HKSAR v. KOO TSANG WING

CAC C 401/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 401 OF 2013

(ON APPEAL FROM DCCC NO. 732 OF 2013)

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J U D G M E N T

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Hon Stock VP (giving the judgment of the Court):

1. The applicant seeks leave to appeal his sentence of two years four months’ imprisonment imposed by Judge Remedios in the District Court on 17 October 2013 following his plea of guilty to one charge of handling stolen goods.

2. On 2 May 2013 he dishonestly handled a safe containing documents, US$ 600, six pendants, six necklaces, a pair of bracelets, seven wrist chains, a commemorative coin, seven watches, 42 rings, 39 pairs of earrings, the property of a lady who resided with family members at a house in Tuen Mun.

3. The safe had been stolen in a burglary on 1 May 2013 by the applicant’s co-defendants, Tong and Lam, who pleaded guilty to the burglary of those premises.

4. 1 May 2013 was a public holiday and the occupier of the premises and her family members went out for dinner.  At about 9:45 pm the domestic helper returned and discovered signs of ransacking.  Valuables worth about $100,000 were stolen from the sitting room whilst the safe was stolen from the lady’s bedroom.  The contents of the safe, which were recovered, were worth around $3.5 million but the $100,000 worth of gold ornaments and jewellery were never recovered.

5. On the day following the burglary, Tong and the applicant were under police observation and they met in a restaurant on the morning of 2 May.  They then purchased some tools from a hardware store and boarded a private vehicle which was driven by Lam.  The vehicle reached a location in Tuen Mun and an attempt was made to open the safe but to no avail.  In the afternoon the police saw the three culprits carrying the safe and boarding the vehicle.

6. Tong told police after his arrest that he had telephoned Lam and recruited him to commit the burglary but, having moved the safe to some bushes near the house in question, the safe proved too heavy for him to carry so he recruited the applicant to help him move the safe.  He intended to share the contents of the safe with Lam and to treat the applicant for a meal in return for his assistance.

7. The applicant told the police that on the morning of 2 May, Tong had telephoned him and asked him to move something but did not specify exactly what; he was promised a reward though no amount was mentioned.  He helped the other man move the safe and put it in the vehicle.

8. All three defendants were dealt with by the Judge on the same day.  Each had extensive criminal records for offences of dishonesty including offences of burglary and the applicant was, at the date of sentence, aged 55 years and had been before the courts on no fewer than four different occasions since 1998 for the offence of burglary, the last in June 2010.

9. The judge took a starting point in relation to each defendant of three years’ imprisonment, which she described as the usual starting point for an offence of burglary of domestic premises and in each case aggravated that by six months’ imprisonment to take into account the high value of the property stolen and the fact that, in the case of each defendant, previous sentences imposed for burglary had self-evidently not had a deterrent effect.  From the resulting point of three years six months’ imprisonment she reduced each sentence by one-third to give credit for the plea of guilty and sentenced each defendant, including this applicant, to a term of two years four months’ imprisonment for the respective offences of burglary (in the case of Tong and Lam) and handling stolen goods (in the case of the applicant).

10. We can readily dispose of one of the grounds of appeal, namely, that which complains that the enhancement of sentence by six months was manifestly excessive.  It was not.  The circumstances of the burglary, in particular the value of the goods stolen, warranted a starting point of three years six months’ imprisonment, and to that could well have been added a further amount on account of the failure of previous sentences to act as a deterrent upon these seasoned burglars.

11. However the point which has exercised us is the fact that the applicant received the same term of imprisonment as did the burglars themselves.  That is not to say that those who handle stolen goods are necessarily to receive a lesser sentence than the thief or burglar from whom the goods are received.  It depends on the circumstances of the case.  In this case, however, it was not suggested that the applicant was engaged to be the ‘fence’ for whatever was stolen, or that he was to share in the stolen goods themselves or their value.  As far as the evidence went, which was not contested and which the judge did not disbelieve, he was first called upon after the event to help move the safe and, it seemed, he helped in trying to prise it open.  But although he was to receive some reward for his assistance he was, on the evidence, not to share the stolen goods themselves, or their proceeds.  Whilst it can be said that the burglars could not themselves have justifiably complained had their sentences being greater, the applicant has, in our judgment, on the facts, a justifiable sense of grievance for receiving the same sentence as the burglars.

12. For these reasons, we think that, to give effect to this difference in culpability, a starting point in the applicant’s case should be one of 3 years’ imprisonment and that giving credit for his plea of guilty, the ultimate sentence should be one of 2 years’ imprisonment.  Accordingly, we grant the applicant leave to appeal sentence, treat the hearing of the application as the appeal, allow the appeal, set aside a sentence of 2 years 4 months’ imprisonment and substitute for that a sentence of 2 years’ imprisonment.