HKSAR v. WONG FUK AND OTHERS

CACC 253/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 253 OF 2010

(ON APPEAL FROM DCCC NO. 1440 OF 2009)

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BETWEEN

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REASONS FOR JUDGMENT

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Hon Stock VP (giving the Reasons for Judgment of the Court):

Introduction

1.  These three applicants were convicted after trial by Judge Remedios in the District Court on 28 June 2010 of three charges: the first that between 1 July and 20 September 2009 they conspired together and with other persons to steal light goods vehicles; the second and third that on 20 September 2009 at a car park in the New Territories they tampered with light goods vehicles (‘LGVs’), contrary to s. 49 of the Road Traffic Ordinance, Cap 374.

2.  The first and second applicants sought leave to appeal against conviction and sentence and the third against sentence only.

3.  On 20 September 2011, we dismissed the applications in relation to conviction and said we would give our reasons later, which we now do; and reserved our decisions in relation to the sentence applications.  In the case of the 3^rd applicant, we heard further submissions on 6 February 2012.

The facts

4.  The facts found by the judge may conveniently be taken from a helpful summary provided in her Reasons for Sentence delivered on 16 July 2010:

“2. The facts of the case were that on 20 September 2009, the police officers, who were at an observation post, saw the three defendants alight from a private car and enter an open air car park. In the car park the 1^st defendant put on a glove and was seen tampering with the rear door of two light goods vehicles, whilst the 2^nd and 3^rd defendants kept watch nearby. Whilst tampering with one of the light goods vehicles, the 1^st defendant held a screwdriver in his hand and did a prising action at the rear door. Shortly thereafter the defendants were intercepted and arrested by police officers in the car park. They were searched, and a number of items were found and seized.

3. The 1^st defendant was found with a pair of labour gloves, screwdriver, a car ignition key and three mobile phones. The 2^nd defendant was found with a vehicle door lock, a mobile phone and a name card. The 3^rd defendant was found with five mobile phones and an ignition key for the private car which they had arrived in.

4. The defendants were taken to the car that they alighted from, and from a search of the car was found six vehicle locks, 14 vehicle lock ignition keys, five pairs of labour gloves, a pair of walkie-talkies, four screwdrivers, a spanner, a saw, three saw blades, two hexangular Allen keys and two torches. Also found in the car the following day was a copy registration of a light goods vehicle which had been stolen in 2005, a document with statistics on different types of stolen motor vehicles throughout Hong Kong for the month of August 2009.

5. I had found that the defendants had used this mobile shed housing equipment for their use to steal and to transport them around in furtherance of their agreement to steal light goods vehicles. I accepted that the modus operandi of the defendant conspirators was to take out the rear door locks of light goods vehicles and replace them with another lock unknown to the owner of the light goods vehicle, to make a copy key from the rear door locks that were stolen. Then, at a future day, the conspirators would use the copy key to open the door of the light goods vehicle, start the ignition and steal the light goods vehicle.

6. The tools found strewn all over the vehicle were suitable for the removal and replacement of the rear door locks of light goods vehicles. The rear door locks found, as the Toyota supervisor said, were similar to those of Toyota light goods vehicles door locks. The ignition keys that were found in the car were all keys that had been copied. The information written on the label of some of the keys, was the registration number and location of the light goods vehicles, which were indicative of the identity of the light goods vehicle and where they could be found.

7. Of the 14 vehicle keys found in the car, five of those keys fitted the door locks and ignitions of five light goods vehicles which did not belong to the defendants, nor had any connection with the defendants. Owners of those five light goods vehicles did not know the defendants. Of those five owners, three of these light goods vehicles had rear door locks of which the owners’ keys could not fit, and the rear door locks had either been damaged or removed.

8. I had found that the defendants were in the car park tampering with the rear door locks of the two LGVs, D2, even who had a vehicle rear door lock in his pocket, their acts were preparatory to the stealing of light goods vehicles.  On the evidence presented, therefore, I convicted the defendants of those three offences.”

The defences

5.  None of the applicants gave evidence on his own behalf at trial although there was a witness called for D1 to the effect that D1 was at the car park in question to collect a LGV as security for a debt owed by the witness to D1.

6.  This was not D1’s story.  The story which he provided in interviews with the police was that he was a debt collector and was at the site to scratch the vehicles of debtors using the gloves and screwdriver which were found upon him. 

7.  D2 told the police in a statement that he was there to act as a lookout; though apparently it was suggested at trial that he was only there to urinate.

8.  Neither D1 nor D2 were represented upon their applications to this Court.

D1 and conviction

9.  D1 appended to his notice of application advice provided by his counsel to the Director of Legal Aid in which counsel said that there was insufficient evidence from which to draw the conclusion that the applicant was party to an agreement to commit any offence prior to 20 September 2009.  The date 1 July 2009 had been chosen by the prosecutor as the opening date of the charged conspiracy because it was the date upon which an owner of a vehicle, the lock to which was found in D3’s car, discovered that his key did not fit his vehicle. 

10.  The complaint is not well-founded, for there was self-evidently a conspiracy, to which D1 was party, to commit the offences witnessed by the police on 20 September 2009 and that suffices to render the applicant guilty of the offence charged.

11.  There were no grounds of appeal advanced in respect of the second and third charges.

12.  D1 addressed us on the hearing of his application and, amongst a variety of points made, suggested that there had been insufficient evidence upon which to found a conviction for conspiracy to steal vehicles, as opposed to, say, stealing from vehicles.

13.  The evidence against D1 was overwhelming; his own conduct on the day he was arrested and the evidence as a whole pointed inexorably to the conspiracy charged and to his participation in it and, accordingly, we dismissed his application.

D2 and conviction

14.  In his home-made grounds of appeal, D2 merely said in relation to conviction that he was not satisfied with his conviction.  He supplemented these grounds by oral submissions before us.  D2 had made an admission to the police that he was the lookout on the occasion in question but the admissibility of this suggested confession was unsuccessfully challenged at trial.  In his case as well, the evidence was clear cut and overwhelming and there was no basis upon which to interfere with the conviction.  His application in relation to conviction was accordingly therefore also dismissed.

Sentences

15.  In relation to sentence, the judge took a starting point of 4 years’ imprisonment for the conspiracy offence.

16.  She noted that D1, aged 45 years, had six previous criminal convictions, two of which were for offences of dishonesty.

17.  D2 was aged 27 years and was a person without previous criminal convictions.

18.  D3 was aged 44 years with nine previous convictions, seven of which were for handling stolen goods.

19.  Because of D3’s extensive record for similar offences, the sentences for which had clearly had no deterrent impact upon him, the judge added an extra three months to the term of four years upon which she had alighted as a starting point.

20.  In relation to all applicants, the judge added 20% pursuant to the provisions of s. 27 of the Organised and Serious Crimes Ordinance, Cap 455, relying upon two factors: first, that this was an organised crime in that it concerned the activities of more than one person associated solely for the purpose of committing two or more acts each of which was a scheduled offence and involved substantial planning and organisation and, secondly, that offences of stealing light goods vehicles were prevalent.  That is how she came to a sentence in respect of the first and second applicants of four years and nine months’ imprisonment and in relation to the third applicant to a term of 61 months’ imprisonment but in his case reduced by 6 months to 4 years 7 months on account of mitigating factors.

21.  For the offences covered by Charges 2 and 3, the judge imposed a sentence in respect of each applicant of 6 months’ imprisonment for each such offence and ordered those sentences to run concurrently with each other and with the sentences on Charge 1.

The enhancement issue

22.  Issue is taken on behalf of the third applicant with the enhancement of sentence on the basis that it was not shown, it is said, that the offence was prevalent; to the contrary, the evidence suggested a decrease in missing LGVs in 2009 compared to the previous two years.

23.  The other two applicants suggest that the sentences were too heavy.  Although not pleaded by them, we address the question of enhancement in their cases as well.

24.  The starting point taken by the judge was in our opinion appropriate.  This was a conspiracy to steal not just one but as many light goods vehicles the theft of which might be manageable.

25.  Our attention has been drawn to the cautionary note sounded by this Court, differently constituted, in HKSAR v Wong Fung-ming and another CACC 515 of 2001, 5 December 2002 unreported, to the effect that the power to enhance a sentence under s. 27(11) of the Ordinance is an extraordinary power to be used sparingly and that the legislature did not intend that “an enhanced sentence should be imposed at a time when the particular need to deter others has passed”; so that even where an offence might be regarded as prevalent because still commonly practised, an additional punitive sentence designed to deter others was not called for under the statutory provision “once the offence in question has been shown to have substantially declined in numbers.”

26.  We have before us the figures placed before the court below relating to missing LGVs in the years 2005 to 2009 inclusive and to missing LGV Toyota Hiace vehicles for the same period; the relevance of the Hiace model is that the keys found in D3’s vehicles were all or mostly suited to Hiace locks.

	2005	2006	2007	2008	2009 (as at October)	Until end of 2009 (orally provided to Judge) (AB 43R-44C)
Overall missing vehicles	1,592	1,774	1,398	1,360	932	1,106
Light Goods Vehicles (LGVs)	254	300	422	442	278	327
% of Missing LGV to overall missing vehicle	16%	17%	30%	33%	30%	30%
Missing Toyota Hiace	102	168	278	348	211	250
% of Missing Toyota Hiace to overall missing LGV	40%	56%	66%	79%	76%	77%

27.  The figures were subjected to close analysis by Mr McGowan on behalf of D3.  He suggested that the figures were incomplete because they did not show the overall numbers of LGVs or whether there was an increase in the popularity of the Hiace and that, in any event, the figures evidenced a substantial decline of offences in the year 2009 both in respect of LGVs generally and also in respect of the Hiace.

28.  We do not think that the figures show a substantial decline in numbers.  The figure for 2009 in respect of missing LGVs is about the average for the years in question and the figure for missing Hiace vehicles is above the average.  In any event, the drop in the year 2009 compared with the previous year is not such as to support the suggestion that the need to deter others demonstrated by the figures between 2005 and 2008 had passed; by which we do not suggest that the burden of showing prevalence, as that is contextually to be understood, lies other than squarely on the prosecution; but we are satisfied that that burden was discharged in this case.

29.  It is in any event to be remembered that this was not the only basis upon which the enhancement power was activated.  The judge activated the power was because she found this was an organised crime as that is defined by the statute.  We considered whether the sophistication and planning of the conspiracy was taken into account for the four-year starting point, in which event there was a risk of double counting, a risk always to be avoided, but we are satisfied that there was no double-counting in this case.

30.  Mr McGowan sought to make something of the fact that in taking her starting point of four years the judge had cited another case, and he sought to distinguish that case from the present.  These cases are highly fact sensitive and we are satisfied that the starting point taken was not excessive, let alone manifestly so.

31.  D1 adopted much of Mr McGowan’s submissions in relation to sentence.  We are satisfied that there is no merit in his sentence application and it is dismissed.

32.  D2 addressed us as to sentence, praying in aid what he said was his limited role and the fact that he had no previous convictions.  We also received a letter from his mother, who was in court, seeking to explain some of the circumstances in which the applicant was said to have fallen into bad company.

33.  His role could not only have been that of a lookout, for there was a door lock found in his possession.  But we are exercised by the fact that no distinction was drawn between his sentence and that imposed on D1.  D3’s sentence was aggravated on account of his extensive record of like offences.  But no distinction was drawn between the sentence imposed on D1 and D2.  D1 and D3 were in their mid-forties and their lives had been steeped in crime.  D2 was in his twenties and had a clear record.  We think a distinction in sentence was warranted in these circumstances though, given the nature of the offence, by a limited margin.  We have decided in his case to grant his application for leave to appeal against sentence, treat the hearing of the application as the appeal, allow the appeal, set aside a sentence of 4 years 9 months’ imprisonment and substitute therefore a sentence of 4 years and 4 months’ imprisonment.

34.  In the case of D3, we have heard mitigation on his behalf not placed before the sentencing judge, in the light of which we are satisfied that a three-month deduction from his sentence is warranted and, accordingly, he is given leave to appeal against sentence, his application is treated as the hearing of the appeal, the appeal allowed and the sentence of 4 years 7 months’ substituted by a term of 4 years 4 months’ imprisonment.

35.  The sentence on Charges 2 and 3 remain undisturbed as do the orders that they be served concurrently to the sentences imposed in relation to Charge 1.