HKSAR v. SZE SUEN-TIN AND ANOTHER

CACC 208/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 208 OF 2002

(ON APPEAL FROM DCCC 686 & 1141 OF 2001 & 113 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 30 April 2002, the Applicants (D2 and D4 respectively) were convicted, following a trial in the District Court before Deputy Judge A. Yuen, on a joint charge of conspiracy to handle stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap. 210, and sections 159A and 159C of the Crimes Ordinance, Cap. 200. They were each sentenced on the same day to four years and six months' imprisonment. They now seek leave to appeal against conviction and sentence.

2. Originally, a total of seven defendants appeared on the charge sheet relating to this matter. D1 and D7 were alone charged with a conspiracy to steal (charge 1). D3, D5 and D6 were jointly charged with the same conspiracy (charge 2) as the Applicants in these proceedings. All of these co-defendants in both charges were acquitted.

3. The second charge on which D2 and D4 were alone convicted alleged that between 26 and 28 April 2001, they conspired with their co-defendants, and with others unknown, dishonestly to undertake or assist in the retention, removal, disposal or realization of 6,400 stolen computer hard disks, the property of Seagate Technology (Shenzhen) Limited, or dishonestly arranged to do so, knowing or believing the same to be stolen goods.

4. The broad background to the prosecution's case was largely undisputed and was set out by the trial judge in these terms:

"2. Evidence revealed that in the afternoon of 26 April (2001) ... 13 pallets of computer hard disks consisting of a total of 10,400 pieces with a value of US$77 per piece were delivered from Shenzhen to the Fritz Air Freight (HK) Limited at Chek Lap Kok Airport. The goods were received by Fritz on behalf of Geologistics Limited which would then later ship the goods to the Netherlands by plane.

3. At around 7.30 pm on 26 April (2001), three men arrived at the warehouse of Fritz, one of whom represented himself to be authorised by Geologistics to pick up the goods. This man signed his name and stamped a company chop of Geologistics on the receipt. As a result, eight pallets, that is a total of 6,400 pieces of hard disks were handed over to this man. It turned out that this man was not from Geologistics and the company chop used was in fact an outdated one. D1 and D7 were later confirmed to be two of the three men.

4. After picking up these goods, they were delivered directly to D2 and D4's company ('Hang Kam') situated at B13, 3rd Floor of Sheung Shui Plaza. The time when these goods arrived at the company was around 10 pm of the same evening. At around 8.30 am the next morning, that is 27 April (2001), a total of 106 boxes of these goods were delivered to different places including Sheung Shui Centre and Ka Fuk Estate in Fanling.

5. Madam Chin Ying, PW14, resided at Ka Fuk Estate. She gave evidence that on the morning of 27 April 20 boxes of goods were delivered to her place for storage. D2 told her that because several holidays were approaching it would be safer to store the goods in her home rather than leaving them in D2's company in order to avoid possible burglary.

6. On 28 April (2001) .... police searched D2's company and found amongst other things 24 boxes, a total of 1,008 pieces of hard disks inside the company. On 30 April, police searched PW14's home and found the 20 boxes, a total of 840 pieces of hard disks therein. The rest of the hard disks were not recovered." (Appeal bundle pp. 16-17)

5. In his defence, D2 testified that the company, Hang Kam, which he had started with D4 in about February 2001, although it was first registered on 15 March 2001, dealt in mobile telephones and computer parts. He said that when clients on the mainland ordered from companies in Hong Kong his company would receive instructions to collect the goods on their behalf. D2 would then unpack and repack the goods in order to reduce their bulk before they were distributed to couriers for delivery to the mainland. He produced various documents for the purpose of demonstrating that his company, where he had responsibility also for the accounts, had conducted legitimate business in the past. In regard to events directly relating to the present matter, D2's defence was summarised by the judge in the following way:

"D2 said it was around 10 pm on 26 April (2001) that he returned to his company where he found D3, D4 and a male chatting. D4 said he had to bring a sample to the mainland for his client's inspection. The sample was a computer hard disk.

13. As a result, D2, D4 and D5 went together to the mainland leaving D3 and the male behind. Record of the Immigration Department show that D2 and D4 left Hong Kong through Lowu at around 10.37 pm and they returned at around 11.06 pm. At Lowu D2 testified that D4 talked to his mainland client, a Mr Wong. Later on D4 handed two wads of bank notes to D2 and D5 and they left for Hong Kong. The time was around midnight when the three returned to their office. After that, D2 had to take care of some other matters and he left the office.

14. At 1.30 am on 27 April he returned and started to help the unpacking and repacking of the hard disks. He worked overnight until 7 am to 8 am in the morning. Then according to the instructions of D4, D2 arranged to transport 106 boxes of the hard disks to various places, including Sheung Shui Centre and Fanling. Sheung Shui Centre was the home of one of the couriers and Fanling was the home of PW13 and PW14.

15. Around midnight of 27 April, D2 was arrested at his home. D2 said he had no knowledge that these were stolen goods, nor the circumstances of the transaction raised any suspicion on his part." (Appeal bundle pp. 18-19)

6. D4, who also gave evidence, described his responsibilities at Hang Kam as involving marketing, sales and customer liaison. The judge's summary of D4's defence was that:

"21. On 26 April at around 4.30 pm, D4 received a call from D3 saying that D3 had got a friend with a batch of parallel computer goods for sale. D4 asked D3 to arrange for a sample for D4 to show to his client in the mainland. As a result, D4 met D3 and this 'Ah Bo' (who had approached D3 earlier that afternoon) in his office that evening. 'Ah Bo' told D4 that there was a total of 6,400 pieces of hard disks. D4 then contacted his mainland client and immediately left the company with D2 and D5 taking with him the sample back to Lowu where D4 met his client, Mr Wong, in Lowu Commercial Complex.

22. This Mr Wong negotiated with 'Ah Bo' directly over the phone. D4 overheard that the price was settled at $230 per piece and Wong offered D4 a commission of $13 per piece. Then Mr Wong took out a wad of bank notes from his briefcase and handed it to D4. It was a total of $580,000. D4 then divided the money into three portions, handing one portion to D2 and another to D5 before bringing them back to Hong Kong.

23. Around 12 midnight, the three of them returned to the Hong Kong office. D4 handed the money to 'Ah Bo'. After 'Ah Bo' left, D2, D4 and D5 did the unpacking and repacking until 7 am to 8 am the next morning. D4 said he did not know nor did he ever suspect that the goods were stolen." (Appeal bundle p. 20)

7. There was no dispute at trial that the goods identified in the charge were stolen. The only real issue to be decided was whether D2 and D4 knew or believed that these goods were stolen when they were handled by them.

D2's application on conviction

8. On D2's behalf, Mr McGowan submitted that the judge, in his Reasons for Verdict, had erred in a number of the findings he made as to fact. These appeared in the passages which read:

"35. First, a total stranger approached the company at around 10 pm in the evening offering to sell 6,400 pieces of computer hard disks, the value of each of which was around $1,000 at the material time. This stranger was asking a price of $300 each, far below the price D2's client were buying and the price eventually settled at $230.

36. The stranger demanded for immediate payment in cash and a total amount of money was about $1.47 million. D2 had no idea as to the identity of this stranger, not even his full name let alone his real name. D2 had no idea which company he represented, no name card ever asked for. The only thing D2 knew was the mobile phone number of this stranger.

37. D2 had got no idea as to the source of these goods. Not a single piece of document was produced proving where the goods came from and what is the true price. It seems that it was never D2's concern as to what would happen if these goods turned out to be defective or fake. Money, that is $580,000, changed hands even before D2 or D4 had any opportunity of checking the quantity and quality of the goods, save and except one sample out of 6,400." (Appeal bundle pp. 23-24)

9. The errors which Mr McGowan alleged were contained in this passage were said, with the exception of the price of disks, to have specific application to D2 and related to the reference to a "total stranger" ('Ah Bo') having approached the company offering to sell 6,400 hard disks which the judge commented were worth "around $1,000 each at the material time"; the finding that "no name card was ever asked for" and that "the only thing D2 knew was the mobile phone number (of this stranger)"; that D2 had "no idea as to the source of these goods" and that it seemed as if "it was never D2's concern as to what would happen if these goods turned out to be defective or false". One other finding which was said to have been in error appeared in the passage in paragraph 4(5) (above), containing the "largely undisputed" background to the case, where the judge said that it was D2 who told PW14 that the goods which were taken to her home would be safer there than in the company's premises from a burglary point of view.

10. Dealing with the first of these points, D2 was asked if he had known the man (referred to by D4 as 'Ah Bo') who had come to his company's premises at night on 26 April 2001 with the stolen goods to sell. D2 replied that he had not seen him before. Whilst, as Mr McGowan accepted, it may be that D4 had been talking to 'Ah Bo' before D2 arrived at the company's premises on the night of 26 April 2001, this did nothing to diminish the accuracy of the judge's description of 'Ah Bo' as being a total stranger to D2.

11. Turning to the value of the computer hard disks, it had been agreed at trial that the "value" (whatever that term in the present context meant) of the stolen items was US$77 (approximately HK$600) for each disk, representing a total value for 6,400 disks of about HK$3,840,000. The judge had spoken of this in the "undisputed" background we have already set out. However, he also spoke of a value of around $1,000 for each computer hard disk in the following context:

"33. These 11 transactions took place from the end of March to mid-April last year, that is roughly over a period of three weeks. From these transactions, one can see that the number of hard disks the company normally dealt with ranged from 100 pieces to several hundred pieces each time. The amount of money involved ranged from $50,000 to $550,000 each time. One can also get some idea as to the price of hard disks in March and April last year. For hard disks of 10 gigabytes, it was around $500 each. One can see from page 18, 19 and 21 of the defence bundle. For hard disks of 20 gigabytes, the price was around $650 to $700 each. One can see from page 18, 22 to 25. For hard disks of 30 gigabytes, the price was around $900 each. One can see from page 20, 22, 25 and 26. For hard disks of 40 gigabytes, the price was around $1,000 each and one can see from page 26.

34. One should note that these were prices D2's mainland clients were offering. We can also see that the higher the speed, the dearer the price. In this case the hard disks involved were of 40 gigabytes. In this case there is no direct evidence that D2 knew that these goods were stolen. One therefore has to look at the circumstances of the transaction." (Appeal bundle pp. 22-23)

The judge then continued in the terms we have set out in paragraph 8 (above).

12. It can readily be seen that the judge's valuation at $1,000 for '40 gigabyte' hard disks was based upon the figures provided in at least one Hang Kam invoice, produced by the defence, which related to a similar kind of hard disk to those with which we are concerned in these proceedings. Furthermore, D4 had accepted in evidence that he had known the value of such disks and that they were worth between HK$3 million and HK$6 million. We do not consider that in adopting D4's testimony the judge had fallen into error although it may be, as Mr McGowan himself had thought, that the $600 valuation represented the wholesale price and that $1,000 represented the retail price. However, as to this, we do not need to speculate. The fact remains that the disks were being offered at $300 each and the price on which a settlement was reached was $230, well under their true value by either standard. Price was, of course, an important consideration and the judge's eventual conclusion on this topic, that $230 was "ridiculously low compared with the ordinary price of $1,000", was justified on all the evidence and would equally have been justified if he had compared it to the $600 valuation given by the prosecution.

13. There were, having regard to the unusual circumstances in which the disks were received, several other equally, if not more, important factors besides price to be taken into account. In saying this, we have not lost sight of Mr McGowan's point that a bulk purchase such as this would also most likely have lowered the price.

14. As to most of the other matters raised under this ground, Mr McGowan complained that the evidence supporting the case against D2 on which the judge relied to find him guilty had arisen from the testimony given by D4 purely in relation to himself. However, D4's evidence was highly relevant in the broad context of what had been said and agreed in the course of the alleged conspiracy between D2 and D4 with others and the judge was entitled to take it into account when looking at the overall picture against D2. Factually, save on the last of the matters raised in this ground, the judge had been correct in the findings he reached and if, as seems likely on the last point, the judge was wrong about who told PW14 that the goods taken to her house would be safer from burglary than at the company's premises, it was a matter of little consequence. D2 had driven to PW14's house with some of the twenty boxes which were taken there. His explanation for this was that a space had to be cleared at the company for further goods to be stored which were expected that day. Leaving aside the abundance of space at the company's premises which is to be seen in the photographs or the fact that apart from this transaction all previous ones had involved comparatively small numbers of boxes, Mr McGowan was nevertheless strictly correct in saying that D2 had denied speaking to PW14 and in pointing out that it was D4 who had admitted speaking to her. Of far greater significance was the fact that within hours of the boxes of computer disks arriving at the Applicants' company's premises, many of them, once new wrapping had been put on them, were quickly removed to other places for storage. In this context, out of the 6,400 computer hard disks which found their way to Hang Kam, only 1,848 were recovered by the police.

15. The other features of the case, applying not only to D2 but also to D4, were summarised by the judge as follows:

"38. D2 and others worked overnight immediately following the transaction in unpacking and repacking the goods in order for them to be distributed to couriers. Early next morning 106 boxes of these goods were distributed to various places for storage. Judging from these circumstances could it be said that these goods were bought by D2's company on behalf of the mainland client in the ordinary course of business? The short answer is no.

39. This transaction was way out of normal when compared with other proper and legitimate transactions D2 had done on behalf of his clients. Not a single piece of document relating to these goods were produced by the seller. The identity of the seller remained a mystery to D2 and D4. The bulk of goods was of a huge quantity and the value of goods also of vast amount when compared with the past dealings.

40. Furthermore, everything was done in a rush. 10 pm in the evening 'Ah Bo' first met D4 in the company. 10.30 pm, D2, D4 and D5 went to the mainland to collect money. 11 pm, they returned to Hong Kong and then 12 midnight money changed hands, all the goods were already in the company and they started unpacking and repacking the goods. 8.30 am these goods were distributed to various places for storage." (Appeal bundle p.24)

16. We are satisfied that there was no real substance to the first ground of appeal.

17. In the second ground raised on D2's behalf, it was contended that the judge had not adequately distinguished between D2 and D4's respective roles in the company, particularly when considering how the negotiations on 26 April 2001 with 'Ah Bo' and the 'mainland boss', called 'Wong', were outside the scope of D2's usual responsibilities. It was argued by Mr McGowan that D2's role was to take care of the accounts whereas D4 had to look after clients, which included doing the marketing and the sales. Whilst D2 had conceded that he was in a "level and equal" partnership in the company, D2 had also said that D4 was in charge and that D4 would tell him what to do. In support of this aspect of the case, Mr McGowan relied on the fact that D4, who was a cousin of D2 and three years younger, had been in this sort of business since 1996, whereas D2 had said, in relation to his own experience:

"I'm just in the business for two months and I'm not quite familiar with the operation in the trade yet." (Appeal bundle p. 54)

18. Mr McGowan sought to show that D2 was in reality in a similar position to D5 who, as an employee of the company, had been acquitted. There was, in our opinion, much to distinguish D2's role from the part played by D5. D2 knew the way the business was run from his overall responsibility for the accounts which, in turn, would have enabled him, despite his denials, to understand the value of the commodities in which he was dealing. D2 was, on his own account, aware of the manner in which goods were ordered by customers from the Mainland, and he liaised with local couriers and transportation companies to take goods to the Mainland. D5, on the other hand, was not a business partner and the important distinction between his role and the roles played by D2 and D4 was summarised by the judge in these terms:

".... (D5) was only an employee of D2 and D4. There is no evidence that he had knowledge of computers or its price. The circumstances of the transaction may look suspicious to him yet he was simply carrying out instructions of D2 and D4. Being an employee he may not be in a position to raise any question." (Appeal bundle p. 25)

19. We were not persuaded either that the judge failed to give adequate consideration to D2's role or that in some way the judge may have confused the involvement of D4 in these events with the part played by D2. Accordingly, this ground must also fail.

20. The third ground of appeal raised by Mr McGowan was a criticism of the judge's concluding remark when convicting D2. This was to the effect that he was "satisfied beyond reasonable doubt" that D2 and D4 did agree with 'Ah Bo' to the disposal of stolen computer hard disks. It was contended that it was possible D4 had entered an agreement with 'Ah Bo' before D2 had returned to the company's premises at about 10.30 pm on 26 April 2001 and that D2 may never himself have been a party to it.

21. We were not persuaded by this argument. A conspiracy is usually, by its very nature, an ongoing and continuing offence. It may well be that D4 entered into a conspiracy with 'Ah Bo' at an earlier stage than D2, but D2, before setting off to the mainland on 26 April 2001 with D4 and D5, had seen a man, who could only have been 'Ah Bo', in the office. When D2 returned from the mainland, 'Ah Bo' was still there and, as to this, D2 referred to him in his evidence as "the male who I talked to earlier on".

22. The allegation in the charge against D2 and D4, and the other acquitted co-defendants in charge 2, particularised a conspiracy between themselves and others "unknown" to handle stolen goods. The judge was entitled to have concluded on the evidence he had heard that D2 and D4 had entered into a conspiracy with 'Ah Bo' whose real identity is apparently unknown. However, for present purposes, in law it mattered only that D2 was proved to have conspired with D4 to handle stolen goods and there was overwhelming evidence to that effect. This ground was without substance and fails.

23. The last ground amounted to a complaint that the judge had "descended into the arena" by his lengthy questioning of D2 at the completion of D2's cross-examination. The point was made that "over 40 questions" were asked by the judge and that many were detailed and went beyond what was necessary to clear up ambiguities.

24. Relying on a distillation of the principles emerging from a number of earlier decisions in Hong Kong and in England where similar complaints were made, taken from R v Yeung Mau-lam [1991] 2 HKLR 468 at 473, Mr McGowan laid emphasis on propositions (3), (4) and (5) appearing below which are taken from Power JA's judgment:

"We are satisfied that the authorities establish the following five propositions apposite to our consideration:

(1) Interruptions by their number alone are not decisive;

(2) The quantity and quality of the interruptions must be looked at as factors which react upon each other;

(3) Actual bias on the part of the judge need not be established, it being enough if by his conduct he would be thought by the informed bystander to be taking over the conduct of the case from the prosecution;

(4) Where a judge sits without a jury, the appeal court must ask itself whether a person listening to the case would justifiably have had the impression that the judge had by his questions entered the arena;

(5) The ultimate question for the consideration of an appellate court is whether the judge's conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.

We think it appropriate also to emphasize that a court, when considering the propriety of interventions by a judge, must bear in mind that it is the judge's duty throughout to ensure that a trial is properly and coherently conducted.

As Denning LJ pointed out in Jones v National Coal Board [1957] 2 QB 55, questions must, where necessary, be asked to clear up points which have been overlooked or left obscure, the judge should discourage repetition and should intervene to ensure that he follows the points being made by advocates. In our view, it can be added to these observations that it is the duty of the judge to ensure, at all times, that he understands the evidence of the witnesses and that the witnesses make responsive answers to the questions asked. We further observe that while it is desirable that judicial questioning comes either at the end of cross-examination or, preferably, at the end of re-examination, there may well be circumstances in particular trials which make it proper for the judge to intervene by asking questions at much earlier stages."

25. We have looked with care at the passages in the transcript to which our attention has been drawn. Many of the questions asked by the judge were in relation to one of the invoices which D2 had produced in order to show legitimate business dealings between his company and its customers on a previous occasion. Over twenty questions were first asked in relation to this invoice which the judge had selected as an example to understand D2's business methods. The invoice did not refer to any of the goods set out in the charge of handling stolen goods for which there were, of course, no documents at all. When the judge turned to the events with which we are presently concerned, the following dialogue, consisting of eleven questions, took place:

"Court: Back to the incident on 26 April, do you know how much money in total was handed over to the male?

A. No, I do not know.

Court: Did you ask?

A. Yes, I did. After that, I asked how much was given.

Court: Who did you ask?

A. Sze Tin-tsang.

Court: When was that that you asked?

A. I asked him the following day. I asked how much money was given and I asked for that figure for the purpose of record.

Court: What did D4 tell you?

A. He said that $580,000 was given...........

Court: So by that time you were aware that for a total of 6,400 pieces of hard disks, the total value was $580,000?

A. No, I did not know how much money it was. I only asked him how much money was given to him the night before.

Court: Yes. So when you got the answer from D4, you were aware that for the whole lot of 6,400 pieces of hard disks, D4 handed over $580,000? ....

A. Yes, and that's what I knew. D4 also said that there was an outstanding balance...

Court: The amount unknown to you or unknown to D4?

A. I did not know.

Court: I see. Did you ask?

A. No, I did not ask.

Court: Why not?

A. Well, because normally I just take care of the quantity and as for the value involved, normally I won't pay much attention to.

Court: But I thought it would be for the purpose of record, that's why you asked initially, so why not ask for the balance?

A. Well, I just asked how much money was involved but then I only need to know and I do not need to put it down....." (Appeal bundle pp. 71-72)

26. The midday adjournment followed at that stage and, although the judge asked a few more questions when the trial resumed, these were again aimed at understanding other invoices produced on D2's behalf.

27. It can readily be seen that the judge's questioning amounted to no more than a sensible and justified attempt to clarify some of the matters raised by D2 in his evidence.

28. There was no merit to this ground and it fails.

29. We are satisfied that the conviction in D2's case was neither unsafe nor unsatisfactory. Accordingly, his application relating to conviction is dismissed.

D4's application on conviction

30. The first of D4's grounds advanced by Mr Eric Lau was the same as Mr McGowan's complaint that the judge had made an error when describing the stolen computer hard disks as being worth $1,000 each, leading, in its turn, to the conclusion that $230 as a sale price was "ridiculously low". We have dealt with this point earlier when rejecting its validity.

31. Mr Lau added a number of further points to his original grounds which in our view contributed nothing to D4's application. We do not need to deal with them all.

32. One of these extra grounds was that the judge had relied on parts of the evidence of D3 who, in the result, was acquitted when the judge had not been wholly satisfied about all the evidence given by D3. However, the judge was entitled to rely on any part of that evidence which he could confidently be sure about and he said that he accepted D3's account that "negotiations took place inside D4's company before D4 left for Lowu to collect the money". In fact, it was plain that this had occurred as this was the whole purpose of D2 and D4 travelling to just across the border.

33. It was also submitted by Mr Lau that a combination of factors which had been established against D4 such as working late, repacking the goods, the lack of any documentation, the handling of large sums of cash which were brought from the mainland to Hong Kong late at night and the relocation of many of the boxes containing the stolen computer hard disks, were all accounted for by the evidence given by D4 and to an extent by D2. These may, he contended, have seemed suspicious circumstances in a general sense but they were, in the particular circumstances of this case, not enough to establish that D4 knew or believed the goods were stolen. We did not consider that the judge had overlooked considerations of the kind which Mr Lau raised. The Reasons for Verdict were not only extremely thorough, they were also balanced and fair. There was no merit in any of Mr Lau's further grounds.

34. Accordingly, D4's application, so far as it relates to conviction, is dismissed.

Sentence applications

35. In passing sentence, the judge said:

"1. You are both convicted after trial of one count of conspiracy to handle stolen goods, in this case 6,400 pieces of computer hard disks involving the value around HK$3.8 million.

2. Evidence revealed that the theft of these $3.8 million worth of hard disks took place at around 8 pm at the airport on 26 April (2001). Two hours later, this batch of goods involving 8 pallets, 320 boxes in total, were delivered to your company. A stranger offered to sell these hard disks to you at an unreasonably low price and both of you agreed to it.

3. Although police recovered 1,848 pieces, the rest were not found. Both of you knew the whereabouts of these other hard disks yet both of you chose not to tell the authorities. This hindered the authorities from chasing the rest of the stolen goods which will inevitably minimise the loss suffered by the victim company.

4. In sentencing both of you, I take into account the mitigating factors put forward by your counsel, in particular that this was a one-off situation. However, the only mitigating factor, as far as I can see, is that both of you have got previous good character.

5. There is an authority produced to me by the prosecution, R v Lui Kam-ming. In this case the defendant pleaded guilty to handling stolen goods and the goods involved were in excess of HK$2 million. The Court of Appeal in that case said that where a defendant had handled goods that had been taken in a major theft, a starting point between 5 and 7 years would be appropriate. In this case, the value of goods is close to HK$4 million. This is certainly a case of a major theft.

6. Taking into account the mitigating factors, I will take a starting point of 5 years in each of your cases. Because of your previous good character, I reduce it to 41/2 years for each of you." (Appeal bundle pp. 28-29)

36. On D2's behalf it was argued that the sentence was manifestly excessive and that the judge had failed to distinguish between the criminality of D2 and D4.

37. Mr Lau also contended on behalf of D4 that the sentence was manifestly excessive.

38. The judge had referred, in the course of sentencing D2 and D4, to R v Hui Kam-ming [1994] 2 HKCLR 247 and he accurately summarised in his sentencing remarks what this court had stated in that case. We consider that D2 and D4 were fortunate to have had their sentences reduced to four and a half years from a starting point of five years' imprisonment which was richly deserved. This was professionally executed handling on a grand scale for which there was no real mitigation. They showed no remorse and gave no assistance to the authorities in recovering any of the missing goods.

39. These applications are dismissed.