ATTORNEY GENERAL v. NG KWOK HUNG

IN THE COURT OF APPEAL

Application for Review
1996, No.7

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J U D G M E N T

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Power, V.-P. (giving the judgment of the Court):

1. The matter comes before us on an Application to Review sentence brought by the Attorney General. The offences involved stolen goods vehicle. The first vehicle was a goods vehicle DW6877. On 14th October 1994 the goods vehicle, owned by a Mr. Cheng Kwok-sing and a Mr. Yeung Yin-wah, was parked at about 8 p.m. in an open space outside Goodview Garden in Tuen Mun. When Mr. Cheng returned on the following day at about 8 a.m. to collect his vehicle he found it was missing. He reported to the police. Some three days later the respondent, using the false name "Wong Yui Keung", drove the vehicle to the Wing Lee Vehicle Scrapyard. He offered to sell the vehicle using the identity card of Wong Yui Keung and the scrapyard proprietor agreed to purchase it for $13,000 cash. The proprietor was given a photocopy of a vehicle registration document which purported to be that of the stolen vehicle but which was, in fact, a forgery. This vehicle was dismantled after purchase and the parts were sold. The vehicle disappeared entirely from the scene.

2. In relation to the charges arising out of those offences he pleaded guilty and was sentenced as follows:

Theft of a motor vehicle, Charge 7 - 6 months.

Forgery of vehicle registration, Charge 8 - 6 months.

Driving without a licence, Charge 10 - 7 days.

Driving without Third Party Insurance, Charge 11 - 2 months.

Using the identity card of another, Charge 12 - one month.

3. We turn to the second set of offences. This concerned another goods vehicle EG6586. The beneficial owner of the vehicle, although not the registered owner, was a Mr. Cheng Tze-wo and he parked that vehicle at the Wilson Carpark on Fung On Street, Tuen Mun, at about 2 a.m. on 7th April. On his return at 6 p.m. he found the vehicle was missing. A report was made to the police. On that same day the respondent claiming himself to be Wong Yui Keung and using the same false identity card offered to sell the vehicle to the Cheung Lee Vehicle Scrapyard. His offer was accepted and he was given a cash cheque in the sum of $13,000. Fortunately that vehicle was retained at the scrapyard pending dismantling. In relation to the charges arising out of these offences he pleaded guilty and was sentenced as follows:

Theft of vehicle, Charge 13 - 3 months;

Forgery of vehicle registration, Charge 14 - 3 months;

Driving without a licence, Charge 16 - 7 days;

Driving without Third Party Insurance, Charge 17 - 2 months;

Using the identity card of another, Charge 18 - 1 month.

4. The third set of offences concerned a goods vehicle DH4092. These offences occurred on 10th April 1995, almost immediately after the previous offences. A Mr. Cheung Chuen-shu, the registered owner of the goods vehicle, had parked his vehicle near the Golf Course opposite to the Sun Tuen Mun Centre, Castle Peak, Tuen Mun at about 11:30 a.m. on that day and when he returned at 5 p.m. he found the vehicle was missing. He reported it to the police. It seems that an anonymous telephone call alerted the owner to the whereabouts of his vehicle and he found it in an open space at the Cheung Lee Vehicle Scrapyard. The respondent had again driven to the scrapyard and used the false identity and had offered to sell the vehicle for $15,000. He was unable, however, to produce any vehicle registration document and the owner of the yard came to an agreement that he be paid $12,000 cash immediately and the balance of $3,000 when the vehicle registration was produced. He returned at about 1100 hours on 15th and produced a false vehicle registration document. The police arrived shortly afterwards and he was arrested.

5. In relation to the charges arising out of these offences he pleaded guilty and was sentenced as follows:

Theft of vehicle, Charge 19 - 3 months;

Driving without a valid licence, Charge 20 - 7 days;

Driving without Third Party Insurance, Charge 21 - 2 months;

Using the identity card of another - one month.

He faced two additional charges which arose out of his theft of a motor vehicle registration document which he falsified and used in the offences and his theft of Mr. Wong Yui Keung's identity card. He pleaded guilty to both of these charges and was sentenced as follows:

Theft of a vehicle registration document, Charge 23 - 2 months;

Theft of a Hong Kong identity card, Charge 24 - 2 months.

6. He was sentenced by Judge Britton in the District Court to an overall term of imprisonment for nine months on all of the charges, some having been made consecutive and some concurrent, and he was disqualified from driving for a period of 18 months. The Crown now seeks to review those sentences on the ground that they were manifestly inadequate.

7. In an endeavour to understand the rationale of what on their face were very lenient sentences we turn to the judge's Reasons. The judge firstly remarked that he was dealing with the theft of three "rather elderly lorries total value of something over $40,000". We pause here to remark that the judge, wrongly in our view, was prepared to accept that the amounts which the thief negotiated on a sale of the vehicles as scrap represented the real value of the vehicles. We think inappropriate also the judge's reference to "rather elderly lorries". They were, it would appear, lorries used by their owners in their transportation businesses. Their age, if they were old, and there is nothing that really establishes that, does not seem to us to be of any real materiality.

8. The trial judge went on:

"This case, in my view, should have remained in the Magistrate's Court, where the limited powers of Magistrates would have been more than adequate to deal with you."

The judge continued:

"Now, as for that, if there had been one transaction involving one lorry in this case, then in my view the correct starting point for that series of offences would have been between 6 and 9 months' imprisonment. But there is more than one transaction, there are three separate thefts involved, and to apply the same starting point for each of the three would result in a prison sentence of between 18 months and 2 years."

Having taken took into account previous good character and the pleas of guilty he took a starting point of 15 months and imposed an overall sentence of nine months.

9. In each set of offences an unlicensed driver stole a goods vehicle in a planned operation. He then used forged documents to sell the vehicle for scrap in the expectation, we have no doubt, that it would be dismantled and would then disappear without trace. Indeed that is what happened to the first of the three vehicles. We have no information as to the circumstance of the victims but goods vehicle almost invariably provide the livelihood of the owner from which he supports his family. We consider that the observation that what had occurred was the theft of "three rather elderly lorries total value of something over $40,000" indicates a failure to appreciate the seriousness of these offences. We are quite satisfied also that these matters were properly brought in the District Court.

10. We turn to consider the proper sentences. We do so by assessing the overall criminality in each set of offences. We are satisfied that each set of offences warranted overall a sentence of imprisonment for three years.

11. In relation to the first set of the sentences we are satisfied that the theft (Charge 7) warranted a sentence of three years, the forgery (Charge 8) of nine months, the driving without a licence (Charge 10) one months, the driving without third party insurance (Charge 11) three months, and the use of an identity card (Charge 12) one month.

12. In relation to the second set we are satisfied that the theft of the goods vehicle (Charge 13) warranted a sentence of three years, the forgery (Charge 14) nine months, the driving without a licence (Charge 16) one month, the driving without third party insurance (Charge 17) three months and the use of an identity card (Charge 18) one month.

13. As to the third set of offences, we are satisfied that the theft (Charge 19) warranted a sentence of three years, the driving without a licence (Charge 20) one month, the driving without third party insurance (Charge 21) three months and the use of an identity card (Charge 22) one month.

14. Each of the two final offences (Charges 23 and 24), the theft of a motor vehicle registration documentation and the theft of a Hong Kong identity card, we are satisfied warranted sentences of six months.

15. As regards all the sentences we are satisfied that there should be a one-third reduction because of plea. We are satisfied that all sentences except Charge 19, i.e. the third theft charge, should be concurrent. The sentence on Charge 19 will commence after one year of the other concurrent terms has been served. This will result in an overall sentence of imprisonment for three years. We bear in mind what this court has said in the past as to an increase of sentence on an application for review. In the present case two factors fall for consideration - the first is that the applicant has almost completed his sentence and the second is that the increase from nine months to three years is a very substantial one. Bearing them in mind, we are satisfied that the sentence of three years should be reduced to one of 2 1/2 years.

16. The Attorney General's application is allowed and the sentences are varied as we have indicated giving a totality of sentence of 2 1/2 years.