R. v. LAU KWOK YUEN

No. 235 of 1996
(Criminal)

IN THE COURT OF APPEAL

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J U D G M E N T

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P. Chan, J. :

1. The applicant was the 1st defendant in the court below. He was convicted on 1st April 1996 of and sentenced on 18th April 1996 for handling stolen goods. He lodged an application for leave to appeal against sentence on 26th April 1996. And it was approximately five months later that he lodged another application for leave to appeal against conviction out of time. Before us the applicant abandoned his application for leave to appeal against conviction out of time.

2. The prosecution case against him was this.

3. In the early morning of 28th July 1995, a tractor and a crane truck were parked at different places in the New Territories but were later found missing. In the early hours of 29th July 1995, another lorry was also found missing. These losses were reported to the police. In the afternoon of 29th July, the driver of one of the vehicles passed by the Wing Hang Garage in Yuen Long and saw a crane truck with a different registration number parked inside the garage. He identified it as the one he had lost. He immediately reported to the police. The police went to the garage and saw the crane truck. They also found the tractor and the lorry. By that time, these three vehicles had had their registration plates changed.

4. The applicant was the proprietor of the garage. He was arrested and brought to the police station. Later on, the police laid ambush at the garage and arrested two other men who came to collect the vehicles. They were the 2nd and 3rd defendants in the court below.

5. When the three vehicles were found by the police, it was discovered that there were certain changes to the vehicles and there was also some damage to them. It is not necessary to repeat the details of these changes and damage which had been set out in the Admitted Facts. Suffice it to say that those changes were aimed at concealing the original identity of those vehicles and putting them forward as vehicles of a new identity. The damage to these vehicles was done to the tumblers, the locks and the steeling wheels. They should have been very obvious to an experienced mechanic like the applicant.

6. Having heard the evidence from the prosecution witnesses and the applicant, the trial judge convicted him of handling stolen goods. The applicant was sentenced to three years and three months for the offence. Before sentencing the applicant, the trial judge had called for a probation officer's report and was provided with information about the applicant's background. He said that the applicant had received vehicles for the purpose of changing their appearance to allow them to be dealt with further and that these vehicles were likely to be used to go to China. He took the view that these vehicles were clearly of substantial commercial values. He also said that this was a professional and skilful job and without the applicant's assistance in making those changes to the vehicles, the theft of these vehicles would be made much more difficult. The trial judge adopted the starting point of 3½ years and taking into consideration the applicant's family background which was gathered from the report, he reduced the sentence to the one the applicant now faces.

7. In his written submissions, the applicant relied on a number of grounds. The first one was that the trial judge had not paid sufficient attention to his family background; the second was that he had co-operated with the police and given information to them about the 2nd and 3rd defendants in the court below; the third was that there was no evidence of the value of the vehicles.

8. We do not think there is any substance in any of these grounds.

9. The trial judge had, as he indicated in his Reasons for Sentence, obviously taken into consideration the applicant's family background, which included the fact that the eldest son may be out of job if the applicant is imprisoned; that his daughter was then in a training centre, that there are two other children at school and that the applicant is indebted to others including his lawyer. We do not think there is anything exceptional. It also goes without saying that the tractor, crane truck and lorry are, as the learned judge said, of substantial commercial value. It is not necessary to have the actual values of these vehicles for the purpose of sentencing the applicant.

10. The only matter on which we need clarification from the applicant was what sort of co-operation he had offered to the police. It seems that in sentencing the applicant the trial judge did not refer to this. Upon our inquiry, it transpired that the applicant was, together with his employees, taken to the police station at which time he was still maintaining his innocence. He said that he was questioned by the police and was told that if he co-operated with the police, he would receive a more lenient sentence. However, at that stage, the applicant did not admit the offence. He put the blame on other persons and informed the police that about two to three people would be coming between 7:00 or 8:00 p.m. that evening to collect the vehicles.

11. It is quite clear that even without this sort of information, the police would have made arrangements to look for these other persons and to wait for them when they came to collect these vehicles. We do not think the information coming from the applicant would help him in this application. It was not offered to the police as a mitigating factor and would not have assisted the police in any event. We do not think there is anything in this ground.

12. The usual range of sentence, according to the Court of Appeal in R. v. Hui Kam Ming [1994] 2 HKCLR 247, would be between five and seven years for handlers who received proceeds of major thefts and the level varied with the value and quantity of the theft. In fact, the Court had also remarked that sentences for this type of offence had been unduly lenient. We take the view that the 3½ years starting point and the ultimate sentence of three years and three months are not in any way manifestly excessive or wrong in principle. The application must be refused.

Power, Acting C.J.

13. For the sake of completeness, I will add that this Court received a letter from the step-daughter of the accused some two days ago which is a touching letter urging family considerations but they are such that we cannot properly allow them to be given weight when considering the propriety of the sentence.