HUI KAM MING v. R.

IN THE COURT OF APPEAL

1993, No. 471
(Criminal)

______________

______________________________________

J U D G M E N T  O F  T H E  C O U R T

_______________________________________

Macdougall, V.-P.:

1. The applicant, who was indicted for robbery, pleaded guilty before His Honour Judge Pang, sitting as a deputy judge of the High Court, to handling stolen goods. He was sentenced to four years' imprisonment and now applies for leave to appeal against that sentence.

2. The facts of the case were that at about 10 p.m. on the 1 May 1992, a clerk employed by an air freight forwarding company was alone in the company premises when he heard a knock on the door. Thinking that some customers had arrived to collect goods, he opened the door. Three men then burst into the premises, knocked the clerk to the floor, beat him about the head and body and tied, blindfolded and gagged him with adhesive tape. Three more men then joined the original two, went into the company's warehouse and removed four hundred and eighteen sets of mobile telephones and thirty-one uniforms valued in excess of $2m. They loaded the goods onto a van of which the applicant was the driver and which was parked outside the premises. The applicant knew that the goods had been stolen but did not know until after he had driven away with them that his companions had assaulted and tied up a member of the staff of the company. A restaurant proprietor who was familiar with the workings of the company happened to pass by the premises at the time the goods were being removed. Sensing that something was wrong, he noted the registration number of the van and passed that information to the police. The applicant was duly arrested and made two statements under caution in which he admitted that he had participated in the events of the evening by handling the stolen goods. Subsequently the police recovered the uniforms and all but fifteen sets of the mobile telephones.

3. In passing sentence the judge, who had already called for and received a background report on the applicant, stated, inter alia, that he accepted that the applicant's plea was motivated by genuine remorse, that the offence was out of character, - the applicant having no previous convictions -, and that it was not a premeditated offence. By the latter observation, we assume that he meant that the applicant, who was in financial difficulties, had succumbed to the temptation placed his way by a colleague with whom he had previously worked to become involved in the criminal venture. The judge stated that, in view of the mitigating circumstances, he would give a discount of one year from a starting point of sentence of five years.

4. Mr. Steve Chui, who appeared for the applicant in this court but not in the court below, submitted that the judge erred in taking five years a starting point for sentence and in failing to give sufficient weight to the mitigating factors or to consider all relevant factors. He also submitted that the applicant had been unjustly treated in that a co-defendant who had pleaded guilty to the robbery had received the same term of imprisonment as that passed on the applicant. While we find it surprising that, notwithstanding the co-defendant's plea of guilty, he received a sentence of only four years' imprisonment. A sentence of at least seven years' imprisonment was called for in his case. We do not consider however that this factor is relevant to our consideration as to whether the sentence passed on the applicant was manifestly excessive or wrong in principle.

5. By taking a van to the location to which he was directed, the applicant plainly expected to receive a large quantity of stolen goods. And his expectation was met when the goods were loaded into his vehicle. Professor Thomas in Principles of Sentencing, 2nd Edition, states that sentences in the range of five to seven years are usually reserved for handlers who have received the proceeds of a major theft or have been a party to an extensive conspiracy to steal and dispose of valuable property, and that the level of sentence appropriate to the casual or opportunist handler who receives property on an isolated occasion will vary with a value and quantity of the property and the circumstances of the theft.

6. It seems to us that sentences in Hong Kong for handling stolen goods have hitherto been unduly lenient and that the time has come for a revision upwards of the level of sentencing in cases where the defendant has handled the goods that have been taken in a major theft or robbery such as that in the present case. We are satisfied that a starting point for sentence between five and seven years would not be inappropriate in similar cases in the future.

7. However, bearing in mind the general level of sentences in the past and the matters which the judge said that he had taken into account in the applicant's favour, we think that the sentence should be reduced to one of three years' imprisonment. In all the circumstances therefore we grant the application, allow the appeal, set aside the sentence and substitute one of three years' imprisonment.