R. v. NG YAU WING

IN THE COURT OF APPEAL

1995, No. 209

(Criminal)

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J U D G M E N T

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Litton, V-P, giving the judgment of the Court:

1. This is an application for leave to appeal against sentence. The applicant pleaded guilty before Deputy Judge McKee in the District Court on one charge of theft, contrary to s.9 of the Theft Ordinance and was sentenced to five years' imprisonment.

2. He was 39 years old at the time, married with two young children and had a clear record.

3. What happened was this. On the night of 22 December 1993, which was the winter solstice by the lunar calendar, a sea-going barge loaded with 46 containers worth a total of about HK$39 million was moored at the Castle Peak Cargo Handling Area. The containers were due to be loaded onto an ocean-going vessel the next day. Because it was the winter solstice the barge was left unattended. That night two tugs came and towed the barge away. The applicant was employed by the Wing Fat Tug Boat Company, the company which owned one of the two tugs involved in the theft. In the statement of facts agreed for the purposes of sentence the applicant was described "the land operator" of the Wing Fat Tug Boat Company.

4. In sentencing the applicant the Deputy Judge said this:

"It is clear that the Defendant D2 became involved as a result of his being employed by the Wing Fat Tug Boat Company and his knowledge of marine matters. There is hence an element of breach of trust. D2 was in the position to set up this venture."

5. The Judge took as his starting point 7 years' imprisonment, having regard to the maximum sentence of 10 years for this offence, and giving a discount for the guilty plea and "all other mitigating factors", he reached the sentence of 5 years' imprisonment.

6. The record before this court is somewhat slender, but it would appear that a number of mitigating circumstances were not brought to the judge's attention.

7. The applicant had, until the offence in December 1993, led an exemplary life. He is a good family man and it appears that his father and mother were in December 1993 in very poor health and had to be taken care of medically. This had put the family under considerable financial strain and the applicant was under emotional stress. His father eventually died at the end of February 1994 and his mother died a year later. We are told by counsel in this court that he comes from a closely-knit family and many members of his family are here in court today.

8. The judge in sentencing did not advert to the statement the applicant gave to the police when he was interviewed in January 1994, possibly because this was not before the judge for the purpose of sentence, in light of his guilty plea. It does appear from the contents of that statement that he has made a very full confession and had given details of the plot to the police which presumably assisted the police in the apprehension at least one of the parties.

9. It is an accepted fact in this court that the barge was taken away by the Chinese authorities and the contents of the containers were auctioned. The applicant in fact had received nothing from his participation in the affair. There is no suggestion that the applicant knew the value of the contents of the 46 containers.

10. We have also had put before us a testimonial, not before the judge, from the life-chairman of the Hong Kong and Kowloon Motor Boats and Tug Boats Association, testifying to the effect that the chairman has known the applicant for more than 10 years and is of the opinion that the applicant has always been "a hardworking serious-minded and responsible person, and always enthusiastic to help his friends." He came to the conclusion that the applicant had succumbed to crime through momentary greediness.

11. In our judgment the judge was entirely correct in treating this as an extremely serious offence, and his starting point of 7 years' imprisonment cannot in the circumstances be faulted. But it also appears that a substantial number of matters of mitigation, as we have attempted to outline above, were not put to the judge. Had those other factors been in his mind, we are confident that the discount from the 7 years' would have been considerably more than the 2 years he gave. Exercising our best judgment we quash the sentence and substitute for that a sentence of 3½ years' imprisonment.