HKSAR v. CHAN KIN TAT

DCCC 1077/2020

[2021] HKDC 739

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1077 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to a charge of "Possession of arms and ammunition without a licence" (Charge 1); a charge of "Possession of explosive substances" (Charge 2); and a charge of "Possession of a prohibited weapon" (Charge 3).

Summary of Facts

2.  On 24 January 2020, police officers searched the defendant's home in Jordon, Kowloon (the address of which is particularized in the charges) pursuant to a search warrant.

3.  A violin case was found in the defendant's bedroom. It contained an assortment of items including :-

In relation to Charge 1

(i)  1 NICO brand flare launcher with 2 loaders, each loaded with 6 rounds of flare ammunition;

(ii)  1 ERMA brand flare launcher; and

(iii)  26 rounds of flare ammunition (for the ERMA flare launcher);

In relation to Charge 2

3 explosive cartridges (commonly known as "Boulder Buster Rimfire").

4.  A "push dagger" was found in a plastic bag containing various types of knives placed on top of a bookshelf in the reading room.  This is Charge 3. 

5.  Under caution, the defendant stated, inter alia, that he is a retired technician.  He bought the seized items when he was serving in the Royal Hong Kong Regiment (The Volunteers).

6.  A Bomb Disposal Officer of the Police Force examined the seized items in relation to Charges 1 and 2.  He confirmed that both the NICO and ERMA flare launchers are "arms" under the Firearms and Ammunition Ordinance (Cap.238) and the total of 38 flare rounds are "ammunition" under Cap.238.  He also confirmed that the 3 explosive cartridges are manufactured for breaking/demolishing rocks, boulders, concrete structures and mining.  They are intact, live/active and have never been used.  They are "explosive substances" under section 52 of the Crimes Ordinance (Cap.200).

7.  A police weapons training specialist examined the push dagger and confirmed that it is a prohibited weapon.  It is "a blade or pointed weapon designed to be used in a fashion whereby the handle is held in a clenched fist and the blade or point protrudes between the fingers of the fist".  The push dagger has a sharp pointy blade (40 mm in length) with a "T" shape handle.

8.  Regarding Charges 1 and 2, the Marine Department confirmed that a vessel operator certificate does not enable the holder to possess any signal flare or launcher; or in any event possess them on land.  The Mines Division of the Civil Engineering and Development Department confirmed that the defendant has never held any licence for lawful possession of any of the arms, ammunition or explosive substances found in his residence; and that his residence was not a licensed premises for storage of such items.

9.  The defendant had unlawfully in his possession or custody or under his control of the arms, ammunition, explosive substances and prohibited weapon particularized in Charges 1 to 3.

Mitigation & Sentence

10.  The defendant is 73 and has a clear record. He is married with 3 middle-aged children. He and his wife have been living in the same flat in Jordan since 1976. It is a self-owned property.

11.  In mitigation, defence counsel Ms. Tsang outlined the defendant's personal background. He worked in a printer manufacturing company from the 80s to the 90s, and retired in 1997. He served in the Royal Hong Kong Regiment (The Volunteers) from 1978 to 1995. He held a Certificate of Competency (Engineer) Hong Kong issued by the Marine Department under the Merchant Shipping Ordinance (Cap.281) from 1973 to the 90s. He was qualified to maintain the engines of pleasure vessels. In a nutshell, the defendant has been an upstanding citizen for his entire life.

12.  Regarding Charge 1, Ms. Tsang submitted that the defendant had lawful possession of the 2 flare launchers and 38 flare rounds when he and a friend co-owned a yacht in the early 80s. Possession of those items were lawful then, if kept on a vessel. When the yacht was sold in the 90s, the defendant had to clean up the boat; he mindlessly brought those items home in a plastic bag[1]. Ms. Tsang explained that the bag of flare launchers and flare rounds has been buried in the defendant's junk at home all these years. The defendant has completely overlooked their existence until they were dug out by the Police.

13.  Regarding Charge 2, Ms. Tsang submitted that the 3 rock blasting cartridges were also kept on the defendant's yacht. They were meant to be used on a line throwing apparatus for propelling a line across to shore or another vessel for mooring, towing or rescue purposes. Similarly, the defendant took them home when he cleaned up his yacht. They were stashed away amongst the defendant's junk for decades.

14.  Regarding Charge 3, Ms. Tsang submitted that the push dagger was purchased by the defendant as a souvenir when he was travelling with his wife in Germany. It has been kept in a recycle bag placed safely on top of a bookshelf in the reading room of the defendant's flat[2]. He has never used push dagger or taken it out of his home.

15.  I accept that the defendant had lawful possession of the flare launchers and flare rounds when they were kept on his yacht. In respect of the 3 cartridges, the prosecution took issue with Ms. Tsang's submission. Upon clarification by the prosecution, the Bomb Disposal Officer maintained that they were manufactured for rock blasting purposes and would not be used on a line throwing apparatus. In my view, if the defendant's assertion about the history of these 3 cartridges is true, one would expect a line throwing apparatus be found in his home as well. In the absence of such a device, I have no basis to doubt the Bomb Disposal Officer's opinion.

16.  I have asked Ms. Tsang if it was appropriate for her to explain why the defendant's home was searched. She respectfully invited this court to focus on the reasons why the defendant possessed the items in question rather than why his flat was searched. I agree. I will not speculate on this matter or draw any adverse inference against him because his flat was searched. I have reminded myself that the defendant is a man of good character and has made meaningful contribution to the security and safety of Hong Kong. I am also aware that he was kept in jail custody from the day of his arrest on 24 January 2020 to 17 June 2020, when bail was granted.

17.  In relation to Charges 1 and 2, I have borne in mind the sentencing principles laid down by the Court of Appeal in HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 (Chinese judgment). Having considered the overall circumstances of this case and the defendant's impeccable background, I find the potential risk posed by the flare launchers and flare rounds fairly low. Based on common sense, they are not as lethal as real pistols and bullets. I also accept that the defendant had no intention to use them; they were just sitting idle at a corner in his home and being neglected.

18.  On the other hand, the 3 cartridges cause me some concern. I do not know why the defendant claimed that they were to be used on a line throwing device. In any event, based on the Summary of Facts[3] and the additional expert report of the Bomb Disposal Officer[4], a cartridge is just a part of a rock blasting equipment set; it is difficult to create an explosion by using a cartridge alone. On this basis, I consider the potential risk posed by these 3 cartridges also fairly low. Similar to the flare launchers and flare rounds, they were just sitting idle at a corner in the defendant's home. He had no intention to use them either.

19.  Notwithstanding the lack of evidence suggesting any connection of these items with criminal or unlawful activities, mere possession of arms, ammunition and explosives are nevertheless serious matters. An immediate custodial sentence is almost inevitable. The court must send a clear message to the general public that they should stay away from these objects.

20.  For Charge 1, the maximum penalty is a level 6 fine ($100,000) and imprisonment for 14 years; and for Charge 2, imprisonment for 14 years. Based on the reasons stated above, I adopt a starting point of 12 months' imprisonment for each charge. With the timely guilty plea, the sentence is reduced to 8 months each. I will grant a further discount of 1 month to reflect the defendant's age and service to the community. I sentence him to 7 months' imprisonment for each charge.

21.  In Charge 3, the push dagger was stashed away on top of a bookshelf. The defendant obviously has a collection of utility knives, probably owing to his paramilitary background. I accept that the push dagger is no more than a collector's item and that the defendant had no intention to use it. The maximum penalty for this offence is a level 3 fine ($10,000) and imprisonment for 3 years. I will impose a fine of $6,000[5].

22.  Taking into account of the totality principle, I order the sentences of Charges 1 and 2 to run concurrently, arriving a total prison term of 7 months.