HKSAR v. YIP CHI WAI, THOMAS

CACC 8/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 8 OF 2002

(ON APPEAL FROM DCCC NO. 625 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 The applicant was one of two defendants who pleaded guilty before Deputy Judge Livesey in the District Court; D1 to burglary, and the applicant to handling stolen goods. D1 was a security guard employed at a block of serviced apartments at Daisy Court, Mosque Street, and he used security keys, with which he had been entrusted, in order to enter the apartment of one of the tenants who was then out of Hong Kong, and D1 stole a Rolex watch from a drawer in that tenant's bedroom. On the day of the theft and immediately afterwards, at 3:30 in the morning, at Daisy Court, he gave the watch to the applicant, who took it to a pawn shop where he pawned it for $7,000. It had been agreed that the proceeds of the theft would be split between them. When D1 later told the applicant that the police had been notified of the theft, the applicant redeemed the watch from the pawn shop but later pawned it again, and used the proceeds of sale to gamble, won some money, and then redeemed it again. The watch was found by the police in a wardrobe of the applicant's bedroom.

2 D1 was charged with burglary and the applicant with handling stolen property. In D1's case, the judge took a starting point of three years' imprisonment and sentenced him to two years; and in the case of the applicant, she took a starting point of two years' imprisonment, and sentenced him to 16 months' imprisonment. This is his application for leave to appeal against sentence.

3 Two complaints are made. The first is that the judge suggested, allegedly without foundation, that the applicant was, prior to the burglary, party to the scheme to burgle and to sell the find of the burglary, whatever that might turn out to be. The suggestion that the judge's approach on this basis was without foundation is, in the light of the following exchange between the judge and counsel for the applicant, a very surprising contention:

"COURT: ... it was obviously agreed beforehand.

MR CHENG: Yes, I appreciate that. But if I may also invite you to consider in that particular circumstances he is a little bit more not the initiator."

In the light of the facts of the case and the concession made at the hearing, the only surprising fact before us is that this should have been advanced as a ground of appeal. It should not have been.

4 The second ground is that the judge erred in concluding that the case was too serious for the imposition of a community service order. What happened was that the judge was invited to call for a community service order report and she declined to do so, adding that the matter was too serious. Mr Hung, who appears today on behalf of the applicant, relies upon authority to the effect that the mere fact that an offence is serious does not preclude the community service order. The judge did not say that it did. Nor did the judge say that handling offences can never properly be the subject of a community service order. It is obvious to us looking at the proceedings as a whole and her comments as a whole, that the judge took the view that the circumstances of this offence, and this offender, were such that, in this case, a term of imprisonment was required. We cannot say that she was wrong. This was a planned offence, and planned with the advantage of an inside man as thief, a security guard; and whilst it was not the applicant himself who was acting in breach of trust, he acted nonetheless in concert with the thief, knowing full well that the thief was a security guard, and the applicant deliberately benefited it from that fact. That is an aggravating feature. Furthermore, there was little remorse in this case, as evidenced by the fact that once the police were called, the applicant took care to remove the watch from the pawn shop where it had been placed, and even went so far as to pawn it a second time.

5 The application for leave to appeal against sentence is dismissed.