R. v. LEUNG KING FAI

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. This applicant faced one charge of theft which was particularised as follows: that he on 17th July 1994 outside 50-68 Wang Lok Street, Wang Chau, Yuen Long, together with another person unknown, stole a caterpillar excavator, the property of Chan Kai-leung. He pleaded not guilty to that charge, was convicted after trial before District Judge Whaley and was sentenced to imprisonment for 20 months. He originally appealed against both conviction and sentence but has abandoned his appeal against conviction.

2. The facts, although somewhat bizarre, were straightforward. The applicant has arranged for a transporter to take the excavator, which was worth about $400,000, a piece of machinery of considerable value, from Yuen Long to Sha Tau Kok. The driver of the transporter asked the applicant for his identity and he gave it. It was not, therefore, surprising, that the police were able eventually to locate him. He maintained at first that he had acted innocently as the agent of a man called Tsang Kwok-keung but he later admitted that he assisted Tsang in stealing the equipment. In his cautioned statement he said that Tsang had promised him $20,000 for his assistance but that he in fact got nothing.

3. The trial judge when sentencing noted that he was 21 and had a previous conviction for theft. Everything had been said that could be said for him but the judge was not prepared to suspend the sentence considering that a custodial sentence was called for. He did, however, consider a detention centre order but, unfortunately for the applicant, he was medically unfit for such detention. He comes before us today saying that he is remorseful, that he realizes that what he did was wrong, that he was misled and, to an extent, used by his friend and that he has family commitments which he deeply regrets not being able to meet because of the period of imprisonment which he is undergoing. The applicant was undoubtedly used by someone but it must be borne in mind that he was prepared to be so used and, as he now frankly admits, was seeking to obtain money to support his family particularly his sister. It was, given the value of the excavator, $400,000, a serious offence. However, having considered all of the facts, particularly the part played by the applicant, and giving due weight to what appears to be a genuine sense of remorse we are satisfied that the sentence was manifestly too severe. We therefore allow the application, treat the hearing of the application as the hearing of the appeal and vary the sentence to one of 15 months.