LUNG WEI CHEONG v. R.

IN THE COURT OF APPEAL

1994, No.293
(Criminal)

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J U D G M E N T

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Keith J. (giving the judgment of the Court):

1. Last May, the Applicant pleaded guilty in the District Court to two charges of handling stolen goods. He was sentenced by Judge Carid to concurrent terms of 33 months' imprisonment on each charge. He now applies for leave to appeal against those sentences.

2. The facts, which the Applicant admitted, were that he received a bunch of five keys which had been stolen earlier that day. He passed the keys on to two men who used the keys to gain access to a residential flat the following morning. While the elderly occupant of the flat was asleep, they ransacked the flat and stole $262,000.00 in cash and some jewellery. The Applicant was paid $15,000.00 out of that money for his trouble. His receipt of the keys constituted one of the charges that he faced, and his receipt of the $15,000.00 constituted the other charge.

3. This was not the usual case of handling stolen goods in which the handler plays no part in the theft, but simply receives part of the proceeds after the theft has taken place. Here, the Applicant played a significant part in setting up the burglary by providing the burglars with the means of access to the flat. The sentences on the Applicant on these charges had to reflect, of course, the fact that he had not been charged with burglary, only with handling stolen goods, but in our view the role which the Applicant played before the burglary meant that his criminality was no less than that of the two burglars. This, therefore, was not one of those cases which Roberts C.J. had in mind in R.v. Chan Wing-kwan (CA 121/85), when he said that

"the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled".

Moreover, the fact that the Applicant played a significant part in setting up the burglary makes it more difficult for the sentence on the Applicant to ignore the aggravating features of the burglary, namely, that it took place in residential flat, admittedly during the day, but while its elderly occupant, though asleep, was there.

4. For these reasons, we entirely agree with the approach of the judge, which was to take as his starting point for the Applicant a term of imprisonment not less than that for D3, the one burglar whom he sentenced at the same time as the Applicant.

5. The starting point which the judge took for both the Applicant and D3 was 3 years' imprisonment. However, although he took that as his starting point in both their cases, he said, in relating to D3, that "after trial a sentence in the vicinity of 3 years to 3 years and 6 months would be appropriate". We think that the starting point of 3 years' imprisonment for the Applicant and D3 was lenient, and for our part we would have taken 3 1/2 years' imprisonment as our starting point.

6. The Applicant was 22 years old when he committed these offences. He was single and living at home with his parents, though some years previously he had got into bad company. He had previous convictions for possessing an offensive weapon and blackmail, for which he had been sentenced to detention in a detention centre and training in a training centre respectively. The present offences were committed within 14 months of his release from the training centre. There was nothing in his background, therefore, which he could rely on as mitigation. The only mitigation was his confession of guilt to the police and his subsequent pleas of guilty.

7. The judge reduced the sentences he would otherwise have imposed on the Applicant by only 3 months' imprisonment to reflect the fact that the Applicant had not pleaded guilty at the earliest available opportunity. We think that the discount for his pleas of guilty was too little. It is true that, in most cases, the earlier a defendant pleads guilty, or announces his intention to plead guilty, the greater will be the discount that he can legitimately expect. But, in our view, a late plea of guilty should rarely reduce the discount to the small extent to which the judge reduced it here. On the starting point which we think the judge should have taken, namely 3 1/2 years' imprisonment, a proper discount to reflect the Applicant's late pleas of guilty was 9 months' imprisonment.

8. Mr. Marray for the Applicant relies on the fact that D3 was sentenced to 2 1/2 years' imprisonment, and he suggests that the Applicant has a genuine sense of grievance as a result of this modest disparity. We disagree. It may be that D3 was fortunate, in that the judge wrongly thought that he had pleaded guilty to the burglary at an earlier opportunity than the Applicant had tendered his pleas of guilty. But the fact that one defendant is the beneficiary of a mistake in his favour does not justify reducing the sentence on another defendant to give him the benefit of the same windfall. In any event, the facts were that D3 had been only 18 years old at the time of the burglary and had only one previous conviction.

9. In the event, therefore, we do not think that the sentences which the judge ultimately imposed were either manifestly excessive or wrong in principle, though we would have arrived at the same sentences by a different route. For these reasons, this application for leave to appeal against sentence is refused.