HKSAR v. LAI YUN CHEONG

CACC 45/1998

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 45 OF 1998

(ON APPEAL FROM DCCC 715 OF 1997)

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J U D G M E N T

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Leong, J.A. (giving the judgment of the Court):

1. The applicant was convicted after trial in the District Court before H. H. Judge Barnes of two charges of handling stolen goods and one charge of possession of apparatus for radio communication without a licence.

2. The brief facts were a BMW private car, the stolen property in the first charge and a Mercedes-Benz private car, the stolen property in the second charge were found missing from their parking places on 23rd November 1996. Subsequently, police officers keeping watch outside a warehouse saw both cars being driven into the warehouse mentioned in the charges. The officers rushed into the warehouse and found the BMW together with two other private cars had already been loaded into a container. The applicant was sitting in the driving seat of the Mercedes-Benz and there was a radio communication receiver in the car. The applicant attempted to run but was arrested. He admitted to the officers after he was arrested that he knew the BMW and the Mercedes-Benz were stolen cars and he was hired to drive the two cars to the warehouse for $2,000 each and the radio equipment was for communicating with people in the warehouse.

3. The Judge sentenced the applicant to 4 1/2 years' imprisonment on the first charge of handling stolen goods and two years on the second charge of handling stolen goods, one year of which was consecutive, and 6 months consecutive on the communication apparatus charge. The total sentence was 6 years.

4. The applicant now seeks leave to appeal against sentence.

5. There are a number of grounds of appeal. The first ground is that the Judge adopted too high a starting point.

6. The Judge followed R. v. Hui Kam-ming Cr. App. 471 of 1993 and adopted a three-year starting point for each of the handling charges. It is submitted for the applicant that Hui Kam-ming was not appropriate authority for the starting point in handling stolen goods cases where the role of the handler was ministerial, as in the case of the applicant. Reference is made to R. v. Kwong Cheuk-wah (unreported) Cr. App. 561 of 1988 where the defendant assisted in the transfer of stolen goods from a broken vehicle to a serviceable one. The Court of Appeal in that case reduced a sentence of 2 years' to 18 months' imprisonment.

7. Reference was also made by Mr. Boinville for the applicant to a number of handling cases involving stolen cars. In R. v. Lie Thian-sien (unreported) Cr. App. 485 of 1991, a sentence of 2 1/4 years' imprisonment after plea was upheld and in R. v. Chiu Ko-wai [1992] 2 HKCLR 219, a sentence of 3 years after plea was held to be on the high side and reduced to 2 1/2 years. The Court of Appeal in Chiu Ko-wai considered it appropriate for those involved in the theft or handling of stolen cars to receive a deterrent sentence and substantial prison sentences should be imposed. There the Court of Appeal also indicated that if there is evidence of organised criminal syndicate involvement, the sentence should be increased. Another case referred to by Mr. Boinville is Lin Kae-tzong [1995] l HKCLR 116 where 2 years and 9 months was considered not inappropriate.

8. It would appear from these cases that a starting point of 3 years after trial would not be inappropriate. Mr. Luk, for the government, had referred to a number of cases where sentences for handling stolen cars were considered and these cases are R. v. Hui Kam-ming Cr. App. 471 of 1993, AG v. Chan Sik-ming [1996] 2 HKCLR 156 and HKSAR v. So Kong-shun Cr. App. 306 of 1997. These cases have consistently indicated that handling stolen motor vehicles would attract substantial prison sentences and a starting point of at least 5 years without regard to any element of organised crime would not in any case be inappropriate.

9. In Hui Kam-ming where the defendant was the driver of a vehicle which transported away $2 million worth of goods after they had been stolen from a warehouse, the Court of Appeal considered three years after a plea would have been appropriate. However, MacDougall, V.-P. had this to say generally about sentencing in such cases:

"It seems to us that sentences in Hong Kong for handling stolen goods have hitherto been unduly lenient and that the time has come for a revision upwards of the level of sentencing in cases where the defendant has handled the goods that have been taken in a major theft or robbery such as that in the present case. We are satisfied that a starting point for sentence between five and seven years would not be inappropriate in similar cases in the future."

10. Chan Sik-ming is a case where the defendant drove a stolen vehicle across the border for a reward of $30,000 and the Court of Appeal considered it appropriate for the sentencer to adopt a starting point of at least 5 years. This case was relied on by the Court of Appeal in So Kong-shun for their conclusion that five years as a starting point for handling a stolen medium goods vehicle was in no way excessive.

11. Mr. Boinville submits that these cases are not applicable to the present case according to their facts. Be that as it may, having regard to all the authorities that have been referred to, the Judge's starting point of 3 years prior to enhancement for each handling offence cannot be regarded as inappropriate in any way.

12. The second ground is that concurrent sentences should be imposed on all three charges instead of consecutive sentences since all three offences occurred at the same time. The third ground questions the Judge's consideration on totality of sentence and complains that the Judge had failed to give sufficient weight to the minor role of the applicant. The fourth ground is that it was not necessary in the circumstances of this case for the sentences to be enhanced by 50%. The last ground deals with the totality of 6 years which Mr. Boinville considers to be excessive.

13. It would appear from the fourth ground that the applicant does not deny that this is a case where the Judge could enhance the sentence under s.27 of the Organised and Serious Crimes Ordinance, Cap. 455. What is complained of is that 50% enhancement is excessive. Counsel for the applicant in the court below did not dispute that the present case is one where the prosecution may apply under the Ordinance for enhancement of sentence. The Judge following R. v. Law Hoi-fu and Others [1996] 2 HKDCLR 1 considered that on the facts of the present case where luxury cars were stolen and loaded into containers for illegal shipment abroad, the court must take a serious view of the case for the protection of the public from organised criminal activities. The Judge considered that even though the applicant was not the master-mind, an enhancement of 50% should be made.

14. In HKSAR v. Tam Wai-pio (unreported) Cr. App. 32 of 1998, another case referred to by Mr. Boinville, the Court of Appeal took the view that 50% enhancement for offences of handling stolen BMW motorcars could not be criticized. The Court of Appeal in that case agreed with Liu, J.A.'s observation in HKSAR v. Cheung Wai-man (unreported) Cr. App. 666 of 1997, another case referred to by Mr. Boinville, that for such organised crimes as vehicle smuggling, trafficking in women for the purpose of prostitution and the use of force to recover money lent at an excessive interest rate to gamblers as in that case, an enhanced sentence of even more than 50% may be appropriate.

15. In the present case the applicant was employed to ferry the stolen cars from where they were stolen to the warehouse for loading into containers, thereafter to be smuggled outside Hong Kong and he had the radio communication apparatus with him, and that may be assumed, to ensure that the operation run smoothly. The remuneration of $2,000 for each car he drove was not a minor sum and the operation, it would appear, was an on going syndicated car theft and smuggling operation. The applicant's role was therefore not purely ministerial. Enhancement of 50% is not wrong in these circumstances.

16. In our view, although all these offences occurred at the same time, making all sentences concurrent would not have reflected their total criminality. The total sentence for the two offences of handling must be expected to be more than the sentence for a single offence. For these two offences of handling, the sentence before enhancement must be at least 4 years, having regard to the normal starting point for a single offence that would have attracted at least 3 years. Thus, after enhancement of 50%, 6 years' imprisonment for the two handling offences would not have been inappropriate. The radio communication apparatus offence is an offence of a different nature. However, there is evidence that it might have been used in connection with the handling of stolen cars on that occasion and a concurrent sentence could have been imposed rather than a consecutive sentence. Be that as it may, in our view, although the method in reaching the total sentence of 6 years is slightly different, we do not think the final conclusion of 6 years' imprisonment would be incorrect. In all these circumstances this is not a case we should interfere. The application for leave to appeal against sentences is dismissed.