HKSAR v. LAI LIT MAN

CACC 578/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 578 OF 2002

(ON APPEAL FROM DCCC 671 & 721 OF 2002 (CONSOLIDATED)

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J U D G M E N T

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Ma JA (giving the judgment of the Court):

1. On 5 November 2002, the Applicant was convicted on his plea after voir dire proceedings of four charges of theft of motor vehicles. The charges related to motor vehicle thefts that had occurred over a period of two months between February and April 2002. On the same day, the Applicant was sentenced to a total of 4 years for the thefts. A sentence of 2 years 6 months was given for each theft but a portion of the sentences was made to run consecutively, thereby giving a total of 4 years.

2. The four cars were found after a police raid on 29 April 2002 at the premises of the Applicant's co-defendant in Yuen Long. The vehicles and the dismantled parts belonging to these vehicles were found. Following this raid, the Applicant was arrested and, under caution, admitted to stealing the four cars.

3. In passing sentence, Deputy Judge W.C. Li took into account the fact that the offences were serious and that the Applicant's involvement was not a momentary lapse of control. As the learned judge put it:-

"These offences were clearly organised and planned and he was acting in concert with others."

He also referred to the fact that the Applicant did not have a clear record although the only previous conviction was some 9 years earlier in relation to a charge of taking a conveyance without lawful authority for which he was put on probation.

4. The judge took a starting point of 3 1/2 years for each offence and came up with a total of 5 years on the totality principle. This was reduced to 4 years on account of the Applicant's plea albeit after voir dire proceedings.

5. Before us, the Applicant applies for leave to appeal against sentence on grounds which can be summarised as follows:-

(1) The starting point adopted by the learned judge was too high having regard to the authorities, with their special emphasis on the fact that the theft of luxury cars attracted a heavier sentence than other cars as well as the fact that such cars would be exported or might be exported.

(2) Unlike other cases, although admittedly there was some form of organisation between the Applicant and the co-defendant (D1), this was not as sophisticated as in other cases in which similar sentences had been imposed.

(3) The starting point of 5 years for the thefts was excessive given the application of the totality principle.

(4) Insufficient regard was paid to the differences between the Applicant and D1, who were respectively the thief and the handler. The starting point of 3 years 6 months was the same for both persons.

(5) One of the differences was the previous record of both defendants. While D1 had a record comprising 11 previous convictions, the Applicant only had one. That conviction involved a similar offence but this was in June 1993. So, Mr Grounds argues, there was a disparity here. Not only that, reliance is placed on the Rehabilitation of Offenders Ordinance, Cap. 297. Mr Grounds submits that the Applicant should at least be credited with having led a crime-free existence for 9 years, and this is to be contrasted with D1.

6. Attractively though the submissions have been put this morning by Mr Grounds, we are unable to agree with them to allow the present application. We say so for the following reasons:-

(1) As Mr Madigan, for the Secretary for Justice, in his written submissions has submitted, there is no tariff for motor theft offences and, as with most sentencing exercises, much depends on the facts of the particular case.

(2) In the present case, we have already referred to what the judge said about the four thefts being organised, planned and clearly the Applicant was acting in concert with others (namely D1). The plan between the Applicant and the handler (D1) was that the Applicant would steal the cars for D1 to store and then dismantle. The learned judge was right to take this into account in sentencing the Applicant.

(3) The starting point was not in our view unduly high for crimes of this sort having regard to the sentences passed by the courts for organised thefts of motor vehicles. Here I would refer in particular to AG v Chan Sik Ming [1996] 2 HKCLR 154 and HKSAR v Lai Yun Cheong, unreported, CACC 45/1998, 9 July 1999. Both these cases involved the handling of stolen vehicles but, for the reasons that follow, the role of the Applicant as thief can be equated with that of D1 as the handler in the present case. It is also noteworthy that these cases were decided at a time when, according to some statistics produced by Mr Grounds this morning, it would appear that the prevalence of missing motor vehicles had dropped somewhat compared with earlier years.

(4) There was nothing wrong in sentencing the Applicant and D1 using the same starting point. Their involvement was, in our view, joint and similar. In other cases decided by this court, it has been said that deterrent sentences are required for those who engage in the "stealing and disposal" of cars. In R v Chan Hiu Tung [1990] 2 HKLR 34, at 36, Bokhary J emphasised the need to have regard to all the circumstances of the case in apportioning blame for the purposes of sentencing. In the present case, it cannot be said that the role of D1 was more (or perhaps even less) serious than that of the Applicant.

(5) As to the Applicant's previous record, the learned judge was entitled (as is accepted) to look at it. It did involve a similar offence. This was similar to D1's previous record in that he, too, had been convicted once previously of theft, this being in March 1994. We accept that the Applicant has led a more blame-free existence than D1, but in the end are not of the view that the learned judge can be faulted. Of course, the learned judge could not have treated the Applicant as being in the position of someone who had actually a clear record. He took into account the Applicant's previous record but noted that the only previous conviction was 9 years back. As for D1, in referring to his previous record, the judge, it seems, was concentrating on similar offences of which, like the Applicant, there was only one that was committed sometime back. Perhaps D1 could consider himself fortunate in that the whole extent of his previous record was not fully taken into account but this does not enure to the benefit of the Applicant.

7. For the above reasons, despite, as I have said, the attractive way that Mr Grounds has submitted, we dismiss the application for leave to appeal against sentence.