HKSAR v. SINGH JAGJIT

DCCC 194/2024

[2024] HKDC 1948

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 194 OF 2024

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REASONS FOR SENTENCE

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1.  Mr Singh pleaded guilty before me to the following 2 charges.

2.  Charge 1 is Possession of arms without a licence, contrary to section 13 of the Firearms and Ammunition Ordinance, Cap 238.  Particulars are that he, on 23 June 2023, at Flat B, 3^rd Floor, Kam Kok Mansion, Nos 82-84 Kimberley Road, Tsim Sha Tsui, Kowloon, in Hong Kong, had in his possession arms, namely 3 stunning devices, without a licence.

3.  Charge 2 is Possession of offensive weapons with intent, contrary to section 17 of the Summary Offences Ordinance, Cap 228.  Particulars are that he, on same date, at same place, in Hong Kong, had in his possession offensive weapons, namely one extendable baton, 3 swords and one pepper spray, with intent to use the same for any unlawful purpose.

Facts admitted by Mr Singh

4.  On 23 June 2023, at about 10:26 am, the police intercepted Mr Singh after he just came out from Flat B, 3/F, Kam Kok Mansion, Tsim Sha Tsui (“the Flat”).  Mr Singh opened the door of the Flat with his key to let the police in for a house search.  There was no one else in the Flat at that time.

5.  The Flat had 4 bed rooms, namely Room A, Room B, Room C and Room D.  The police found and seized the following items:-

From Room A

(a)  One extendable steel baton (24 cm long when retracted, 65 cm when extended)  in a drawer of the bedside cabinet;

(b)  One sword (87 cm long including the handle of 12 cm)  with sheath inside the wardrobe;

From Room B

(c)  One sword (65 cm long with no handle, and with 10 cm of its hilt wrapped in gauze)  between the end of the bed and the wall;

From Room C

(d)  One sword (64 cm long including the handle of 10 cm)  on top of the wardrobe;

From Room D

(e)  3 stunning devices (two 8.5 cm long (“EUT1” and “EUT2”)  and one 17 cm long (“EUT3”))  under a pillow on the bed; and

(f)  One pepper spray under a pillow on the bed.

6.  Upon arrest and caution, Mr Singh admitted that all the items belonged to him.  In the subsequent cautioned VRIs, Mr Singh admitted that he lived alone in the Flat which was owned by his parents.

7.  EUT1 had a peak-to-peak pulsating voltage of 19,652 Volts and was capable of generating 768 high voltage pulses continuously in 3 seconds.

8.  EUT2 had a peak-to-peak pulsating voltage of 18,797 Volts and was capable of generating 615 high voltage pulses continuously in 3 seconds.

9.  EUT3 had a peak-to-peak pulsating voltage of 10,722 Volts and was capable of generating 525 high voltage pulses continuously in 3 seconds.

10.  Dr Poon Chung Yan, Carmen, PhD in Electronic Engineering, confirmed that if EUT1-3 were applied to sensitive areas, they can alter heart rhythms, cause severe pain, disrupt blood flow to the brain and/or stimulate motor neurons, resulting in stunning and disabling effects on the subject.  EUT1-3 were portable devices which are designed or adapted to stun or disable a person by means of an electric shock applied either with or without direct contact with that person.  The 3 stunning devices fell within the definition of arms under section 2 of the Firearms and Ammunition Ordinance, Cap 238.  Mr Singh did not hold a licence to possess such stunning devices.

11.  The pepper spray was equipped with an operating button associated with 2 nozzles.  Orange stains were found on the nozzles, and were found to contain capsaicin and dihydrocapsaicin.  Capsaicin and dihydrocapsaicin were able to elicit a burning sensation on the soft mucosal tissues.

12.  Mr Singh now admits that at the material time, he had in his possession offensive weapons, namely the extendable baton, the 3 swords and the pepper spray with intent to use them for unlawful purpose.

Criminal record

13.  Mr Singh has 4 previous convictions, none similar.  Although there exists a live suspended sentence of 10 months’ imprisonment, it was only passed on Mr Singh after his commission of the present offences.

Antecedents

14.  Mr Singh, born in Hong Kong, is aged almost 46 (45 at the time of the offences); educated to college level in India.  He had previously been a driver.  He was unemployed at the time of arrest.  Mr Singh’s parents and siblings are all living overseas.  Mr Singh got married in 2001 and became divorced in 2003.  He was living alone in the subject premises.

Mitigation

15.  Ms Nisha Mohamed of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Singh.  The following is a summary of the mitigation submissions.

16.  Mr Singh pleaded guilty to the charges showing his remorse.

17.  Mr Singh had previously worked in his father’s business but in 2006 he left the company and only had short occasional employment since then.  It was during this latter time that he had mixed with some friends and committed the offences of Robbery and drug-related offences.  Most of the time he remained unemployed and relied on monthly allowance from his father of $20,000.

18.  In relation to the Charge 1 offence, the sentence is dependent on the facts of each case.  There are no guidelines/‌tariffs for such cases.  It is not disputed that an immediate custodial sentence will be imposed.  The more serious cases suggest the likely starting point could be 30 months’ imprisonment.

19.  The Court of Appeal in HKSAR v Mohamed P Shafik, CACC 224/2014, at paras 30-32, listed the sentencing considerations for offences of this nature: (a)  the need for deterrence which required an immediate custodial sentence; (b)  the starting point had to be considered in the light of the facts of each case, as there was no tariff for such cases; and (c)  while the court would take into account all the relevant circumstances of the case, important considerations included (i)  the power of the weapon in terms of the voltage that it is capable of discharging, (ii)  whether there is evidence that the offender or some other person has used or may use the weapon for an unlawful purpose or to facilitate an unlawful activity.  The Court went on to say that even though there may not be present an intent established on the part of the offender to use the weapon in any such unlawful way, where there is a real risk in the circumstances that the weapon will fall into the hands of someone who will use it for such purpose, that is also a factor which will result in a higher starting point of sentence.

20.  The Court of Appeal also took the opportunity to examine the facts of the two previous similar cases, namely HKSAR v Li Hung Kwan [2003] 1 HKLRD 204, and HKSAR v Fan Kwok Wai, CACC 264/2005, unreported, 10 October 2005, from which some general principles were derived.

21.  Ms Mohamed also referred to a District Court case HKSAR v Ng Kam Hung, DCCC 223 & 1074/2018, for comparison purpose.

22.  It was submitted that there is nothing to suggest that there was any risk of the stun guns falling into the hands of others as they were found under his pillow in his own bedroom.

23.  Regarding the Charge 2 offence, it was submitted that Mr Singh is a Sikh; that one of the features of the Sikh religion is the sword; that two of the subject swords (those in Rooms B and C)  were symbolic swords of the Sikh faith and were not sharp; that only the remaining sword (that in Room A)  was sharp.

24.  It was further submitted that such cases could be heard in the magistrates’ court.  Ms Mohamed referred to two magistracy appeal cases HKSAR v Han Shuo Humphrey, HCMA 134/2020 (appeal against sentence), and HKSAR v Sam Ka Lam, Sam, HCMA 282/2020 (appeal against conviction).  In particular, in the first case, the Court of First Instance, exercising its appellate jurisdiction, provided at para 36 of the Reasons for Judgment a non-exhaustive list of matters to be considered by a sentencing court when dealing with this type of offence:

(a)  The nature and size of the weapon;

(b)  The potential harm it is capable [of causing];

(c)  The circumstances and intent of possessing the weapon;

(d)  The quantity of the weapon; and

(e)  How it was possessed, ie whether it was concealed or easy to be used.

25.  It was submitted that the weapons were all found in his Flat at various locations and not in public; that there is nothing to suggest that he was thinking of using the weapons in public; that the number of weapons was not substantial.

26.  Ms Mohamed submitted that the court could adopt concurrent sentences as the offences were committed on the same day and at the same place, albeit in different rooms.

27.  Ms Mohamed further submitted that Mr Singh’s family have asked him to go to USA to help them with their motel business.

28.  Ms Mohamed submitted a mitigation letter written by Mr Singh himself for the court’s consideration.

29.  Lastly, Ms Mohamed urged the court to adopt a lower starting point for both charges in the range of 20-24 months’ imprisonment.

30.  Upon enquiry, Ms Mohamed informed the court that according to instructions, the stun guns were for the purpose of self-defence.

31.  Also upon enquiry, after taking further instructions, Ms Mohamed informed the court that there in fact were two marriages of Mr Singh and both ended in divorce; that the reason why Mr Singh has not earlier said anything about the second marriage was that it was an arranged marriage and he did not particularly want to focus on it.

Sentence

32.  I have seen a photo album consisting of 50 photographs showing the subject premises and the exhibits, attached with a sketch of the subject premises with locations of the exhibits marked thereon.  I have also examined the three sword exhibits in their respective boxes with one side in open view.

33.  Prosecution informed me by letter dated today that Mr Singh committed the present offences whilst on bail for two other cases with police references PH/22002228 and TST/23013024.  Needless to say, this is an aggravating factor for both of the present offences.

34.  The maximum penalty for the Charge 1 offence is a prison term of 14 years and a fine of $100,000.

35.  The maximum penalty for the Charge 2 offence is a prison term of 2 years and a fine of $5,000.

36.  On Charge 1, one is dealing here not with one stun gun, but three.  The numbers speak louder than Mr Singh’s claim that they were for self-defence purpose.  Moreover, the fact that the stun guns were kept together with the pepper spray which Mr Singh has openly admitted that he kept it with intent to use it for unlawful purpose calls for an irresistible inference that the three stun guns were there for future unlawful use.

37.  The voltage power of the three stun guns ranges from more than 10,000 volts to almost 20,000 volts.  They belong to the medium range of voltage for weapons of this sort (see Fan Kwok Wai, supra).

38.  I am of the view that for Charge 1, the appropriate starting point is 3 years’ imprisonment.

39.  On Charge 2, the number of offensive weapons was not small.  Mr Singh had them with intent to use them for unlawful purpose.  The size of the swords was huge.  Each of them has a pointed tip that could easily pierce into human skin even if two of the swords were said by the defence to have non-sharp blades.  Needless to say, the steel baton and the pepper spray are also capable of causing a lot of harm on the body.  Most of the items under Charge 2 were not placed in open view.

40.  For Charge 2, I am of the view that 1 year 9 months’ imprisonment is the appropriate starting point.

41.  Because of the aggravating factor aforesaid, each of the starting points is enhanced to the extent of 3 months.

42.  Mr Singh pleaded guilty to the charges in good time.  He is entitled to the customary 1/3 sentencing discount.  There are no other mitigating factors of weight that could earn him any further reductions in sentence.

43.  Although the offences were committed on the same day and at roughly the same place, each adds to the gravity of the other in terms of quantity and potential harm the weapons could cause.  I am prepared to order only partially concurrent sentences.  In doing so, I will take into account the totality principle.

(Mr Singh, please stand)

44.  On Charge 1, the sentence is 26 months’ imprisonment.

45.  On Charge 2, the sentence is 16 months’ imprisonment.

46.  I order that 6 months of the sentence on Charge 2 are to run consecutively to the sentence on Charge 1, making an aggregate sentence of 32 months’ imprisonment.

47.  For the avoidance of doubt, I declare that I have not activated any part of the suspended sentence.