THE QUEEN v. CHEUNG SHING KIN AND ANOTHER

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J U D G M E N T

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Penlington, J.A. delivered the judgment of the Court:

1. This is an application for leave to appeal against sentences.

2. The first applicant (D.1) who was also the first defendant on trial was convicted on a charge of handling stolen goods and the second applicant (D.2), who was also the second defendant at the trial, was acquitted on that charge but convicted of being present in a van which he knew was being driven without the consent of the owner. We will deal with his application first.

3. On the morning of the lst March 1988 a police surveillance team saw a van parked at 169 Wai Yip St., Kwun Tong, an industrial building where D.1 had business premises. Five men were seen unloading goods which were later proved to be the proceeds of a robbery from a construction site in Hennessy Rd., Hong Kong. D.2 was one of the persons doing the unloading and D.1 was supervising. When it drove off D.2 was a passenger and D.1 went away in his own car. Both vehicles were stopped and the persons therein arrested.

4. D.2 was sentenced to as term of imprisonment of three months by Hopkinson J. in the High Court. He had no previous convictions. We are satisfied that the trial judge took into account in arriving at that sentence that D.2 participated in unloading the stolen goods, a fact which he was not entitled to consider because the acquittal on the charge of handling those goods must have meant that the jury was not satisfied that he realised that the goods which he was seen to be unloading from the van were stolen.

5. It is submitted that under those circumstances an immediate custodial sentence was wrong in principle for an offence of merely riding in a stolen van. We agree and we allow his application, treat this as the hearing of the appeal and reduce the sentence to one which well enable his immediate release.

6. So far as the first applicant is concerned, he had been for some twenty years in the legitimate business of dealing in building hardware but, apparently from August 1987, he began dealing in stolen building hardware such as locks, taps and other goods. He was sentenced to a term of imprisonment of 2 1/2 years for a series of five such offences committed in August 1987, and that sentence was passed in the District Court in May 1988. while he was on bail for those offences, this present one was committed in March 1988 and he was sentenced for it in November of that year.

7. The background facts upon which he was sentenced were that the people who carried out the robbery had contacted and advised him that they had the stolen goods for sale. He agreed to purchase and the goods were brought to his premises in Kwun Tong and unloaded. They were worth something in the vicinity of quarter of a million dollars and he paid $43,000 for them.

8. The trial judge thought he would be making a very substantial profit and while it might not have been anything like the difference between the actual value and what he paid, no doubt there would have been a good profit for him. We take into account the fact that he committed this offence while he was on bail, which clearly is an aggravating factor, and that the sentence was passed after trial. That sentence was one of 4 1/2 years' imprisonment which in effect meant he received a total of seven years' imprisonment for this series of offences. It is accepted that this present offence was the last in the series. We are satisfied than totality of seven years for a series of handling stolen goods offences is too high, notwithstanding the aggravating factor that this offence was committed while the applicant was on bail. He had no previous convictions before his appearance in the District Court. The total amount received was worth about a$500,000. We think that a totality of five years' imprisonment would have been appropriate. We therefore again grant the application for leave to appeal, treat this as the hearing of the appeal and the sentence will be reduced to one of 2 1/2 years' imprisonment, to be consecutive however with the sentences that passed in the District Court.