of the company and is now the team leader of the Respiratory Unit.  Mr Wong regards the defendant as someone who cannot be replaced. 

23.  Mr Wong is particularly impressed with the way the defendant cares for patients with disabilities and how he has given up his own free time to visit children, who can only breath through the help of a ventilator, to observe how they use the ventilators and to help their parents.

24.  Mr Wong regards the defendant very highly indeed and looks forward to the day he will once again be representing his company.    In the meantime Mr Wong promises not only to reserve the defendant’s position in the company but also to maintain all his benefits until he returns to work[10].  

25.  I also take into account the thank you cards from the Tuen Mun Hospital; a customer of the company and the Jockey Club New Page Inn, all showing their appreciation of the defendant’s work[11]. Mr Fu has also summarised the letters written by friends and colleagues, all asking for a lenient sentence[12].

26.  Mr Fu explains that the defendant is a war game enthusiast who purchased the firearms on the internet for his own appreciation and enjoyment; the defendant had received training in the use of firearms in Thailand where he had obtained a firearm licence and that the defendant had never used the firearms[13]. 

27.  I have read the defendant’s mitigation letter in which he explains that since his first contact with firearms shooting in Thailand in 2016 he has participated in various competitions and technical exchanges during which he has met many law enforcement officers and members of the army.  Using his knowledge of mechanical operations, he obtained various gun parts for research purposes to help his friends from local law enforcement agencies in Thailand solve their technical questions[14]. The defendant asks for a light sentence so he may continue to serve chronically ill patients and take care of his family. 

28.  I take into account that the defendant has no previous convictions. 

Discussion

29.  Mr Fu has referred the court to a number of authorities and  sentencing cases in the District Court and submits that the starting point to be adopted is likely to be 40 months imprisonment[15].  I have considered the cases submitted by Mr Fu. 

30.  What is clear is that deterrent sentences are required[16].

31.  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[17].  

32.  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[18].

33.  A review of the case law shows that a distinction has been drawn between cases where there was an intention to use the firearm for unlawful purpose and cases of “simple possession” where there was no such intention.  

34.  Mr Fu refers the court to the judgment in HKSAR v Chan Chi Fun where the court emphasised that the level of sentence depends on the court’s assessment of the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances and the defendant’s background[19].

35.  This distinction was the subject of discussion in the recent judgment of the Court of Appeal in HKSAR v Tsiang On Yan[20]. After reviewing the authorities for possession of a firearm and ammunition without a licence the Court of Appeal concluded that it was clear that for a person in possession of a firearm with loaded ammunition or a firearm with ammunition capable of immediate use, a starting point of 12 years’ imprisonment would be appropriate[21].

36.  The court referring to HKSAR v Chan Chi Fun noted that an allegation that a defendant used or intended to use a firearm for an illegal purpose, may lead the defendant to being charged with a more serious offence[22].  The court went on to say that the guideline of 12 years’ imprisonment was where the offender is in possession of a firearm together with ammunition which is “but a step away from its use” [23].

37.  I accept the submission that the defendant only possessed the firearms for his own appreciation and that he had never used them.  I accept by reason of the fact all the firearms were in password locked boxes that the potential risk the arms would be used for illegal purpose was low. 

38.  The photographs submitted to court show that the defendant’s office was also searched[24]. The search of the defendant’s office is not included in the amended summary of facts.  On the court asking what was shown in photographs 7 and 8, Book 3, Mr Chen replied magazines.  Asked why this was not included in the summary of facts Mr Chen replied “We just missed it”.  Mr Chen also mentioned the magazines had not been examined. 

39.  In my view the fact gun parts were found in the defendant’s office is an important fact in determining the potential risk posed by the defendant’s possession of the firearms.  The explanation for the omission of this fact from the summary of facts, “We just missed it” is unsatisfactory, in particular considering the prosecution were given the opportunity to revise the summary of facts the court not being satisfied the summary of facts were sufficiently clear and precise as they should have been in order to explain the plea of guilty and to assist the court.  

40.  The consequence of this failure is that the court must, as submitted by Mr Fu, disregard this fact there being no mention made of this in the amended summary of facts.  I do note, however, that on the day of arrest the defendant transported gun parts by public transport to and from his office. 

41.  In Secretary for Justice v Leung Kwok Chi the Court of Appeal said that possession as a hobby with no risks of the firearms or ammunitions being used for any illegal purpose or posing any threat to the public would bring the case to the lower end of the scale and that where the arms and ammunition had not been used and were not intended to be used by the offender for any crime, a starting point as high as 6 years was appropriate, depending on the nature of the arms and ammunition and the circumstances in which the offence was committed[25].

42.  In determining the appropriate starting point I have looked at cases where the firearms and ammunition were found in the residence of the defendant. 

43.  In R v Szeto Chi Keung the applicant possessed five anti-riot pistols of Chinese origin and twenty-five shot cartridges suitable to be used with the pistols[26].  The pistols, which were not kept in a secure way, were found in different places in the applicant’s home.  It was accepted that the pistols were not intended to be used in any criminal enterprise.  The Court of Appeal were satisfied that there was an extreme risk for the community and held that a 7 year starting point was appropriate. 

44.  In HKSAR v Chan Chi Fun firearms were found in the applicant’s home[27].  Some of the firearms were stored in safe places such as a safety box, some were dismantled; none had been loaded and none had been used.  By handling the firearms properly and carefully the applicant had substantially reduced the potential risk posed by the firearms.  The Court of Appeal held that the appropriate starting point was 6 years’ imprisonment.  

45.  In Secretary for Justice v Leung Kwok Chi the police attended the respondent’s flat in response to a 999 call, the respondent claiming he had accidentally shot himself.  The police found a “Thompson Contender” 0.22 calibre rifle on the floor of the flat with a fired cartridge case jammed in the chamber. 

46.  At the time the respondent was holding an Arms and Ammunition Licence under which he was permitted to have specified items of arms and ammunition, including the “Thompson Contender” 0.22 calibre rifle, stored in his flat and at the Hong Kong Rifle Association. 

47.  In addition, the police found arms and ammunition not covered under the licence, including a “Thompson Contender” firearm; eight silencers; two revolvers; three air guns; one flare pistol and over 3,000 rounds of ammunition. 

48.  The arms and ammunition were placed all over the flat, the safe in the flat not being large enough to store all the unlicensed firearms and ammunition.  The safe had been left open on the day the police attended the flat. 

49.  The Court of Appeal accepted that when the offender was licensed to possess arms and ammunition which were kept in a safe place, but because the quantities of arms and ammunition exceeded the permission an offence was committed, it might well justify a more lenient sentence as the offender would be in a better position to properly keep the arms and ammunition as a licensed person, and the chance of them falling into the wrong hands would be less. 

50.  The court did not however agree that just because the arms and ammunition were stored in the flat, the public could not have access to them, citing that the flat was accessible to friends and relatives who might find the arms and ammunition attractive and a trespasser, such as a burglar, would also find the arms and ammunition in the flat very tempting.

51.  The court was satisfied that there was a serious potential risk to the surrounding community held that a starting point of at least 5 years’ imprisonment was appropriate[28] .

Sentence

52.  Mr Chen having confirmed that the bullets were not suitable for discharge by any of the firearms subject of the charge and having viewed the bullets, I accept the submission that the bullets were picked up[29].

53.  Taking into account all the circumstances including that the defendant did not have just one firearm, he had seven, three pistols and four rifles together with a silencer and a lower receiver of a pistol, all of which were functional upon test fire; the defendant did not have a licence in Hong Kong; the defendant clearly knew that a licence was required as shown by the way in which he imported the firearms in parts variously declared as car parts, toys and shoes; the amount of ammunition was very small and not suitable for discharge in the firearms subject of the charge; and although the firearms and ammunition were contained in password locked boxes I note on the day of arrest the defendant transported gun parts by public transport to and from his office, I am satisfied a starting point of 5 years’ imprisonment is appropriate. 

54.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 years and 4 months’ imprisonment.

Delay

55.  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[30].

56.  The defendant was arrested on 18 July 2018 and first appeared in court on 9 January 2020, almost eighteen months later.  Mr Chen informs the court the case file was sent for legal advice on 21 August 2019.  The investigation therefore took thirteen months to complete.  Mr Chen explains this was due to the large number of exhibits seized. 

57.  Clearly time was required to complete the investigation.  Eighteen months does appear however to be a long time.  The matter has now been hanging over the defendant for just over two years.  I am satisfied this is a factor which I can take into account in passing sentence and reduce the sentence by 2 months to 3 years and 2 months’ imprisonment[31].   

58.  The defendant is convicted and sentenced to 3 years and 2 months’ imprisonment.