HKSAR v. KAN CHI WAH

CACC 58/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 58 OF 2001

(ON APPEAL FROM DCCC NO. 1024 OF 2000)

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J U D G M E N T

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1. When the application was first listed for hearing, the only point which the Applicant relied on to say that the sentence of 3 years' imprisonment was excessive related to the value of the property he had handled. The judge had been told that the value of the 112 items of leather goods which had been stolen (leaving aside the $800.00 in cash) came to about $560,000.00. The Applicant said that the judge had been given incorrect information, and that their correct value was about $100,000.00. I adjourned the hearing of the application for two weeks to enable the matter to be investigated.

2. In fact, it now transpires that the figure given to the judge was correct. In giving that figure to the judge, the prosecution had relied on the second statement of the supervisor of the shop from which the goods had been stolen. That statement (which was dated 13 January 2001) gave the original sales price of the goods before they were subsequently reduced. Their original sales price was $555,406.00. The Applicant had been relying on her first statement (which was dated 6 September 2000) which gave the cost price of the goods. Their cost price was $110,000.00 odd. When the judge asked what the value of the goods stolen had been, the prosecution was entitled to give her the original sales price rather than the cost price or the reduced sales price (which photographs of the goods show the items had been reduced to).

3. It would, I think, have been more appropriate for the judge to have asked for the value, not of the goods stolen, but of the goods recovered, because it was only the goods recovered which the Applicant had been charged with handling. However, the value (i.e. the original sales price) of the goods recovered came to $477,718.00, and the difference between that sum and the value of the goods stolen was not such as to make any difference in sentence.

4. The Applicant has told me that he had never seen the supervisor's second statement, and that if he had been aware of its contents and therefore aware that the value of the goods were much more than had been set out in her first statement, he would have considered pleading guilty to the charge. But he has not said that he would have pleaded guilty to the charge, and I simply cannot assume that that is what he would have done.

5. In my opinion it is not arguable that 3 years' imprisonment, having regard to the value of the property he handled, was an inappropriate starting-point, and his record of dishonesty and his plea of not guilty took away any mitigation which he might have had. For these reasons, this application for leave to appeal against sentence must be dismissed.