HKSAR v. LEUNG KWOK CHI

CA AR 6/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

APPLICATION FOR REVIEW NO. 6 OF 2012

(ON APPEAL FROM HCCC NO. 38 OF 2012)

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REASONS FOR JUDGMENT

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Hon Yeung VP (giving the Reasons for Judgment of the Court):

Introduction

1. The respondent (Leung Kwok Chi), a 65-year old retired Assistant Officer of the Correctional Services Department (CSD), pleaded guilty to a charge of possession of arms and ammunition without a licence before Beeson J (the judge) on 26 October 2012 and was sentenced to 18 months’ imprisonment (the sentence).

2. The Secretary for Justice (the applicant), with leave granted by the Chief Judge of the High Court on 16 November 2012, applies, pursuant to section 81A of the Criminal Procedure Ordinance Cap 221, for a review of the sentence on the basis that the sentence “fell outside the range of sentences which the judge, applying his mind to all the relevant factors, could reasonably consider appropriate” (per Lord Lane CJ in Attorney General’s Reference No 4 of 1989 [1990] 1 WLR 41 at p 46A).

3. At the end of the hearing, we granted the application and increased the respondent’s sentence from 18 months to 30 months’ imprisonment.  We indicated that we would hand down our reasons in due course and this we now do.

The Facts

4. The respondent, having had his leg injured at his residence, a public estate unit measuring about 35 square metres (the flat), on 15 April 2011, called “999” and was taken to the hospital.  The respondent claimed that he had accidentally shot himself when he was cleaning a rifle.

5. In the flat, the police found a “Thompson Contender” 0.22” calibre rifle, S/N 443522 on the floor with a fired cartridge case jammed in the chamber. A bullet hole was found on a chair with bullet fragment on the floor.

6. Since March 1985, the respondent had been holding an Arms and Ammunition Licence No 7755 (the licence) under which he was permitted to have specified items of arms and ammunition stored in the flat and at the Hong Kong Rifle Association (HKRA).

7. A shotgun, two rifles and an air pistol, all operative, were kept in the flat together with other items of weaponry which were deactivated in accordance with the terms of the licence.  Other specified items were also found at HKRA as authorised under the licence.

8. However, the police found in the flat additional items of arms and ammunition not covered under the licence, including (1) one US origin Thompson Contender firearm consisting of one “receiver assembly” and one barrel; (2) eight silencers; (3) four firearm barrels; (4) one Crosman Classic Pellet Rifle (air gun); (5) one ERMA WERKE Mod EGR 66 Kal 9mm Revolver; (6) one RAM Combat cal.43 S/N RC08F00305 (air gun); (7) One PTB Revolver; (8) One Crosman air-gun; (9) one ORION 12Ga Calibre Flare Pistol; (10) one piece of 38mm cartridge smoke yellow; (11) one piece of 1.5 inch Ferret liquid CS, Barridcade-penetrating cartridge, complete; (12) 2,173 rounds of 0.22” calibre ammunition; (13) 940 rounds of 0.38” calibre ammunition; (14) 659 rounds of 9mm calibre ammunition and (15) 109 rounds of 357 Mag Calibre ammunition.

9. The Thompson Contender firearm (1) was capable of discharging 0.22” calibre ammunition.  The muzzle energy of the Crosman Classic Pellet Rifle (4), the RAM Combat cal. 43 S/N RC08F00305 (6) and the Crosman air-gun (8) were 5.89 joules, 3.39 joules and 10.7 joules respectively and to qualify as a firearm under the relevant Ordinance, the minimum muzzle energy of an air-gun must be over 2 joules.  The ERMA WERKE Mod EGR 66 Kal 9mm Revolver (5), with a partially blocked barrel was incapable of discharging bulleted ammunition, but was designed to discharge 9 mm calibre blank, CS cartridges and flare cartridges.  The 38mm cartridge smoke yellow (10) was a live round projectile to be fired from a device which was not present in the flat.  On impact, smoke would be emitted over a large area and it may detonate with high temperature or focused impact.  The 1.5 inch Ferret liquid CS, Barricade-penetrating cartridge (11), a 8-gram tear gas, was a projectile to be fired from a device which was not present in the flat and was designed to break the glass surface on impact so that the noxious liquid could penetrate and disseminate.

10. The 2,173 rounds were part of the 2,573 rounds of 0.22” calibre ammunition found in the flat and the respondent was permitted only to have 400 rounds which fitted the Thompson Contender firearm (1) and the Thompson Contender 0.22” calibre rifle, S/N 443522.  The 9mm calibre ammunition and the 0.38” calibre ammunition fitted a pistol and a revolver, which under the licence, had to be stored in HKRA and the maximum rounds that the respondent was permitted to have were 300 each.

11. The arms and ammunition were placed all over the flat.  It was part of the agreed facts that the safe in the flat was not large enough for storing all the unlicensed firearms and ammunition.  On the day when the incident occurred, the safe was left open with just the magazine of a gun inside.

12. The “Thompson Contender” 0.22” calibre rifle, S/N 443522 that accidently fired and injured the respondent was one of the licensed firearms.

13. The respondent was asked about the source(s) of the unlicensed arms and ammunition.  He said he had purchased them many years ago but he could not recall where they were purchased from.

14. The respondent also said he picked up a live smoke grenade from a firing range in Pak Lai and a CS (tear gas) grenade in a refugee camp years ago and had since kept them.  The CS grenade contained noxious liquid and gas which, on impact, could be released, but there was no matching firing device in the flat.

The Respondent’s Background

15. The respondent, born in 1947, did not receive much education, but was able to work his way up and joined CSD in 1970.  He retired in 2001 as an Assistant Officer I.  He was living on his monthly pension of $15,000.

16. The respondent was married in 1972 and had a daughter who passed away at the young age of 18.  He has a son who suffered injuries in an accident shortly after his retirement and the respondent had to use his lump sum pension to pay for his medical expenses.  He lived in the flat with his wife.

17. The respondent received shooting training after joining CSD and became a member of HKRA in 1984, of the Gun Club of CSD in 1986, and of the Hong Kong Practical Shooting Association in 1988.  The respondent was the founding member of the Disciplined Services Shooting Association and was also affiliated to other overseas gun clubs.  The respondent became a qualified range conducting officer to maintain safety in shooting grounds and he practiced shooting once or twice weekly in gun clubs.  He represented Hong Kong in international shooting competitions and had won many awards.

18. The respondent was a gun enthusiast and he bought arms and ammunition from gun shop dealers and obtained some from friends. He also purchased air guns and electric guns from toy shops.  The bullets, some of which could not be used, were bought for practising and competitions.  The respondent claimed that he sometimes bought more bullets for fear that they would be out of stock and he did not realize that he had saved up so many of them.

19. The respondent said he spent $5,000 to $10,000 on guns and $1,500 to $2,000 on bullets a month before his retirement.

20. The respondent said he was cleaning the rifle to prepare for a competition when it accidentally fired and injured his left upper thigh.  The respondent also said he felt regrets for his obsession in guns and ammunition and had since his arrest given up his guns, gun licence and his shooting hobby.

21. The respondent’s wife supported him, saying that he was devastated by the death of their daughter and that he had sought consolation in his shooting hobby.  The respondent had submitted letters from friends, colleagues and family members in support of his character and achievement.  He also produced certificates of awards in connection with his shooting hobby.

22. The psychologist opined that the respondent was upright and modest, law-abiding and committed to family.  She pointed out that shooting had been his only hobby in the past 25 years with much achievement in international games.  The psychologist suggested that the death of his daughter had been a great blow to the respondent and he became more absorbed in his only hobby to distract himself from his grief.

23. The psychologist said that the incident had been traumatic and the respondent suffered from post-traumatic stress symptoms such as recurrent and intrusive distressing recollections and recurrent distressing dreams of the traumatic events with difficulties falling asleep and staying asleep.  The psychologist concluded by saying that the respondent was anxious, depressed and helpless, and therefore needed help to overcome his grief and trauma.

The Judge’s Approach

24. The judge pointed out that the offence was very serious with a maximum sentence of 14 years’ imprisonment and a maximum fine of $100,000.  The judge emphasized that the very large number of items found in the flat were not properly secured and were, in most cases, accessible to anybody in the flat.

25. The judge further emphasized that the gun component parts could easily be converted to working order with a plenitude of compatible ammunition far in excess of the quantities permitted under the licence.

26. The judge had obtained a background report and made reference to the psychologist’s report as well as mitigating letters.  The judge had also heard from a Chief Police Inspector on policies and practices governing arms and ammunition licensing and supervision.

27. The judge accepted that some of the items were replica items and that a number of them were deactivated.  However, she pointed out that it was possible to reactivate the deactivated items and to modify replica items so that they became workable.

28. The judge emphasized that the arms and ammunition were placed casually in the flat and that they could be dangerous, an indication that the respondent had forgotten entirely the safety laws that he must have known and practised over the years.

29. The judge took the view that the respondent had turned from an enthusiastic participant in shooting sports to an arms and ammunition fanatic, obsessed with their collection.

30. The judge pointed out the absence of explanation for the presence and the source of so much unlicensed and potentially dangerous materials, including the tear gas canister and the grenade in the flat.  The judge questioned why the rifle that the respondent was cleaning was loaded.

31. The judge had referred to a number of cases on sentence for possession of arms and ammunition without a licence, in particular HKSAR v Chan Chi Fun [2006] 1 HKLRD 128 in which the Court of Appeal stated in 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.”

32. The judge further referred to Secretary for Justice v Yan Shen (unreported CAAR 10/2011) in which the Court of Appeal stated firmly that in cases of unlicensed possession of firearms, societal protection is the paramount consideration in order to maintain the safety of Hong Kong and that an immediate custodial sentence, often for a substantial term, should be imposed except in truly exceptional circumstances.

33. The judge considered an immediate custodial sentence was called for, but having taken into consideration that the respondent had been detained in Siu Lam Psychiatric Centre for more than 70 days, his co-operation with the police, his pleading guilty to the charge and the respondent’s financial loss, the judge considered 18 months’ imprisonment, which she believed to be of sufficient deterrent effect and yet not so severe as to destroy the respondent’s life, appropriate.

Grounds of the Application

34. Mr David Leung for the applicant again emphasized the seriousness of firearms offences in that “the mere possession of firearms can create dangers to the public.  The possession of a firearm may result in that firearm going into circulation.  It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public.”

35. Mr Leung identified the following aggravating factors:

1.   The respondent was in possession of a large quantity of unlicensed firearms and ammunition;

2.   There was a “live 38 mm cartridge, smoke yellow” which may detonate at high temperature or focussed impact and a “live” tear gas cylinder capable of detonation on impact, both without the necessary firing device;

3.   The safe was opened and only the magazine of a gun was placed inside;

4.   There were licensed arms including a shotgun, two rifles and an air pistol, all operative, with 700 rounds of live ammunition;

5.   There were licensed but deactivated arms, namely four rifles, one pistol and two revolvers;

6.   There was a large amount of air guns with a muzzle energy of less than 2 joules, model guns and related items, fired ammunition, dummy ammunition, fired smoke grenades and parts, and similar items;

7.   The replicated guns could have been adapted into firing real bullets and the deactivated guns could be reactivated;

8.   Some of the firearms, airguns, revolvers and pistol were in working order; and

9.   One of the rifles was loaded; and

10.   The ammunition were placed in various places in the flat quite randomly.

36. Mr Leung suggested that the judge should have been guided by the maximum penalty, namely a fine of $100,000 and 14 years’ imprisonment and from that starting point assessed the gravity of the offence in question.  He referred to the judgment of McMullin VP in Attorney General v Ho Chun Chau [1985] 1 HKC 40 at 45A:

“We accept that the proper approach of the court should, when considering sentence, be to have regard to the intention of the legislature as indicated in the penalties provided and to measure the case before it against the kind of case capable of attracting the maximum penalty.”

37. Mr Leung emphasized that the firearms, air guns, revolvers and pistol were in working order and that they could be readily used with the provision of ammunition most of which were found in the flat.

38. Mr Leung argued that the judge had failed to give sufficient regard to the following principles:

(a)   In order to ensure Hong Kong to be a safe place, one of the important measures implemented is to exercise stringent control over firearms and any kind of unlawful possession of firearms which upon conviction should be severely punished;

(b)   The offence in question is a very serious one;

(c)   The mere possession of a firearm may result in that firearm going into circulation.  It can then come into possession of someone other than the particular offender for example by theft in whose hands the firearm would be a danger to the public;

(d)   “The proper sentence on a plea of guilty for simple possession of a gun would be six years” and “where there is an intent to use the gun for an unlawful purpose something in excess of six years’ is appropriate” (Attorney General v Lai Shu Piu and another (unreported CAAR 12/1985) with an upward adjustment suggested in R v Ho Chun [1992] 1 HKCLR 86 at p.88; and

(e)   In cases for possession of firearms and ammunition with intention for unlawful purpose, a starting point of 11 to 12 years’ imprisonment were endorsed and in cases where there was no intention to commit crimes with the use of the firearms and ammunition, starting points in the range of 6 to 12 years’ imprisonment were adopted.

39. Mr Leung suggested that the 18 months’ imprisonment after the respondent’s plea, even in the absence of unlawful importation or intention for unlawful purpose, was manifestly inadequate because of the risk that such offence imposes on the society.  Mr Leung referred to the judgment of Lord Chief Justice Woolf in R v Rehman [2006] 1 Cr App R (S) 404 at p.409 and 411:

“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.”

“The mere possession of firearms can create dangers to the public. The possession of a firearm may result in that firearm going into circulation. It can then come into possession of someone other than the particular offender, for example by theft, in whose hands the firearm would be a danger to the public. Parliament has therefore said that usually the consequence of merely being in possession of a firearm will in itself be a sufficiently serious offence to require the imposition of a term of imprisonment of five years, irrespective of the circumstances of the offence or the offender, unless they pass the exceptional threshold to which the section refers.”

40. Mr Leung also argued that the judge had paid excessive weight to the personal circumstances of and the mitigation put forward by the respondent.

The Respondent’s Response

41. Mr Chan Siu-ming, on behalf of the respondent, suggested that there was no tariff sentence for the offence of possession of arms and ammunition without a license and he argued that the judge, who was in the best position to assess the gravity of the offence, had taken into consideration all relevant factors before imposing the 18 months’ sentence.  Mr Chan identified the mitigating factors and referred us to a number of authorities to support his contention that the sentence imposed on the respondent was a proper one.

42. Mr Chan also invited us to take into consideration the personal circumstances and to deal with the respondent in a lenient manner.

Discussion

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. It is only by adopting a stringent approach to the unlicensed possession of arms and ammunition that the court can ensure that Hong Kong continues to be a safe city and to that extent we fully endorse the observations of Lord Chief Justice Woolf as expressed in R v Rehman (supra).

45. However, it has to be recognised that there are varying degrees of culpability for unlicensed possession of arms and ammunition and “at the top of the 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).

46. In Chan Chi Fun (supra), Woo VP laid down the relevant factors on sentence for unlicensed possession of arms and ammunition, which were adopted in Yan Shen (supra) as follows:

“(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.”

47. Woo VP emphasized at para 19 of his judgment in Chan Chi Fun (supra) that “The basis for sentencing in respect of this type of offence is abundantly clear.  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 of the case and the defendant’s background”.

48. In Chan Chi Fun (supra), the court accepted that some of the firearms had been stored in safe places such as a safety box, some of the firearms had been dismantled, and none of the firearms had been loaded or had ever been used.  The court further accepted that with the defendant’s clear record, the potential risk posed by the firearms had substantially been reduced.  Nevertheless, the court considered a starting point of six years’ imprisonment necessary as a deterrent because of the risks of the arms and ammunition falling into the wrong hands.

49. Mr Chan, for the respondent, relied heavily on R v Hirai Hirotsugu (unreported HCCC 30/1995) as referred to Chan Chi Fun (supra) in which the defendant, a Japanese merchant, was fined $360,000 for possession of 10 revolvers, 38 pistols, 5 air guns and almost 1,500 bullets.  However, it must be pointed out that the arms and ammunition in question were weapons from the Second World War and were just a personal collection with no possible intention/opportunity for any illegal purpose and as they were properly stored, there was no risk of any threat to the public.

50. Mr Chan also pointed out that in Yan Shen (supra), the defendant who pleaded guilty to a charge of unlicensed possession of a pistol was sentenced to 240 hours of community service and a fine of $50,000.  The Court of Appeal refused the application for a review of sentence.  It had to be emphasized that the pistol, with an empty magazine, was given to the defendant when he was a student in USA 20 years ago and he bought it to Hong Kong without knowing that it was unlawful to possess a firearm.  Whilst the Court of Appeal accepted that there was a risk the weapon might unwittingly be left in a public place, the risk posed was less than in many other cases that one might imagine or to which one might point.  The Court of Appeal considered a sentence in the region of 18 months’ imprisonment appropriate after plea, but only refused to review the sentence because of the special circumstances of the case.

51. An important consideration in the mind of the judge and relied on by Mr Chan in his submissions before us was the psychological condition of the applicant.  It appears that the applicant, understandably, was deeply affected by the death of his daughter and used his shooting hobby as a means to distract him from, and to better deal with, his grief.  However, over the years he became obsessive about his hobby and his obsession may have hindered his ability to act sensibly and rationally in relation to arms and ammunition.

52. However, we were not persuaded that in respect of this respondent his obsession can be said to be a psychiatric condition of such nature and severity as to reduce or eliminate general deterrence as an appropriate purpose of punishment.  As in Yan Shen, it does no more than reduce rather than remove the level of the respondent’s moral culpability.

53. We accepted that most of the factors identified were in favour of the respondent.  We also accepted that when the offender was licensed to possess arms and ammunition which were kept in 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.  However, we did not agree with Mr Chan’s suggestion that just because the arms and ammunition were stored in the flat, the public could not have access to them.  The flat was certainly accessible to friends and relatives of the respondent and the arms and ammunition could be attractive to them.  A trespasser, such as a burglar, would also find the arms and ammunition in the flat very tempting.

54. The respondent was in possession of a large quantity of serious and lethal weapons and, on the evidence and as found by the judge, they were not properly stored, but were scattered around a public housing unit, thus posing a serious potential risk to the surrounding community.  The risk of the unlicensed arms and ammunition falling into the hands of possibly undesirable people did exist.

Conclusion

55. We took the view that the offence called for a generally deterrent sentence and we were satisfied that the proper starting point for the charge of unlicensed possession of arms and ammunition to which the respondent had pleaded guilty should at least be 5 years’ imprisonment.  The respondent was entitled to the usual one-third discount of sentence for his guilty plea and we would further reduce the sentence by 10 months because of the mitigating factors identified by the judge as well as the fact that this was a review application.  We were satisfied that the proper sentence should be 30 months’ imprisonment and that the 18 months’ sentence imposed by the judge fell outside the range of sentences which the judge, applying her mind to all the relevant factors, could reasonably consider appropriate.

56. We therefore allowed the review application and increased the respondent’s sentence from18 months to 30 months’ imprisonment.