CRIMINAL CASE NO. 94 OF 2010
COURT: The defendant 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 maximumumpenalty for that offence is 14 years’ imprisonment.
On 18 November 2009, the police carried out an operation at the Casa Hotel in Mongkok specifically directed at the occupant of Room 1009, who was the defendant. A room had been reserved for him there for four days from 14 to 18 November 2009.
The police saw him leave the room and go to the lobby, where they intercepted him. A search on him revealed nothing, and he was taken back to his room, where a search warrant was executed. In the bottom of the wardrobe was a black handbag containing a small black packet. The packet contained a plastic bag containing a silver-coloured pistol about 6 inches long and a magazine which held three bullets. The hammer was not cocked, but the magazine in the pistol was loaded with three rounds of ammunition.
The particulars describe the arms and ammunition as a homemade self-loading pistol and three rounds of 7.62 x 17 mm ammunition. The Forensic Firearms Examiner examined the gun and made a report about it. It was described as a homemade, self-loading pistol capable of chambering 7.62 x 17 mm type 64 calibre ammunition for discharge, and traces of firing were not observed in the barrel of the pistol.
The pistol fell within the legal meaning of “firearm” in the Firearms and Ammunition Ordinance. The magazine was capable of storing ammunition in 7.62 x 17 mm type 64 calibre for discharge in the seized pistol. A test firing of the pistol was successful. Two rounds were used in those tests. The ammunition fell within the legal meaning of “ammunition” in the Firearms and Ammunition Ordinance.
When arrested and cautioned, the defendant, a mainlander, said that it was a fellow countryman, “Ah Zhou”, who asked him to go down to Hong Kong to carry something. “He said he would give me $8,000. I only knew it was a pistol afterwards.”
Later, in a Video Interview, he explained how he had come to Hong Kong at the request of Ah Zhou to help him collect something, although it was not specified what that was. He said he was in Hong Kong en route to Cambodia, where he intended to find construction work. Zhou had given him the money to pay for a hotel room in Hong Kong, and they were to meet before the defendant travelled on to Cambodia. One or two days before coming to Hong Kong, Zhou had mentioned giving him $8,000 for his help in bringing something for Zhou.
In Hong Kong, he had been contacted by a man called Li, claiming to be a friend of Zhou, on 17 November 2009. The defendant arranged to meet him in a nearby park, and received from him the small black bag. He was told to take it straight back to the hotel, and did so. He put the black bag into his own travel bag in the hotel room. He said that at about 3.30 pm on 18 November 2009 he had opened the small black bag and found the pistol inside. He was on his way to telephone a fellow countryman to talk about how best to handle the matter when he was arrested.
On 19 November 2009 he voluntarily took the police to the Yau Ma Tei Community Centre Rest Garden near Temple Street, and said that that was where Li had handed him the small black bag.
The accused admitted and accepted that he was in possession of the homemade self-loading pistol and the ammunition without a licence on 18 November 2009.
The accused, who is a resident of the mainland, has no record in Hong Kong. He is aged 44. He is married, with a wife and child, and also has an adopted daughter whom he adopted before his marriage.
In mitigation I was advised that Zhou had asked him to collect the package. The 8,000 was to be deducted from the $20,000 introduction fee that had been exacted for the job in Cambodia.
The major mitigation in this case is the defendant’s plea of guilty.
In considering sentence, I note that the circumstances in which the gun was brought into Hong Kong indicate that the firearm was probably brought in to be used in a crime, or crimes, to be committed by a person or persons for whom it was being carried.
The defendant claims he did not know what he was carrying initially, although it seems highly unlikely that he would have been entrusted with the care of a gun and ammunition and not told what he was carrying. In those circumstances, the organisers risked his finding the weapon and reporting to police, or risked his panicking and dumping a wanted weapon, a weapon which had been ordered perhaps by a customer or end user, and which would be difficult to bring into Hong Kong. To leave the gun in the possession of the defendant without telling him what he carried risked the defendant entering a deal for the sale of the weapon on his own behalf.
I note that the gun is described as a homemade weapon by the Forensic Examiner. I note too that when test fired twice, it did not fall to pieces, and presumably could have been used again. I accept that there were no signs of it having been fired, and I note from the Forensic Firearms Examiner’s report that the gun did not show up on the Forensic Firearms Examination Bureau Outstanding Crime Index.
I have considered a number of cases dealing with firearms and ammunition, all of which make it clear that Hong Kong has a “zero tolerance”attitude to firearms, and for that reason there is a heavy element of general deterrence in sentences for such offences.
This may not be the worst case of its type, but any sentence must take into account that this was a gun imported for what could only be a criminal purpose, a purpose that was thwarted, or delayed, by the police intercepting the defendant.
The basic guideline fixed from the time of R V. Ho Chun (1992) 1 HKCLR refers to an 8 year sentence after plea. However, as explained in Ng Chun Keung CACC262/1992, the 8 years referred to in Ho Chun refer only to cases involving unloaded firearms. Possession of a loaded firearm would attract a heavier sentence. Possession of an unloaded firearm together with ammunition would call for a more severe sentence than the possession of an unloaded firearm alone.
I note also that this gun was not kept in any safe place. It was accessible to hotel staff and visitors to the room.
In considering sentence, I take a starting point of 13 years. I give the defendant full discount for his plea of guilty.
With a one-third discount, the sentence is 8 years and 8 months, and that is the sentence I impose.