HKSAR v. MA CHUN KING RICKY

HCCC 356/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 356 OF 2015

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: The defendant, Ma Chun-king, Ricky, faced three charges involving arms and ammunitions. The first two counts involved the possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238 (Counts 1 and 2). The last count was an attempted possession of arms and ammunition without a licence, contrary to aforesaid section 13(1) and (2) of Cap 238, and section 159G of the Crimes Ordinance, Cap 200.

The defendant pleaded guilty before a magistrate and was committed to the High Court for sentence. I will read out the admitted facts.

On 28 July 2013, the defendant was intercepted by a Customs officer at the Shenzhen Bay Control Point when he returned to Hong Kong from the mainland. A search of his person revealed two black arc-shaped magazines, one with 24 cartridge cases and the other 26 cartridge cases. Examination conducted later showed that the two magazines were capable of functioning in a Chinese-type 56 assault rifle in 7.62 times 39 millimetres calibre. The 50 cartridge cases, that is 24 plus 26, were of 7.62 times 39 millimetres calibre. That is the facts of Count 1.

The defendant was arrested. Under caution, the defendant claimed the magazines were toys with decorative ammunition. He bought those items three to four years back for $3,000 from a shop and he had taken the magazines to show to a friend in the mainland.

The defendant led the police to his home at Cheung On Estate, Tsing Yi on the same day, and the police found 10 rifles, 15 pistols, 11 revolvers and a batch of magazines and ammunition inside the defendant’s bedroom. Under caution, the defendant claimed they were all toy guns he had collected.

After examination conducted later, the defendant was found to have in his possession five airguns capable of discharging pellets with a muzzle power exceeding 2 joules. The maximum muzzle energy being 9.7, 16.08, 2.87, 2.28 and 2.28 joules respectively, all exceeding 2 joules. The defendant was also found to be in possession of three cartridge cases in 7.62 times 39 millimetres calibre. That is the contents about Count 2.

The defendant attended a video-recorded interview on 29 July 2013. During the video-recorded interview, the defendant reiterated that in relation to the items found in his possession in Count 1, he purchased the cartridges from a shop for a decorative purpose and that he had brought them along to show a friend in the mainland. As to the items found at his home, basically the defendant said that a number of the airguns were sold to him by his customer when he was operating a shop selling war-game related merchandises.

The defendant was released on bail pending examination of the large number of exhibits. Due to the extended period required for the examination, the defendant was released unconditionally on 3 April 2014.

On 9 June 2014, a parcel from Thailand aroused the suspicion of a Customs officer on duty at the Customs Examination Hall at Chek Lap Kok. Upon opening the parcel, the officer found a 0.38 calibre revolver and a total of 47 rounds of ammunition hidden inside the parcel. The police was notified to take over the case.

A controlled delivery operation was mounted, and the proprietor of a shop mentioned as the addressee denied knowledge when questioned by the police. But he told the police that the defendant had requested him to receive a parcel of souvenirs sent from Thailand on his behalf.

The defendant was arrested by the police and under caution the defendant said he bought that 0.38 real gun in Thailand and mailed it to Hong Kong for his own collection, saying also that he would not hurt people. That is Count 3.

The defendant attended a video-recorded interview on 11 June 2014 and he gave details of how he came to purchase the gun and mailed it back to Hong Kong.

Examination showed the revolver was a 0.38 special calibre US origin Ruger Police Service Six Revolver in working order. The 47 rounds of live ammunition were of 0.38 special calibre, suitable for discharge in like calibre revolver such as the special revolver seized at the same time.

The defendant formally admitted and accepted that at all material times he had possession of the arms and ammunition referred to (the first two counts) without a licence in Hong Kong and that he attempted to possess the arms and ammunition referred to (Count 3) without a licence in Hong Kong.

Background and mitigation

The defendant is 43-year-old single man with one previous similar conviction in 2007. He was fined $30,000 for the possession of arms and ammunition without a licence. The defendant studied up to form five and had worked as a waiter and a tour guide. In 2006, the defendant operated a shop selling simulated military products but the shop closed down in 2011. The defendant then became a part-time war game guide for about a year. He was unemployed since 2013.

Mr Peter Yu, counsel for the defendant, submitted in mitigation that the defendant is a gun enthusiast who had a huge addiction to toy guns. The defendant started to sell simulated guns in 1991 and the shop closed after a year. The defendant then spent 10 years in Korea. Upon his return, he operated another shop selling simulated military products. He transferred his interest to a friend in 2011 and he became a war game instructor, teaching gun safety and war game safety.

As the airguns are too long to be placed inside a wardrobe, the defendant placed them outside. The defendant placed caps on the airguns for safety. There were also safety locks so they would not be fired accidentally. He locked his bedroom door so he was the only person who had access to his bedroom.

As to the commission of the first offence, Count 1, he came to know a “Sze Fu” at a bicycle shop in Nansha where his sister had a flat and he stayed from time to time. He had showed photographs of the cartridges to the Sze Fu but the latter wanted to see the real thing, he therefore brought along the cartridges to show him in order to show off. He had no intention of using the cartridges for illegal purposes. The defendant reiterated that the cartridges were for decorative purposes and were not functional.

As to the Ruger Police Service Six Revolver, the defendant said this is the first time he attempted to obtain a real gun. He found it has a collector’s value as such a model is out of production. He planned to disarm the gun by drilling a hole in the handle and extracting all the gun powder from the live rounds.

In relation to defendant’s assertions that the cartridges were not functional, that the airguns have safety devices on, he intended to disarm the Ruger Police Service Six Revolver, I asked the prosecution to furnish me with information whether the defendant’s assertion is true. I have been supplied with such information and I will deal with them when I consider the appropriate sentence.

Mr Yu informed me that the defendant is very remorseful and he pleaded guilty at the earliest possible opportunity. His possession of the arms and ammunition was purely as a collector with no intention to use them for any illegal purpose.

The defendant, his father, his elder sister, his girlfriend, and a number of friends wrote to me asking for leniency. The defendant himself stressed that he had no intention to commit any crime with the arms and ammunition and he had learnt a bitter lesson. One of his friends, a certain Mr Lo, expressed surprise to learn of the defendant’s crime as the defendant used to remind Mr Lo the restriction on firearms in Hong Kong.

I called for a psychologist’s report on the defendant prior to sentence. The defendant was described as a reserved and egocentric person. The clinical psychologist was of the view that the defendant had not learned from his previous wrongdoings and somehow harbours the idea that he should not be criminally liable if the arms and ammunition collected by him were not for illegal use. His risk of reoffending was assessed to be moderate.

Mr Yu at the adjourned hearing today further mitigated on behalf of the defendant. He confirmed that the defendant agreed with the psychologist’s report and also the statements further provided by the prosecution in relation to the assertions made by the defendant.

Mr Yu stressed that the defendant is not a bad person and he finds himself in his present position purely because of the interest in collecting guns since he was young. Mr Yu accepts there is a risk of the arms falling into the hands of the wrong people, but stressed that in relation to the airguns such risk is not high as the defendant only took out those airguns with muzzle energy not over 2 joules out to play war games and he was aware that those with higher muzzle power would injure others.

Sentence

Possession of arms and ammunitions without a licence is a serious offence. A person convicted of this offence on indictment is liable to a fine of $100,000 and imprisonment of 14 years. In HKSAR v Chan Chi Fun [2006] 1 HKLRD 128, the Court of Appeal stated (this is taken from the headnote):

“As a rule, this type of offence would attract a severe and deterrent sentence, for the reason that firearms and ammunition posed a potentially grave danger to the society. In determining the appropriate sentence, the mitigating or aggravating factors included:

(a) the type of firearm and ammunition involved;

(b) whether the defendant physically carried the firearm and ammunition;

(c) whether the firearm was loaded;

(d) whether the firearm had been used;

(e) whether the defendant intended to use the firearm for illegal purposes;

(f) whether the firearm and ammunition were properly stored or whether they were easily accessible by offenders; and

(g) whether the defendant had a clear record.

The level of sentence depended on the court’s view of the potential risk posed by the firearm and ammunition in question, taking into account the circumstances of the case and the defendant’s background.”

These relevant factors were adopted in a case of Secretary for Justice v Yan Shen CAAR 10/2011 (unreported). The Court of Appeal in that case stated that societal protection is the paramount consideration in order to maintain the safety of Hong Kong and an immediate sentence often for a substantial term, should be imposed except in truly exceptional circumstances.

The Court of Appeal in a case of Secretary for Justice v Leung Kwok Chi CAAR 6/2012 (unreported), also referred to the above two cases and adopted the same.

As to the ammunition possessed by the defendant in Count 1, I accept that the possession of ammunition is usually less serious than the possession of arms: see the case of R v Man Hung Pui [1993] 2 HKC 174. The evidence as confirmed by the expert showed that in respect of each of the 50 cartridges, primer was not present and the primer pocket was filled with rubber-like material rendering the ammunition incapable of being discharged. Each of the magazine could house 30 rounds of ammunition. The defendant carried 24 and 26 respectively. I accept that they were decorative items which the defendant wanted to show off to the Sze Fu. There was no evidence that the defendant possessed them for any illegal purposes.

Bearing in mind that the defendant is not a first offender, having a previous conviction for the same offence, I am of the view that a sentence of 12 months’ imprisonment after trial would have been appropriate.

In respect of Count 2, I accept the possession of air rifles and air pistols is less serious than the possession of unlicensed firearms: see The Queen v Leung Shiu Lun (unreported) CACC 609/1996. A total of five air pistols are involved here. Three of them were just over the statutory limit of muzzle energy of 2 joules, namely 2.28, 2.28, and 2.87 joules. However, the other two have a higher muzzle energy, one at 9.7 joules and the other at 16.08 joules. They were not properly kept under lock but rather casually placed against the wardrobe inside the defendant’s bedroom.

I accept the expert evidence that there were safety locks on them and I also accept from the photographs that some can been seen with a cap on. I accept the defendant had only taken those airguns with muzzle power not over 2 joules out to play war games and that he usually locked his bedroom door to restrict access to his bedroom. Nevertheless, one cannot discard the possibility of these items falling into the wrong hands such as if the place is burgled.

As to the three cartridges found, again, they were for decorative purposes as they were in the same condition as the 50 found in Count 1: that is according to the evidence of the expert.

I accept that there is no evidence to show that the defendant’s possession of the arms and ammunition in Count 2 was for any illegal purpose.

Bearing in mind the defendant already had a previous similar conviction and in all the circumstances of this case I am of the view that a term of 2 years’ imprisonment after trial would have been appropriate.

The attempted possession of the unlicensed 0.38 revolver and the live ammunition in Count 3 is more serious in this case. The defendant was already caught in possession of the ammunition in Count 1 and arms and ammunition in Count 2 and was under investigation when he committed this attempted offence. He was granted bail originally but as the examination took much longer than expected, the defendant was later released without bail.

As the defendant already had one previous conviction of possession of arms and ammunition without a licence back in 2007, he could not possibly have thought that nothing would come out of the much larger quantity of arms and ammunition he was found in possession on this occasion. He therefore committed the offence in Count 3 while practically waiting for the outcome on the first two counts.

This is the first time the defendant was found to attempt to possess a real gun. I accept the reason he gave for having a desire to own such a gun, even though the expert was not able to comment on this aspect. I also accept that he intended to drill holes in the gun handle and in the live bullets to render the gun incapable of firing shots. Nevertheless, I cannot ignore the risk of this gun falling into wrong hands before the defendant was able to render the gun inoperative. Furthermore, should this gun fall into the wrong hands, even if it had been rendered inoperative, it could still be used for illegal purposes.

Having considered all of the circumstances of this offence, I am of the view that a term of 4 years’ imprisonment after trial would have been appropriate.

The defendant pleaded guilty at the earliest available opportunity and I will give him the full one-third discount. After the discount, the sentence for the three counts are as follows.

Count 1, 8 months; Count 2, 16 months; Count 3, 2 years and 8 months, that is 32 months.

Having considered the circumstances of all these offences and considering the totality principle, I am of the view that the sentence imposed on Count 1 and Count 2 should be served concurrently, whereas the sentence imposed on Count 3 should be served consecutively to those imposed on Count 1 and 2.

So the actual sentence: Count 1, 8 months’ imprisonment; Count 2, 16 months’ imprisonment. Both sentences to run concurrently, making a total of 16 months’ imprisonment.

Count 3, 2 years and 8 months’ imprisonment, to run consecutively to the 16 months’ imprisonment imposed on Count 1 and Count 2, making a total of 4 years’ imprisonment.