R. v. TANG HING WONG

IN THE COURT OF APPEAL

1994, No. 476
(Criminal)

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J U D G M E N T   O F   T H E   C O U R T

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Macdougall, V.-P.:

1. The applicant pleaded guilty to two offences of theft before Mr Candy sitting as a Deputy Judge of the District Court. He was sentenced to 18 months' imprisonment on the first charge and to six months consecutive on the second, making an overall sentence of two years' imprisonment. Both offences were thefts of a serious nature.

2. The first theft was of a 'Lexus' motor vehicle and the second of a Daihatsu Applause sedan . In passing sentence the deputy judge said that he took a starting point of three years' imprisonment for each offence and that in the light of the defendant's pleas of guilty he would reduce each sentence by twelve months. Moreover, as the defendant was already serving a sentence of five years' imprisonment for a robbery committed at a time very close to the commission of the two present offences, the deputy judge allowed a further discount of twelve months' imprisonment.

3. The applicant now complains that he had been willing to give evidence against the accomplice and that the police had promised to inform the court as to his co-operation with them. However, because of his involvement in a traffic accident, the trial of the accomplice proceeded in his absence and the applicant, was unable to testify for the prosecution. Secondly, contrary to their undertaking, the police failed to tell the deputy judge about his co-operation which led to the arrest of the accomplice. The applicant was therefore denied the benefit of a discount in sentence to give effect to that factor.

4. The truth of the matter is that both the applicant and his accomplice were to be jointly tried. It was never intended that the applicant should be used as a witness for the prosecution. Because of the applicant's inability to stand his trial on the due date because of the injury which he had sustained, the deputy judge ordered that there be separate trials. The trial of the accomplice then proceeded in the absence of the applicant. It is clear, however, that when the applicant eventually came before the court and pleaded guilty the deputy judge did not take into account the fact of the applicant's co-operation with the police which led ultimately to the arrest of the accomplice. Indeed, this was because the deputy judge had not been made aware of it by prosecuting counsel. Perhaps this was because prosecuting counsel also had not been told of it.

5. While we accept that the applicant suffers a sense of grievance on this account, we think that the overall sentence of two years' imprisonment for these offences was unduly lenient. It is a notorious fact that car theft, particularly that of luxury cars, has become increasingly prevalent. Those who commit such offences must be severely dealt with as a deterrent to others. Despite the appellant's understandable sense of grievance we have come to the conclusion that even after taking into account his assistance to the police the overall sentence could not properly have been less than two years' imprisonment. In our view, it would be wrong to reduce these sentences. We therefore refuse the application