HKSAR v. MA KAM BIU

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

1997, No.764
(Criminal)

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The applicant in this matter faced one charge of handling. The charge particularized that he, on 30th July 1995, dishonestly undertook or assisted in the retention, removal, disposal or realization of certain stolen goods namely 626 rolls of polyvinyl chloride leather material, the property of Ho Chi-leung, by or for the benefit of another, or dishonestly arranged to do so, knowing or believing the same to be stolen goods. He pleaded guilty to that charge and was sentenced to imprisonment for 27 1/2 months. He now seeks leave to appeal against that sentence.

2. The facts show that a group of eight Pakistanis were at a warehouse together with three lorries which had been hired for the purpose of transporting rolls of PVC. These rolls were in fact stolen from the godown of the Fung Yuen Trading Company which was situated at Lot 746 Hung Uk Tsuen, Ping Shan. The value of all of the stolen goods was almost $800,000. The applicant had, it seems, been in association with a dishonest store proprietor in Shenzhen, and it was he, the applicant, who directed the drivers to the godown. His pager number was found when one of the drivers was apprehended. Because of this, although he was not apprehended at the time of the burglaries, he was put on a stop-list and some six months later was stopped while attempting to cross into China. He had, it seems, on the day when the burglary took place, been waiting for the drivers some distance away from the scene. He says that he was promised a reward of $20,000 to $30,000 for his part in the offence.

3. The applicant first appeared on 26th July 1996 when he pleaded not guilty to burglary charges. A full day's hearing followed, afterwards the applicant absconded. He was re-arrested and brought before the court on a handling charge to which he pleaded guilty.

4. Judge Chua when sentencing said:

"The defendant has admitted to his role in this offence. He has told the police that the person responsible for the operation was a man called Chan Ho-shan, and his reward for arranging two lorries to take the PVC to China was $20,000 to $30,000. The defendant, therefore, knew that there was a substantial quantity of stolen goods which were to be taken to China. In this respect, this was not a petty operation.

The defendant has a bad criminal record which started in 1971 with common assault, but it was in 1972 that he had been convicted of three counts of robbery. They cannot have been petty either because the robbery and attempted robbery in 1973 attracted a 4 year sentence. Then there are offences, also dishonest ones, such as forgery, taking conveyance without authority in 1980, 1983, once again in 1983, and a burglary in 1984.

In the circumstances of this case, I think the appropriate starting point for this offence is 33 months. For his plea of guilty, he will receive a 20 per cent discount.

I sentence him to 27 1/2 months. When I give the discount, I am talking approximately 20 per cent. Had you pleaded guilty on 26 July, you would have received 25 per cent discount. That is the sentence I impose on this conviction."

5. The grounds of appeal initially submitted that the starting point of 33 months was too high. However, Mr. Chung, who appears for the applicant, has not pursued that ground. It was then argued that the discount was insufficient. We say without hesitation that the starting point was an entirely proper one. This was a bad offence in which the applicant was fully involved throughout. It was what might be described as "a very professional job".

6. We come then to the only matter in issue which is whether 20% was an appropriate discount to give in the circumstances. Again, we say unhesitatingly that it was. The applicant had not pleaded guilty at the first available opportunity, he had not pleaded when brought before the court at his first trial for burglary. He then absconded. He was arrested. It is noted that he did not surrender himself. He then finally pleaded guilty to burglary. In those circumstances, we think the 20% per cent discount was an entirely proper one.

7. There is nothing in this matter and the application is refused.