THE QUEEN v. CHAN HIU TUNG

Magistracy Appeal No.1531 of 1989

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HEADNOTE

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In passing sentence on the appellant for handling, the Magistrate said that "Courts view handlers if anything more seriously than they do the thief". On appeal to the High Court, it was held that there is no such rule. It was necessary to have regard to all the circumstances. In the present case, there was no basis on which to view the appellant's conduct as more serious than the thief's. Sentence reduced from one year's imprisonment to 9 months' imprisonment.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1531 OF 1989

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JUDGMENT

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1. This is an appeal against sentence. On November 21, 1989, the appellant - a married man aged 31 and of previous good character - pleaded guilty before Mr A.F.H. Crawshaw sitting in South Kowloon Magistracy to five charges of handling. Each charge pertains to an occasion on which one item of equipment stolen from a construction site was sold to the appellant, a man in the construction business in a small way. The five items consist of three pneumatic drills, one vibratory compactor and one power rammer,

2. In the course of his argument, Mr Coghlan - who appears on behalf of the Crown - mentioned that the five items were together worth about $20,000. Mr Suffiad - who appears on behalf of the appellant - informs me that his instructions are that his client, paid $8,000 in all for the five items.

3. The learned Magistrate sentenced the appellant to one year's imprisonment on each charge. He made all the sentences concurrent so that the total punishment was one year's imprisonment. It would seem that all the offences - those of the initial theft or burglary by the same thief or burglar and those of handling by the appellant - took place some time in the months of June and July 1989.

4. The first ground of appeal argued on behalf of the appellant is directed principally to persuading me that a suspended sentence is the appropriate punishment in this case. The contention is that there are many factors in mitigation which were not before the learned Magistrate because the appellant was in person in the court below. Certainly, those points have been deployed very effectively before me by Mr suffiad on behalf of the appellant. But on the whole, I do not think that the picture before me and the one before the learned Magistrate are very different. Magistrates are experienced in dealing with defendants in person; and I am not inclined to believe that the learned Magistrate in this case failed to extract all the relevant background information, take it on board and act upon it. The first ground of appeal therefore fails.

5. The second ground of appeal as set out in the notice of additional ground runs thus:

"That the learned Magistrate erred in principle when passing sentence in that he took the view that Courts view handlers more seriously than they do the thief."

In his Reasons for sentence dated December 6, 1989, which he prepared upon the appeal being brought, the learned Magistrate said, among other things, this:

"... it is a truism that without the aid of handlers thieves would be less well able to profit from their crimes."

That no doubt is so. But when he was passing sentence on November 21, 1989, what the learned Magistrate said was this:

"Courts view handlers if anything more seriously than they do the thief."

6. Two decisions of the Court of Appeal have been drawn to my attention. The first is R v. Chan Wing-kwan, Criminal Appeal No.121 of 1985, September 19, 1985, (unreported). At page 9 of the judgment the then Chief Justice, delivering the judgment of the Court of Appeal, said that:

"...other decisions suggest 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."

Naturally, Mr Suffiad emphasises the formula "lesser sentence".

7. The other case drawn to my attention is R v.Leung Shu Ming, Criminal Appeal NO.242 of 1986, October 2, 1986, (unreported). At page 2 of the judgment Mr Justice Penlington, delivering the judgment of the Court of Appeal, said that:

"... The person who is prepared to assist in burglaries and other forms of theft by disposing of goods on behalf of those who take part in the offences and receives a share of the proceeds is as much culpable as those who actually commit the offence."

8. Mr Coghlan emphasises the formula "as much culpable". At the same time, he very fairly directed my attention to the concept of receiving a share of the proceeds dealt within the passage which I have just quoted. He suggests that a share of the proceeds is received by someone who buys the stolen goods. I do not think that that is what the Court of Appeal had in mind. Quite clearly, what they had in mind there was handling in the nature of a business - often in close collaboration with thieves and burglars.

9. Now, all of those statements are meant to be read in their context. Neither counsel has suggested otherwise.   It is quite impossible to lay down a hard and fast rule to cover all cases. It is true, as Mr Coghlan has pointed out, that the maximum penalty for theft is only 10 years while the maximum penalty for handling is 14 years. So the worst handler can be dealt with more severely than the worst thief - but not the worst burglar, who can be given 14 years, or the worst robber, who can be given life. But none of that really helps in the sentencing of any particular thief, burglar, robber or handler because one has to have regard to all the circumstances of each case. Even only as a handler, Fagin was certainly far more deserving of punishment not only than Oliver but also Charley and even the Dodger. I will leave Bill Sikes out of it. On the other hand, one can imagine handlers in the form of persons in very modest circumstances - acting with as much weakness as evil - buying small items of stolen clothing and so on for their own use and the use of their families.

10. What is important in the present case is to consider whether this is a case in which the position of the handler is - as a matter of initial approach - to be regarded as more serious than the position of the thief or burglar, leaving aside any particular circumstances pertaining to them. In my judgment, this is not such a case. The appellant bought these items for use in his construction business. Without more - and there is no more - it is quite impossible to say that his position in regard to the items in question is to be viewed more seriously than that of the thief or the burglar himself. Yet - from what the learned Magistrate said when passing sentence and, to a lesser extent, in setting out his reasons in writing later on - that is the basis on which he seems to have proceeded. That, in my judgment, involves an error - one made, I should acknowledge, without the advantage which I have had, namely, the assistance of counsel.

11. That error apart, I find no flaw in the learned Magistrate's approach. What I propose to do is to ask myself what the learned Magistrate would probably have done if he had not made the error which I have just identified. On the whole, I am inclined to think that he would have passed a sentence of 9 months' imprisonment. That being so, the appropriate course for me to take is to allow this appeal to the extent of reducing the sentence of one year's imprisonment to one of 9 months' imprisonment. I allow the appeal to that extent accordingly.