HKSAR v. CHAN LAP MING CASTOR

CACC 32/2022, [2023] HKCA 1125

On Appeal from [2022] HKCFI 595

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 32 OF 2022

(ON APPEAL FROM HCCC NO 142 OF 2021)

________________________

________________________

__________________________________

REASONS FOR JUDGMENT

__________________________________

Hon Macrae Acting CJHC and Zervos JA (giving the Reasons for Judgment of the Court):

1.  With leave granted by the Single Judge[1] on 18 January 2023, the appellant appeals against the sentence of 8 years’ imprisonment imposed on him by D’Almada Remedios J (“the judge”) on 31 January 2022 in respect of a single count of possession of arms and ammunition, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (“FAO”). The particulars of the offence averred that the appellant had in his possession a pistol, 390 rounds of ammunition in 9 x 19 mm calibre and 4 magazines, without a licence.

The agreed facts

2.  At the material time, the appellant lived with his parents on the ground floor of a small house in Hung Shui Kiu, in the New Territories. On 9 June 2020, at 8:50 am, he was intercepted by police officers at his home. He was searched and the police found on him three mobile telephones, two Octopus cards and $2,260 in cash. A subsequent search of his bedroom revealed that he had a safe with a broken combination lock, which was eventually opened with a key found in the drawer near a computer desk. The items that were later discovered from the safe, inside the drawer and on the computer desk were respectively listed out in paragraphs 3, 4 and 5 of the Summary of Facts and duly accepted by the appellant when he pleaded guilty to the offence. It is worth quoting those paragraphs in full below[2]:

“3. Inside the safe the following items were found:

(1) One pistol (‘E1’) with a target pointer. E1 was designed to discharge ammunition in 9x19 mm caliber. The pistol was functional and was capable of discharging ammunition in 9x19 caliber.

(2) 9 boxes containing a total of 390 rounds of ammunition in 9x19 mm caliber (‘E3’). The ammunition was suitable to be discharged in like caliber firearms such as E1.

(3) 4 magazines (‘E2’) which were designed to store ammunition in 9x19mm caliber. The magazines were suitable to be used in E1.

4. Inside the drawer where the key were seized, the following items were found:-

(1) A baton with cover and receipt;

(2) Two red boxes each containing a pistol stand;

(3) One ‘ZEV Technologies’ magazine plate with springs;

(4) One ‘Talon Grips’ for pistol;

(5) Two ‘MAGPUL’ magazine plates;

(6) One ‘G.O.T’ Glock Operator’s tool;

(7) A set of ‘Tacrack’ parts;

(8) One black box containing 40 orange plastic bullets;

(9) A bottle of “Mag and Aluminium” polish;

(10) Two receipts for ‘ZEV Extended Mag Release LRG BLK Gen 3’, ‘TALON Grips for Glock Gen 1-3 Rubber Adhesive Grip’ and ‘Glock Bullet Slide Release’, issued by ‘Texas Shooter’s Supply’ to ‘Alvin IP GPSSHK’ dated 11 April 2020;

(11) One brown envelope of ‘TALON Grips’;

(12) One receipt issued by ‘TALON Grips’ to ‘Kelvyn Sato GPSSHK’ dated 1 May 2020;

(13) A flyer of ‘Sportsman’s Den’ where guns and ammunition were available for purchase;

(14) The packaging materials for the following items:

(i). ‘TRUGLO’ sight set;

(ii). ‘Brownells Barrel’ ‘Glock 19 Gen 1-5’;

(iii). ‘Brownells Barrel’ ‘RMR Cover Plate’;

(iv). ‘Brownells Barrel’ ‘RMR Sight Cut’;

(v). ‘Brownells’ ‘Glock Firing Pin Channel
        Liner’;

(vi). ‘Brownells’ ‘Glock Spring Cup’;

(vii). ‘Brownells’ ‘Glock EXTR DEP
         PLUNGER SPRING’;

(viii). ‘Brownells’ ‘Glock EXTR DEP
          PLUNGER’;

(ix). ‘Brownells’ ‘Glock Slide cover plate’;

(x). ‘Brownells’ ‘Glock Extractor’;

(xi). ‘Brownells’ ‘Glock Firing Pin Spacer
        Sleeves’;

(xii). ‘Brownells’ ‘Glock Firing Pin Safety
         with Spring’;

(xiii). ‘Brownells’ ‘Glock Spring Loaded
          Bearing’;

(xiv). ‘Brownells’ ‘Glock Firing Pins’;

(xv). ‘Brownells’ ‘Glock Recoil Springs’;

(xvi). ‘MAGPUL’ ‘PMAG 17 GL9’ (15 and
          17 round capacity).

5. On the computer desk, the following items were found:-

(1) One certificate issued by ‘Double Tap’, a shooting club, to D;

(2) A book of ‘Build Your Own Semi-Auto Handgun’;

(3) A packaging box of ‘Steel Talon’; and

(4) Two laptop computers.”

The mitigation

3.  At the hearing of the plea and sentence on 6 December 2021, a mitigation submission was filed on behalf of the appellant by leading counsel. It was stated that the appellant was single and aged 39, worked as a bank manager and did not have any previous conviction[3]. It was also submitted that the appellant committed the offence due to his obsession with collecting firearms and ammunition[4]; he had no illegal intent to use them; and they were “properly and safely stored in the locked safe in his own bedroom and there was little, or no chance, of them falling into the wrong hands”[5]. Various authorities were cited to substantiate the appellant’s contention that he should be sentenced at the lower end of the sentencing scale.

The first hearing

4.  At the hearing, the judge considered it appropriate to seek clarification from the parties of several matters arising from the Summary of Facts.

5.  First, the judge was concerned with the relevance of certain aspects of paragraphs 4[6] and 5[7] of the Summary of Facts. In particular, she queried whether the item in paragraph 4(2) “would have contained another pistol?”[8]. She also required that further information, including photographs and descriptions, on the items referred to in those paragraphs be furnished by the parties. Secondly, it was accepted by the prosecution that the pistol had not been fired, and the ammunition had been kept in its original packaging[9]. Thirdly, the judge questioned how and from where the appellant obtained the pistol[10]. Fourthly, she wished to know how long the appellant was said to have been a gun enthusiast and whether he was a member of any gun club[11].

6.  Accordingly, the judge gave directions on the filing of supplemental material and adjourned the hearing to 31 January 2022.

The additional material from the prosecution

7.  On 29 December 2021, the prosecution filed with the court a photograph album and an “expert report” to supplement the Summary of Facts[12]. The album consisted of 32 photographs[13], with one photograph of each item in paragraph 4 of the Summary of Facts. As to the “expert report”, it was in fact a short explanatory note said to be prepared by a Chief Inspector of the Police Forensic Firearms Examination Division and reviewed by a Firearm Examiner, bearing both of their signatures.

8.  In respect of paragraph 4(2), (3), (5), (7) and (8) of the Summary of Facts, it was stated in the explanatory note that:

(a)  The “two red boxes each containing a pistol stand” were a pistol frame kit set, with the following observations:

“(1) A pistol frame is the basic unit of a firearm which houses the firing and breech mechanism and to which the barrel and grips are attached.

(2) The kit set consists of:

i. A plastic frame;

ii. Four pieces of metal parts, to be installed on the plastic frame in 2(1);

iii. A drill jig;

iv. A set of drill bits.”[14]

(b)  The “ZEV Technologies magazine plate with springs” was a set of base pad extension for a magazine (that is, a container for ammunition which has a spring and follower to feed ammunition)[15].

(c)  The two “MAGPUL magazine plates” were a set of base pad extension for a magazine[16].

(d)  The “Tacrack parts” were a back plate for a pistol slide[17].

(e)  The “40 orange plastic bullets” were dummy ammunition[18].

9.  On 21 January 2022, the defence filed a mitigation bundle[19] consisting of a supplemental mitigation submission, a table showing the descriptions of the items in paragraphs 4 and 5 of the Summary of Facts, a copy of the “Build Your Own Semi-Auto Handgun” as well as a “Glock parts diagram”.

10.  It was stated in the supplemental mitigation submission that the appellant had bought the gun parts separately and then assembled his own gun[20]; that those gun parts were not purchased until some 2 to 3 months before the offence[21]; and that the appellant completed an Airsoft Practical Shooting Course on 21 May 2020[22]. It was also submitted that he had become interested in air pistols since he was at primary school or 7 to 8 years old[23].

The second hearing

11.  Upon further clarification by the prosecution at the hearing on 31 January 2022, the judge acknowledged that the relevant items in paragraphs 4 and 5 of the Summary of Facts, in particular the two pistol frames, would not be sufficient to assemble or build another gun. The following exchanges then took place between the judge and prosecuting counsel[24]:

“COURT: So, with these two pistol frames, if one had sufficient parts, one could build or assemble another two more guns, pistols?

MR NGAI: Yes, this is a part of -- a part for which people can just -- can assemble a pistol.

COURT: A real pistol, a genuine pistol.

MR NGAI: Yes, correct.

COURT: Why is that not said in this report? This report is really very thin on information.

MR NGAI: As said in the report prepared by Mr Lam, CIP, the first page, the item 1, it was said to be a basic unit of a firearm which houses the firing and breech mechanism, and that’s why the conclusion is this can be used for building a pistol. It is part of ...

COURT: Part of building a pistol.

MR NGAI: That’s correct.

COURT: And so there’s two parts of building a pistol. There’s ...

MR NGAI: Yes.

COURT: ... two.

MR NGAI: There are two pistol frame by which...

COURT: Right.

MR NGAI: ... if more parts can be available, people can build ...

COURT: Can’t hear you, sorry.

MR NGAI: It is two parts of a pistol. With more parts for such, then a person can build a pistol by ...

COURT: Right.

MR NGAI: ... these two pieces of item.

COURT: And I just go back to my earlier question. Is this pistol frame similar to or exactly the same as the pistol in the charge?

MR NGAI: Yes, it is.

COURT: Exactly the same.

MR NGAI: It can be said to be similar item.

COURT: Similar.

MR NGAI: Yes, similar.

COURT: Okay. Next question is, the other items found in the house, in his bedroom, the other, are they parts to this pistol or not? So, in other words, what I’m asking you, Mr Ngai, is if what was found, ie these two pistol frames and the other items you mentioned, if they were to be assembled, can it be another firearm? This is what I’ve been asking you.

MR NGAI: My Lady, I can reply in this way. All the items found in the house - that is the parts in paragraph 4 and -- in the Summary of Facts - they can -- they are parts by which people can build a pistol or they are packaging of such parts. However, as we have consulted the expert, Mr Lam, CIP, his opinion is he cannot confirm whether such parts can build a pistol exactly with these parts.

COURT: I’m sorry, I can’t hear. ‘He cannot confirm if’?

MR NGAI: He cannot confirm conclusively all these parts can assemble a pistol. He cannot confirm.”

12.  Immediately afterwards, the judge delved into the possibility of extending the scope of the present charge to cover his possession of the uncharged articles. The following exchanges ensued[25]:

“COURT: Now, can you answer me this, Mr Ngai? Is there a -- is there legislation which it directs towards this type of possession of this type of thing? Is there legislation concerning this, parts of a firearm?

MR NGAI: The turning point is 2021. Before 2021...

COURT: Sorry? ‘Turning point was 2021’.

MR NGAI: Before 2021, there is no regulation about these parts, but after 2021 there has been an amendment and there would be laws regulating such possession, but in this case at that time there is none.

COURT: So is what you are telling me that after 2020 -- is the law enforced?

MR NGAI: This law has been enforced now, after 2021.

COURT: And does it say what parts of a gun are -- is it says if you are in possession of these parts of a gun, it’s illegal, it’s an offence? What does it say?

MR NGAI: At the time of the offence, there is no regulation...

COURT: No, I’m not saying at the time. I’m saying now.

MR NGAI: Yes, the relevant law is Cap 238D[26], D for ‘David’, which is now enforced, and ...

COURT: Which is now what?

MR NGAI: Enforced, enforcing.

COURT: And what does it say?

MR NGAI: The laws governs the possession of these firearm parts, including those mentioned in this case, like the -- including the frame for the firearms and body and the block for such...

COURT: Sorry, including the frame of the firearm?

MR NGAI: Yes, the frame -- including the frame of a firearms, and...

COURT: So the frame being this part, the kit, as you show me here, Mr Ngai?

MR NGAI: I beg your pardon.

COURT: So this, number -- photo 2, this one?

MR NGAI: This is inside the framework for the...

COURT: Would that be -- inside the framework of the...

MR NGAI: Yes, that’s right.

COURT: ...of the new legislation.

MR NGAI: Yes.”

13.  Whilst accepting that the additional pistol frames, if assembled with other proper parts, could “potentially” form a further gun or further guns[27], defence counsel argued that such potential use was, however, contrary to the appellant’s intended use of them as spare parts for the pistol. He submitted[28]:

“[T]hey were to be used for spare parts if and so required for the real gun. He would have taken it from the two replica parts and put it into the new gun if so required. It wasn’t to be used for a second or a third gun.”

The sentencing

14.  In passing sentence, the judge relied substantially on the judgment of this Court in HKSAR v Tsiang On Yan[29], from which she extensively quoted, noting that[30]:

“At paragraphs 43, 44, 45, 48, 51 and 52 the court referred to a starting point of 12 years’ imprisonment as an appropriate starting point for this offence.”

The judge went on to state that[31]:

“It is, therefore, in a charge like this that a defendant is expected to receive a sentence of 12 years’ imprisonment…”

15.  Whilst the judge did not reject the general allegation that the appellant was enthusiastic about guns, she rejected the specific allegation that he had been a gun enthusiast from an early age[32]. The judge said[33]:

“I can see no evidence suggesting of the defendant’s interest in guns or being an enthusiast from an early age. There are no air pistol magazines found by the police and no air pistols found or seized. Everything that was seized in relation to guns was stated in the Summary of Facts, at paragraphs 3, 4 and 5. The receipts were dated April or May 2020. If what the mother suggests that the defendant was a gun enthusiast since the age of seven, his interest, as I can see, if any, did not manifest itself until sometime late in May 2020.

As I mentioned, there was no air pistol magazines found. There were no air pistols. All the matters related in paragraph 4 found were in relation to real firearms. If it was that the defendant’s interest dated back to when he was a young boy, it certainly remained dormant until recent or close to the time of the offence, June 2020. That means it remained dormant for about 31 years. I am of the view that the defendant’s interest in real firearms and ammunition only came about sometime in or about 2020. I reject the fact the defendant was a gun enthusiast from an early age.”

16.  The judge was conscious of the appellant’s experience, or interest, in assembling his own gun and hence disbelieved his claim that the uncharged articles were used as spare parts for his gun. The judge reasoned[34]:

“The defendant had a manual to assemble a genuine gun, ‘Build Your Own Semi-Automatic Manual’ and also had a pamphlet or flyer from Sportsman’s Den on where to buy guns and ammunition which were available for purchase. Mr Chau, in his submissions, said the manual basically guides the reader through the various processes of assembling one’s own handgun. This was the method adopted by the defendant. Mr Chau said it must be worth remembering that the defendant bought the parts for the gun separately. A gun was then assembled piecemeal by the defendant.

Mr Chau said the two frame kits were to be used as spare parts. I wholly reject that submission that they were to be spare parts. It is clear that these frame kits were potentially to be used to be assembled as another or two other real firearms if the defendant had the relevant parts. Why would the defendant need spare parts if this gun was not intended to be used?”

17.  The judge also discerned from the present facts two additional aggravating factors. First, she contrasted the separate importations of gun parts to assemble a firearm with a one-off importation of such a firearm, treating separate importations as an aggravating feature[35]:

“I further take the view the defendant deliberately imported the parts of a gun to assemble himself to avoid detection by the authorities. This was a well-planned scheme for him to possess a firearm. I consider the importation of the parts an aggravating factor.”

18.  Accordingly, she rejected the contention that the appellant should be given a discount on sentence on the basis that there was no evidence to show that he intended to use the unloaded and unfired firearm for any illegal purpose[36].

19.  Secondly, the judge found that the pistol (and the significant amount of ammunition) had not been properly stored. This prompted her to consider that the pistol was “one step away from its use”[37]. She held[38]:

“… the pistol and the 390 bullets were together and clearly ready to be used. I accept there was no real blatant risk that the pistol and the bullets would be accessible to others as it was kept in a safe in the defendant’s bedroom. However, the combination lock of the safe was broken and it could be opened with a key which was kept in a drawer in the defendant’s bedroom that was not locked.

There was a possibility that they could be accessible to others, for example, if his home were to be burgled, but I do not consider it very high. I still do not consider this to be a mitigating factor as the hiding of the pistol with a significant amount of bullets together reveals that the defendant armed himself with a firearm in working condition and with ammunition available for its use.”

20.  In the result, the judge adopted 12 years’ imprisonment as the overall starting point of the offence. She gave the appellant a one-third discount for his plea, making a sentence of 8 years’ imprisonment.

The appellant’s submissions

21.  By Ground 1, Mr Lawrence Lau, with Ms Tina Mok, for the appellant, argued that the judge wrongly and unfairly inflated the sentence by not merely taking into account the appellant’s possession of two frame kits as a circumstantial factor, but by going further to hold that he had a well-planned scheme to possess a firearm by importing gun parts to avoid the attention of the authorities and to give weight to the potential risk of him building more firearms. Mr Lau also criticized the judge for not specifying the enhancement in sentence in respect of each aggravating factor. He submitted that the enhanced starting point should have been less than 12 years if the enhancement in respect of the possession of the two frame kits was taken out from the formula, bearing in mind that the maximum sentence for the offence is 14 years’ imprisonment.

22.  By Ground 2, the judge was criticized for having misapplied HKSAR v Chan Chi Fun[39]. In particular, Mr Lau made four points on the present facts, which he said could be distinguished from those in Chan Chi Fun. First, the appellant did not physically carry his gun and ammunition which were stored in a locked safe at his home instead. Secondly, his gun was not loaded and had never been used, and the original packaging of the ammunition had not even been opened. Thirdly, his gun and ammunition were locked in a safe inside his bedroom and could not possibly be accessible to others. Finally, there was no evidence to show that the appellant intended to use the gun for any illegal purpose.

The respondent’s submissions

23.  Mr Jones Tsui, for the respondent, resists the appeal. He submitted that there was nothing wrong for the judge, for the purpose of sentencing, to utilize all aspects of the Summary of Facts duly accepted by the appellant and therefore take into account the potential risk of the two frame kits being assembled into another firearm. Since the appellant had the habit of purchasing gun parts piecemeal, it could be reasonably inferred that he would assemble another complete gun upon receipt of further gun parts to be ordered or received. Mr Tsui went on to submit that, even if no other gun was to be assembled, the appellant’s sentence could still be enhanced on a similar or different footing that he possessed spare parts for his pistol in order to prolong its possession or use. In respect of enhancing the sentence on the basis of avoiding the detection of the authorities, Mr Tsui pointed to the risk of unintentional discharge of bullets in case a self-assembled gun was not in working order.

24.  Mr Tsui submitted that there was a lack of valid mitigating factors in the appellant’s case. Even if there was any, the mitigating factor(s) was/were not strong enough to justify a meaningful reduction in the sentence. He submitted that a gun enthusiast may nevertheless use his gun for an unlawful purpose; and that a gun locked in a safe could nevertheless be accessible to someone if given the key.

Discussion

25.  An offence under section 13 of the FAO attracts a maximum sentence of 14 years’ imprisonment. The section expressly provides that[40]:

“(1) No person shall have in his possession any arms or ammunition unless—

(a) he holds a licence for possession of such arms or ammunition or a dealer’s licence therefor; or

(b) (Repealed)

(2) A person who contravenes subsection (1) commits an offence and is liable on conviction upon indictment to a fine at level 6 and to imprisonment for 14 years.”

26.  No guideline tariff is set for the present offence, although it is customary to impose a custodial sentence, which cannot be suspended[41]. The starting point varies from case to case and depends on a number of factors, and of course, the facts. Judging from the appellate authorities, the varying starting points could range from 15 months’ imprisonment[42] to 12 years’ imprisonment.

27.  The appropriate sentence for the present offence was most recently considered by this Court (as presently constituted) in Tsiang On Yan. The Court noted that because of the breadth of the offence, there would be a wide variety of items and circumstances where a person may offend contrary to section 13 of the FAO[43]. The Court took the opportunity to review extensively a number of appellate authorities, noting that “in the early 1990’s, a term of at least 6 years’ imprisonment after a plea of guilty was considered a guideline sentence for unlicensed possession of a firearm”[44]. With particular reference to three subsequent authorities, namely R v Au Yeung Wai Kwong[45], R v Yeung Hiu Shing[46] and HKSAR v Chan Hoi Ngam[47], the Court said that there were “obviously levels of seriousness for this offence”[48], and “depending on the nature and quantity of the firearms and ammunition involved and the circumstances in which the offence was committed … a starting point of 12 years’ imprisonment would be appropriate”[49]. It was noted that whilst a starting point of 12 years’ imprisonment after trial had been accepted by the courts, the circumstances of such cases were extremely grave and usually involved a defendant in possession of a firearm and ammunition for illegal or potentially illegal purposes, which was but “a step away from its use”[50]. The Court emphasised that special features may be present in a case that would take the offending outside the top scale and warrant a reduced starting point. As stated by the Court:

“52. A firearm and ammunition with the potential to kill or maim a person is a lethal weapon which ranks high in the level of prohibited items under this offence. A person convicted of possession of such a firearm and ammunition can normally expect a sentence after trial of 12 years’ imprisonment unless there are special features that would warrant a reduction.”

28.  We pause here to emphasise that the three authorities cited above were all very bad cases of their kind, and we would make these brief observations about them:

(a)  In Au Yeung Wai Kwong, the applicant had a number of previous convictions and was caught red-handed for possessing a military pistol in the lift lobby of a building on Nathan Road.

(b)  In Yeung Hiu Shing, the applicant was an illegal immigrant and was arrested in the course of delivering a pistol to another person, to whom it was lent for a monetary reward.

(c)  In Chan Hoi Ngam, the applicant was found in his office premises to be carrying a loaded pistol, which he said was for self-defence as a result of having been threatened and harassed by triad members, together with an aerosol canister, a spare magazine containing further ammunition and a silencer (all of which were in working order). In upholding the starting point of 11½ years’ imprisonment, the Court said it could not be criticized even if 12 years had been adopted.

29.  In Tsiang On Yan, the applicant was found, in a farm near the border with the Mainland which was occupied by him, in possession of 359.61 grammes of herbal cannabis (Count 1) and a self-loading pistol with 13 rounds of ammunition and a magazine (Count 2). He had two previous convictions involving three different offences, namely assaulting a police officer, blackmail and claiming to be a member of a triad society[51]. In addition, this Court found that there was DNA evidence of him handling the pistol which was therefore described as “a step away from its use” and his purported interest in guns was considered incredible on the facts of that case[52]. This Court concluded by saying that[53]:

“We consider that the circumstances in which the offence was committed by the applicant to be extremely grave. He was operating a farm in the New Territories and was found to be in possession of a quantity of herbal cannabis together with a pistol and 13 bullets.”

In the result, the appeal was dismissed and the starting point of 12 years’ imprisonment and the resulting sentence of 8 years’ imprisonment for the offence was upheld.

30.  The Court in Tsiang On Yan also endorsed the relevant factors to be considered in sentencing[54] for the offence of possession of arms and ammunition without a licence, as propounded in Chan Chi Fun. We would also point out that, in Chan Chi Fun, the firearms included two revolvers, a pistol, a rifle and a taser. The Court (Woo VP and Yuen JA) accepted that some of the firearms possessed by the applicant had been stored in safe places, such as a safety box, some had been dismantled, and none had been loaded or had ever been used. Notably, the applicant had a clear record. In those circumstances, the Court allowed the appeal, quashed the original sentence of 5 years and 4 months’ imprisonment, and substituted a sentence of 4 years’ imprisonment (based on an appropriate starting point of 6 years).

31.  In HKSAR v Hu Quanwu[55], the applicant was a visitor to Hong Kong. In the wardrobe of his hotel room was found his travelling bag containing a pistol[56] and a magazine loaded with three rounds of ammunition. The pistol was placed inside two plastic bags and wrapped in a piece of newspaper[57]. Noting his clear record[58], the sentencing judge adopted 13 years’ imprisonment as the starting point for the sole charge of possession of arm and ammunition to which the applicant had pleaded guilty. Whilst allowing the appeal, the Court (Yeung VP and Macrae J (as Macrae VP then was)) considered it “a very bad case of the type”[59] and therefore reduced the starting point to 12 years only, stating that[60]:

“The judge was right to take a serious view of the matter, but if we were to uphold the 13-year starting point that she had adopted, there would be very little room to manoeuvre in more serious cases of possession of arm and ammunition, such as those involving a large number of powerful arms and ammunitions, or when those arms and ammunitions had been fired or used in crimes, or when the defendant had a very bad criminal record, including previous offences of a similar nature.”

32.  In Secretary for Justice v Yan Shen[61], the respondent was a 43 year-old man of previous impeccable character[62]. On his 17^th birthday, and while pursuing his studies in the United States, he was given a pistol as a gift by his friend who was a licensed holder of such a pistol and when he ran into difficulty paying the rent for his share of the house which they jointly tenanted[63]. The respondent had kept the gun as a memento ever since[64] and until he was arrested for possession. He pleaded guilty to the offence, and was given a Community Service Order of 240 hours and fined $50,000. The Secretary of Justice applied to review his sentence. Whilst the application was dismissed, Stock VP (as Stock NPJ then was), in giving the judgment of the Court, said[65]:

“… we caution sentencing and reviewing tribunals to note that the importance of uniformity of sentencing is not intended as an encouragement to rigidity at the expense of case and individual-specific considerations. Consistency of sentencing means that like cases be dealt with in a like manner but, as is evident from the range of culpability that is presented by cases of unlicensed possession of firearms, different degrees of culpability should, as a general principle, be reflected by different sentences. As a general proposition, the degree to which mitigating factors will carry weight varies according to the nature of the offence and the sentencing policy adopted by the courts in the interests of society. Thus, for example, so determined are the courts to send a stark message to would-be traffickers in dangerous drugs that in that category of offence individual mitigation counts for very little, whereas the approach in most other categories of offence is less rigid. However, in the case of unlicensed possession of firearms, societal protection is a paramount consideration; it is a category of offence in which the sentencing court is expected to give particular weight to that paramount consideration. It is a category of offence which in general requires a deterrent sentence by which is meant ‘sentences that pay less attention to the personal circumstances of the offender and focus primarily upon the need for the courts to convey a message that an offender can expect to be dealt with more severely so as to deter others than he would be were it only his personal wrongdoing which the court had to consider’: Lord Chief Justice Woolf in R v Rehman [2006] 1 Cr App R (S) 404 at 409. But that does not require a blind eye to be turned to individual circumstances.”

Stock VP also made it clear that the appropriate sentence, in that case, would have been in the region of 18 months’ imprisonment (meaning a notional starting point of 27 months’ imprisonment)[66].

33.  Later, in Secretary for Justice v Leung Kwok Chi[67], the respondent was a retired Correctional Services officer and a genuine gun enthusiast who had a membership of, or was affiliated to, various local shooting associations and overseas gun clubs[68]. He resided in a public housing unit where there was found a large quantity of arms (including one Thomson Contender rifle, two revolvers, three airguns and a flare pistol[69]) and ammunition otherwise scattered around his flat[70]. He was initially sentenced to 18 months’ imprisonment following his plea. After a successful review of the sentence, a term of 30 months’ imprisonment was substituted (the proper starting point being 5 years’ imprisonment[71]). In terms of the varying degrees of culpability for the offence justifying a starting point at the top or lower end of the scale, the Court (Yeung VP, Barnes and McWalters JJ) had this to say:

“43. Possession of arms and ammunition without a licence is always considered to be a very serious offence in Hong Kong as they can create grave dangers to the public. If the arms and ammunition had been used or intended to be used for any crime, the starting point would be 11 years and above. Even if the arms and ammunition had not been used and were not intended to be used by the offender for any crime, the offence can still attract a starting point as high as 6 years, depending on the nature of the arms and ammunition and the circumstances in which the offence was committed.

44. …

45. … it has to be recognised that they are varying degrees of culpability for unlicensed possession of arms and ammunition and ‘at the top scale is of course possession for illegal purposes such as robbery, injuries to persons or damages to properties, whereas 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’ (See HKSAR v Lui Fui (unreported CACC 237/2007 para 27).”

34.  Finally, in Tsiang On Yan, this Court stressed that the unlicensed possession of firearms posed a danger to the public and societal protection was a paramount consideration when sentencing offenders. Hence, the strict gun control laws in Hong Kong demanded that penalties be imposed on offenders to reflect society’s opprobrium for this type of offending, subject to the particular circumstances of the offence and the offender[72].

35.  Turning, therefore, to the present case, the appellant is a person with a prior clear record. He was in possession of a single pistol. Albeit functional, the prosecution expressly confirmed that it was not fired and the ammunition was kept in its original packaging. The arm and ammunition were stored in a safe which could not be opened without a key. There was also a lack of evidence to show that the appellant had used the arm and ammunition, or physically carried them to a public place, or contemplated doing so (in which case the prosecution might have been proceeded with a charge of Possession of arms and ammunition with intent to endanger life, contrary to section 16(1) and (2) of the FAO). Amongst all of the things found in his home, there were a 94-page manual book on how a gun is assembled, as well as a flyer from Sportsman’s Den on where to purchase guns and ammunition. The appellant also claimed to have completed a shooting course in May 2020.

36.  On the part of the judge, she duly accepted the appellant’s assertions that he assembled the gun himself (and, indeed, went further to believe that a further gun would be assembled) and that he had an interest in real firearms and ammunition as from about 2020.

37.  On all of these facts, we are not prepared to accept that the appellant’s claim to have been a genuine gun enthusiast should have been rejected outright, although as a matter of good sentencing practice, the defendant’s version of events, if unsupported by any evidence, is best established by way of a Newton enquiry. As to how long the appellant had been a gun enthusiast, it is perhaps a side point in which we do not see any real impact on mitigation.

38.  We should also add this, whilst the judge was perfectly entitled to, and should, have had recourse to the full Summary of Facts for the purpose of assessing any real possibility of another gun being assembled, the difficulty in this case was that, as expressly confirmed by the prosecution, the component parts found in his home were clearly not sufficient for the purpose of assembling another gun. Absent any evidence to show that more component parts had already been purchased by, or would be delivered, to the appellant, we do not think it fair to assume or infer that another gun would or could be assembled, or would be functional if so assembled. In addition, for an offender who had a fascination for assembling his own gun, it could hardly be said that his importation of gun parts (as opposed to a finished gun) constituted an aggravating factor.

39.  In our view, the present case is certainly not a very bad case of its type, which would have warranted a starting point as high as 12 years’ imprisonment. As we have explained such a starting point is normally adopted when the circumstances of the case are extremely grave. With respect, the judge may have not correctly interpreted what we said in Tsiang On Yan by focusing too much on the generality of using 12 years’ imprisonment as the starting point for the offence, without properly regarding the actual circumstances of the case. We are satisfied that the appellant should be sentenced at the medium level of the scale for such offences.

40.  In all the circumstances, and having regard to the authorities, we considered that an appropriate starting point for the offence should not exceed 7 years’ imprisonment. We detect no discernible aggravating features to warrant enhancing the starting point further. Equally, we bear in mind that the personal circumstances of the offender should generally merit less attention than the need for deterrence in the offence in question. Since the appellant made a timely plea to the charge, for which the judge gave him a one-third discount, that would reduce his sentence to 4 years and 8 months’ imprisonment for his plea alone.

41.  We were informed that the appellant’s earliest date of release is 8 October 2025 (assuming good behaviour). That effectively meant the remaining part of his original sentence was equivalent to a sentence of 3 years and 3 months’ imprisonment, which was very close to the reduction in sentence were we to allow the appeal as previously suggested.

42.  Accordingly, we allowed the appeal, quashed the appellant’s original sentence, and imposed on him a sentence that would enable him to be immediately released.