COURT: Defendant, you have pleaded guilty to two charges of possession of arms and ammunition without a licence, contrary to section 13(1) and (2) of Chapter 238, which is the Firearms and Ammunition Ordinance.
You pleaded guilty to these two counts and admitted the Summary of Facts on 12 October 2020 before a magistrate sitting at the Eastern Magistrates’ Court. You were, as a result of your plea of guilty, committed to the High Court for sentence.
Sentence
I had the first hearing of plea and sentence on 4 January this year, 2022, but the sentence was adjourned to the end of the trial of HCCC 331/2020 because you were to be called as a prosecution witness in that trial against two defendants, who were Su David and So Hon-to, Stephen, the 1st and 2nd defendant respectively. In that trial, you were also granted immunity.
That trial lasted for about 25 days and commenced on 13 January 2022. You had given evidence for approximately 5 days in that trial. You were, of course, the main witness the prosecution relied upon in respect of the charge of conspiracy to murder against the two defendants in that trial and the only witness. And you were the only witness against the 1st defendant. The only witness for the conspiracy to possess firearms and ammunition. But for the 2nd defendant, there was your evidence plus the 2nd defendant’s admissions in his video-recorded interview.
As it is clear from the verdict of the jury in that case, HCCC 331/2020, they relied upon your evidence and convicted the 2nd defendant on the 1st charge of conspiracy to murder, and the 2nd charge also, conspiracy to possess arms and ammunition. The 1st defendant, however, was acquitted on both charges. So as the trial has completed, I now come to sentence you for these two charges to which you have pleaded guilty.
I have informed Ms Tsang prior to just this hearing that I will be delving in a little bit more into the facts than is what is stated in the Summary of Facts since I have heard more about this case. But of course, I shall not be sentencing you on matters which are irrelevant or aggravating which are not relevant to this case before me, that is, HCCC 243/2020.
Turning to the facts of this case, and I will adopt the Summary of Facts here that you admitted.
On 1 January 2019, the police went to an abandoned school in Tai Po for investigation, that as I know from the trial is Shing Ming Primary School. They found on the slope a bullet hole and near the slope was a piece of metal, gold and greyish colour, which was a bullet head. A cartridge case was recovered by the police in Tai Wo Estate. This cartridge case recovered was from a bin at the lobby of Tsui Wo House where the 2nd defendant lived in that building. It is clear from the evidence in 331, that its video footage, that the 2nd defendant had seemingly thrown something into the bin after he had went up with you (to Shing Ming Primary School) to fire a gun.
In the early hours of 1 January, the police then raided your residence in Siu Lek Yuen Village, Shatin. This is where you lived with your aunt. The police found in your wardrobe a black self-loading pistol designed to discharge ammunition in 9 by 19 millimetres calibre. The pistol was functional and was capable of discharging ammunition in 9 by 19 millimetre calibre. A magazine containing 18 live rounds of ammunition in 9 time 19 millimetre calibre was found and the magazine was capable of storing 20 rounds of ammunition of the same calibre. And it was suitable to be used in the pistol found. The ammunition found in the magazine was also suitable to be discharged in the pistol found or a Glock 17 self-loading pistol.
Together with the magazines were 31 live rounds of ammunition also of the same calibre and was suitable for discharge in like calibre firearms such as the pistol that was found and/or a Glock 17 self-loading pistol. A gun part known as the “ring” was also found.
As I hear from the evidence in HCCC 331 and this pistol was actually handed to you by the 2nd defendant on 29 December in a sling bag, and it was just outside Tai Wo Plaza, which is the area where the defendant D2 lived. My understanding is this sling bag was also found at your house, which contained the bullets.
The 2nd defendant had instructed you to go and collect this pistol from him. He then instructed you to come out the following day to test fire that pistol with him, which brings me to the video-recorded interview wherein you admitted that at paragraph 5(e) of the Summary of Facts that there was a pistol testing incident on 30 December 2018, where it says upon instructions by Stephen, who was the 2nd defendant, over the phone, you went to Tai Wo to meet up with him for testing the pistol.
Together you walked to an abandoned school, Shing Ming School and there you passed Stephen the pistol because you knew Stephen wanted to test it. The pistol was fully loaded and it was Stephen who loaded it. Stephen found a piece of wood as a target. Stephen, with gloves on, fired the pistol at the piece of wood. The cartridge could not be located. The shot was very loud. Stephen told you to leave at once. Stephen said he did not expect it to be so loud and you fled the scene immediately.
It was not disputed in the other trial that this pistol found in your possession had been fired as that pistol is the subject matter of Count 2 in the indictment against you. In fact, what I did hear further in the trial was that as said, D2, Stephen, said it was so loud, he actually went upstairs to his house later and got you a pair of earplugs and gave them to you. You then went home with the pistol and the ammunition and magazine.
It is clear from the other case, 331, that the wooden board that was shot at was found and the wooden board had a hole in it. This was caused by the bullet that was shot from this pistol. The reason why you had kept this pistol is that the 2nd defendant had in fact told you and given you instructions to use the pistol to kill Lam Ching-fung or Hobbit, who was the intended victim of the conspiracy to murder charge in case No. 331. You were to find the 1st defendant in 331 to assist you to go and test fire the gun again after New Year’s Day 2019.
In that case, I had heard that the 2nd defendant had instructed you in fact to buy two different outfits with wigs and prescription-less glasses to carry out this killing at Hobbit’s house in his lobby. You had in fact purchased these outfits to do that.
You pleaded guilty to another charge which is Count 1, which was that you had in your possession also at your house at Siu Lek Yuen in around December 2018 a quantity of arms and ammunition which were, namely, two self-loading pistols and 450 rounds of ammunition. These arms and ammunition, I have heard in the trial of 331, were as a result of the 2nd defendant giving you these arms and ammunition to keep for him some time in December. He had given them to you and told you that he did not want to keep them because Hobbit was acquainted with him and the 1st defendant and Hobbit did not know you. Stephen also said that should they, that is, the 1st defendant and him, be arrested later, these things would not be found, and therefore, they should be kept with you for the time being.
It is apparent from the trial that D2 wanted to kill Hobbit. You kept these arms and ammunitions therefore and have an agreement with him to keep them, you have in fact pleaded guilty to being actual possession of these arms and ammunition.
In December, these arms and ammunition, however, were, on the 2nd defendant’s instruction to you and in his presence at your house, given to Samuel on 28 December 2018. They were given to Samuel at a pagoda near your house.
It is relevant that I mention Samuel here because as it is admitted in the Summary of Facts which you have admitted to at paragraph 7: on 31 December 2018 and 1 January 2019, in Hung Hom, the police raided the residence of Leung Chung-yan, who was Samuel. And during that raid, the police found:
1. A self-loading pistol designed to discharge ammunition in 9 by 19 millimetre calibre. Examination showed the firing pin was not long enough to strike the primer of a cartridge to initiate ignition. The pistol was not functional and test firing could not be conducted.
2. Another self-loading pistol designed to discharge ammunition in the same calibre. That pistol was tested to be functional and capable of discharging ammunition in the same calibre.
3. Further found are two defective magazines without magazine follower or magazine spring. And, more than 9 boxes of ammunition containing 15 live rounds of ammunition in 9 by 19 calibre. This ammunition in this calibre was suitable to be discharged in like calibre firearms such as the Glock 17 self-loading pistol.
So in regards to the pistol that was found at Samuel’s house, which show the firing pin was not long enough to strike the primer of a cartridge to ignite the ignition. Therefore, that was not a functional pistol. It was apparent in the evidence that this was the golden barrel pistol. And again, on the instructions of the 2nd defendant, Stephen, he had told you to bring out that pistol for him to test fire, this time at Ling Oi Primary School, which was near Shing Ming Primary School in Tai Po. But at that time it did not fire.
Stephen then brought this pistol home and told you that it was not functional for those very reasons as the arms and ammunition experts said was that there was something wrong with the firing pin. This test firing was conducted on 26 December, shortly after you had been to church with your family that day.
So all in all, Ms Chak, defendant, you have admitted in the two charges to be in possession of three pistols which are arms and 500 rounds of ammunition. One of the ammunition was the first one that was already fired.
I have taken into account the mitigation put forward by Ms Tsang, your counsel, and the written mitigation and oral mitigation and the mitigating letters submitted on your behalf in the bundle, which includes a mitigation letter written by yourself. The essence of Ms Tsang’s mitigation is that at the time you committed these offences, you were 17 or 18 years old. You were a teenager who had been influenced by other peers older than you. Who was older than you was the 2nd defendant and who manipulated you to commit this offence. Because of your weakness, you did not know what you were doing. You did not appreciate the seriousness of these offences which you were committing.
I am aware of your background. First of all, let me just say you are now aged 22. As I said, at the time of the offence, you were 17 or 18 years of age. But I note that you became or you came to know the 2nd defendant online at the end of 2016 when you were about 16 years of age. And this was an online platform on Facebook which is apparent he took a certain political stance.
Ms Tsang has told me that you were a good student and had done well and educated up to Secondary 6. But when you met the 2nd defendant, your education or academics went south because you had committed these offences.
As regards your background, it is not known who your father is. And your mother was a long term patient in a psychiatric hospital. I am informed that you were placed into Po Leung Kuk 27 days after your birth. It was at the age of five whereby your aunt took up the role of raising you. However, she suffered from a leg tumour and, as a result, one of her legs was amputated after an accident. She is now left with a prosthetic limb. You have been cared for by her ever since you were of young age.
Ms Tsang tells me that you have four aunties, of which all are here today. They have seen a significant change in your maturity about the time you committed this offence and afterwards. You are now a young lady aged 22. You are more mature now and realise the hard lesson you have paid and that you have usefully used your time in prison and taken your DSE exams to further better yourself. After your release from prison, you wish to get into a good university. and of course, look after your aunt. So you have tried very hard to start over again.
In your letter to me, you have also indicated to me that you realise your wrongdoing and you are very remorseful for what you have done. You said, “Although I had a proper job at the time of the offence, I was confused and goalless at the time. I hung out with the wrong crowd and did not consider the consequences carefully. However life in custody is mundane and monotonous but I have found my goal here and I wish to attend university and put myself back on the right path.” You have devoted your spare time to study. You realise the severity of your offence you have committed and understand that you must be punished by the law, and you are willing to shoulder your responsibility and wrongdoing.
As regards your aunt, Ms Chak Man-sze. She has said in her letter that you fell in with the wrong crowd that you met online, which lead you to commit the current offences. She believes that you were young and ignorant at the time and blinded by romance. However, she said that you have mentioned that you admit your wrongdoings and you are thankful that you were arrested by the police at the time as it saved you from getting into further trouble. After taking responsibility for your action, you are working hard.
I know now that the further trouble would have been your gullible agreement to carry out the killing or intended killing of Hobbit or Lam Ching-fung whom you were instructed to do so by the 2nd defendant. I have taken into account all the letters submitted.
I agree with your aunt and the mitigation expressed by Ms Tsang that given your background, including your clear record, young age and perhaps lack of security, you fell in with the wrong people, more particularly, when you met the 2nd defendant online. You were young and ignorant and blinded by romance. You were clearly influenced by D2, Stephen So, who was some 10 years older than you, who was a university graduate. I have observed you give evidence, I found you to be an honest witness although it is not my position to say so but the jury’s.
In January 2018, the 2nd defendant knew, as you said in evidence, that you had an affection for him, you had fallen for him. He asked and you agreed to be his “SP”, his sexual partner. You agreed to this on his conditions that you would not be girlfriend/boyfriend, that you would only have sex with him. The first time you had sex with him, he took you to the abandoned school in Shing Ming Primary School, not a conventional nor a very comfortable place. That demonstrates to me how you, defendant, were blind and green in your adoration of D2. Quite clearly, D2 took advantage of you. He knew you admired him.
From the evidence in the trial, it is clear that D2 manipulated you to do all his dirty work for him, including possessing the arms and ammunition for him, so that he would not be found with them should he be arrested by the police. You foolishly agreed to take these arms and ammunition. Stephen even admitted to you that should he and the 1st defendant David be arrested later, these things would not be found and therefore they should be kept with you for the time being. This shows to me your immaturity and ignorance of the seriousness of the consequences in breaching the law.
I turn now to the law itself in regards sentence to these two offences.
You have pleaded guilty to an offence of possession of arms and ammunition without a license, the two charges. A very comprehensive judgment on the possession of arms and ammunition was given by the Court of Appeal in the case of Tsiang On Yan [2009] 5 HKLRD 100. That is a recent case handed down by the Court of Appeal on this offence and a very comprehensive case considered by Zervos JA, who gave judgment for the court in that case. He considered many of the authorities prior to that case, possession under section 13 and the appropriate starting point for this offence and the facts which may warrant a departure from the starting point.
At paragraph 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. At paragraph 45 the court said:
“It seems clear that a person in possession of firearms with loaded ammunition or firearm with ammunition capable of immediate use, a starting point of 12 years’ imprisonment would be appropriate.”
The court went on to consider in that case another case, which is Chan Chi Fun, where Chan Chi Fun stated:
“In determining the appropriate sentence, the mitigating and aggravating factors included:
1. The types of firearm and ammunition involved;
2. whether the defendant physically carry the firearm and ammunition;
3. whether the firearm is loaded;
4. whether the firearm has been used;
5. whether the defendant intends to use the firearm for legal purposes;
6. whether the firearm and ammunition are properly stored or whether they are accessible by offenders;
7. whether the defendant has a clear record.”
Still referring to Chan, the court at paragraph 47 said:
“The court went on to emphasise the level of sentence was dependent on the sentencing view or the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstances of the case, the defendant’s background and the possibility of the arms and ammunition in question.”
At paragraph 48, Jervos JA went on to say:
“In light of the stringent gun control regime in Hong Kong, it is hard to imagine why a person would have an unlicensed firearm and ammunition in his possession other than for them to be used for a criminal purpose. A firearm with ammunition is a lethal weapon and a serious danger to the public. It is for this reason, depending on the nature and quantity of the firearms and ammunitions involved and the circumstances in which the offence was committed, that a starting point of 12 years’ imprisonment would be appropriate.”
Zervos JA then went on to observe the difference of the provisions in the ordinance. At paragraphs 49, 50 and 35 in the case of Tsiang.
“The offence provisions are structured so that for simple possession of arms or ammunition without a licence, a defendant is charged under section 13. A maximum penalty of 14 years is imposed while possession of arms and ammunition that are used or intended to be used to endanger life or commit a crime, a maximum penalty of life imprisonment is imposed.”
And that he was referring to sections 16, 17 and 18 of the ordinance.
The court went on to observe:
“The more serious offences where a person has in his possession arms and ammunition that is used or intended to be used to endanger life or for some other criminal purpose, the penalty is a maximum known to law of life imprisonment.”
He went on to say at paragraph 52, Zervos said that:
“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 warrant a reduction.”
Ms Tsang mitigating on behalf of the defendant in this case has accepted that a sentence of 12 years’ imprisonment after trial is the norm. She has not suggested there are any special features that warrant a reduction in that starting point.
In this case, Ms Chak was in possession of the firearm and ammunition in Count 2, that is, the pistol and 49 bullets which were given to her by the 2nd defendant. On instructions given by the 2nd defendant, she brought this gun to be test fired on 30 December 2018. It was at the abandoned school in Tai Wo where the 2nd defendant test fired the gun and that was at Shing Ming Primary School. It was fully loaded and fired by the 2nd defendant at a wooden board in the presence of Chak.
On 1 January 2019, police officers went to the abandoned school and found the wooden board with a bullet hole in it and a discharged metal golden bullet head. On the same day, a cartridge was recovered at Tsui Wo House in Tai Wo Estate where D2 lived. D2 told her he did not expect it to be so loud and fled the scene immediately afterwards. After that, it was she who took the gun and the bullets back home. That was what was found in possession when the police arrested her on 1 January 2019.
Therefore, the level of sentence is dependent on the sentencing court’s view or the potential risk posed by the arms and ammunition in the defendant’s possession, taking into account the circumstance of the case, the defendant’s background and the possibility of the arms and ammunition in question.
In this defendant’s evidence in 331 of 20, it was revealed that D2 Stephen had instructed her to use this gun found in her possession to kill Hobbit Lam Ching-fung, the intended victim in 331/2020. I note specifically this is evidence which is not to be used as an aggravating factor in this case. It is just for background as to why this pistol was still in her possession and why the 2nd defendant went to test fire the gun, that is, that Chak had this possession of this gun which she had intended to use it for an illegal purpose. Bearing in mind the quantity of arms and ammunition in her possession and in fact that she had carried the gun in public on 30 December to be test fired, and the gun had been used and the arms, and ammunitions were stored at her house when the arms and ammunitions were not locked but just kept in her bedroom wardrobe, and the fact she was present when one of them was test fired, I have considered these factors to be aggravating factors. I would therefore enhance her sentence by 1 year from the usual starting point of 12 years.
Defendant, I take into account the principle of totality. Had you been convicted after trial, I would have taken a total starting point of 13 years’ imprisonment. The strongest mitigating factor is your early pleas of guilty at the first opportunity before the Eastern Magistracy. For that, of course, the usual discount would apply and that is a one-third discount.
You had, as I mentioned, given assistance to the prosecution in this case by giving evidence against the 1st and 2nd defendants. The fact that the 1st defendant was not convicted does not equate to your evidence not assisting the prosecution. The case against the 1st defendant was very different from that of the 2nd defendant. In any event, Mr Cheung, Counsel on fiat, as stated for Ms Tsang for you, accepts that the evidence you gave for the prosecution did assist the prosecution and you did try your best to assist the prosecution. I agree.
The Court of Final Appeal in Z v HKSAR [2007] 2 HKC 265 recognised that where the defendants have not only given information but have proceeded to give truthful and material evidence, a usual discount would be one of 50 per cent including the one-third reduction for a plea of guilty. It is my view that you do warrant a 50 per cent discount.
Defendant, for Count 1 and Count 2, had you been convicted after trial, I would have taken a starting point of 13 years’ imprisonment. Giving you the 50 per cent discount in relation to each count, that term is reduced to one of 6 years and 6 months’ imprisonment. I shall order each term of imprisonment to run concurrent to each other.
So that will mean that you shall be sentenced to 6 years and 6 months’ imprisonment.