HKSAR v. CHAN KIN

CACC 126/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 126 OF 2005

(ON APPEAL FROM DCCC 1220 OF 2004)

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J U D G M E N T

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Hon Lugar-Mawson J (giving the judgment of the Court):

Background

1.  On 14 March 2005, the Applicant, Chan Kin, pleaded guilty before Deputy Judge Patrick Li in the District Court to a charge of theft, contrary to section 9 of the Theft Ordinance and was sentenced to 16 months’ imprisonment, and ordered to pay compensation of $5,000.  A charge of procuring the making of an entry in a bank record, contrary to section 18D of the Theft Ordinance, which was also laid against him, was ordered to lie on the court file.

2.  The Applicant now seeks leave to appeal against his sentence.  Mr. Robert Andrews of counsel represents him.  Miss Mary Sin, Senior Assistant Director of Public Prosecutions appears for the Respondent.

Facts

3.  On or about 13 May 2003 the Applicant offered to sell a mechanical digger for $50,000 to a man called Leung Kam Wah who was the proprietor of a company dealing in the sale and operation of construction site machinery.  The Applicant had worked for Leung as a digger operator in the past.  The Applicant took Leung to see the digger, which was parked at an unattended construction site at a road junction in Central, and represented to him that he had the right to sell it.  Leung paid for it by cheque and on the next day, 14 May 2003, arranged for one of his workmen to load it on to a truck and drive it away from the site.  About a week later Leung sold it to an engineering company for $70,000.

4.  Nearly 9 months later, on 21 February 2004, an employee of the company which owned the digger, Hung Kam Shing (Hong Kong) Ltd, saw it at work at a construction site in Ting Kok Road in Tai Mei Tuk and informed the police of its whereabouts.  Its theft in the previous May had already been reported to them.  The police enquiries led to the Applicant’s arrest.

5.  The Applicant, who is a married man of 45 with children in full time further education, was of previous good character.  In mitigation it was said he had committed the offence because he was out of work and in financial difficulties, and needed money to support his family and pay for his childrens’ education.

Reasons for sentence

6.  In his short reasons for sentence the Judge noted the Applicant’s claimed reasons for committing his offence and opined that the there was nothing sophisticated about the way he had carried it out.  He took the Applicant’s guilty plea and expression of remorse into consideration, as well as the Applicant’s willingness to compensate the digger’s owner for its loss.  He took a starting point sentence of 2 years’ imprisonment and reduced that by one-third to 16 months to reflect the Applicant’s guilty plea.  He ordered that the Applicant’s bail money of $5,000 be paid as compensation to Hung Kam Shing (Hong Kong) Ltd.

Grounds of appeal

7.  Mr. Andrews raise two grounds of appeal on the Applicant’s behalf in saying that the sentence of 16 months’ imprisonment is excessive.  First, he says that the Judge was wrong to adopt 2 years’ imprisonment as the starting point because this was a ‘one-off’ offence, with positive indications that it would not be repeated, and that the defendant acted out of character in committing it.  Mr. Andrews also says that there is nothing to suggest that offences of this type are prevalent and require a deterrent element in sentencing.

8.  Secondly, Mr. Andrews says that the Judge failed to give the Applicant a further discount, over and above the one-third discount given for his guilty plea, to reflect the fact that he was willing to make restitution to the digger’s owner and was then ordered to pay $5,000 in partial compensation for their loss.

Discussion

9.  There are no tariff guidelines for this offence as each case turns on its own facts.  However previous decisions of this Court in cases having similar factual situations are of help in deciding whether or not the Applicant’s sentence was the correct one.

10.  In HKSAR v. Man Cho Chuen CACC 500/2003 (unreported) the appellant was convicted after trial of handling stolen goods. He had offered to sell a stolen dredging machine worth $200,000 to an undercover police agent.  He failed to collect payment after delivery of the machine, probably suspecting that it was unsafe to do so.  The dredging machine was recovered and returned to its owner.  The appellant was sentenced to 3 years’ and 3 months’ imprisonment.  On appeal, this Court held that the starting point of sentence should have been 2½ years’ imprisonment.  This Court reduced that sentence by a further 3 months to reflect the appellant’s previous good character.

11.  In HKSAR v. Cheng Chun Ming CACC 356/2000 (unreported) the applicant, a motor dealer, was charged with handling a stolen Subaru Imprezza car worth around $158,000 and two forgery offences.  The owner of the car spotted it for sale at a motor show a month after it had been stolen.  The Judge took a starting point of sentence of 3 years’ imprisonment for the handling offence and reduced it by 4 months to reflect the applicant’s previous good character.  That sentence was upheld on appeal.  This Court observed that cases involving the theft or handling of motorcars are very serious offences, calling for immediate custodial sentences of considerable length.

12.  In HKSAR v. Wong Kam Tat [2002] 2 HKC 677, a starting point sentence of 4 years’ imprisonment for a handling charge taken in respect of another motor dealer who sold a stolen car for $46,000, and who sought $30,000 in compensation from the purchaser when he sought to cancel the deal, was said to be “..not too high.”   That applicant also faced two forgery charges.

13.  The case Mr. Andrews relied on, R. v. Leung King Fai CACC 546/1995 (unreported), in which a young man of 21 who stole a caterpillar excavator worth around $400,000 was sentenced after to trial to just 20 months’ imprisonment, had the unusual feature of the stolen machine being recovered intact almost immediately after it was appropriated.

14.  The facts of the present case are similar to those in Man Cho Chuen, in that in both the stolen goods were construction site machines and not motorcars, and both offenders were of previous good character.  The differences are that in Man Cho Chuen the charge was handling, which carries a higher maximum sentence than theft, and, unlike the Applicant, the appellant did not collect payment and, as the sale was to an undercover police agent, there was no loss to the owner of the stolen machine.

15.  We do not agree with Mr. Andrews that these types of offence are not prevalent.  Thefts of motor vehicles certainly are, and construction site machines are as equally valuable as motorcars and as readily saleable.  To some extent they are more attractive targets to thieves and handlers of stolen goods because, unlike motorcars, they do not require registration with the Government before they can be used.

16.  We agree with Miss Sin when she says in her written argument that there are what can only be termed aggravating features in this case.  The digger was of substantial value; the Applicant received $50,000 for it, Leung sold it on for $70,000.  The offence was clearly pre-meditated; the Applicant was a digger operator and obviously knew which machines were serviceable and which were not and their value, and made use of his knowledge in committing this offence.  Here we part company with the Judge; there was some degree of sophistication in the circumstances of commission of the Applicant’s offence.  The $50,000 the Applicant received for the digger went into his bank account and he withdrew that entire sum over the following two weeks.  His conduct involved the invasion of two persons’ propriety interests.  The owners, Hung Kam Shing (Hong Kong) Ltd, were deprived of the use of the digger for about 9 months and the engineering company that purchased it in good faith from Leung lost possession of it, as they had never acquired good title to it.

17.  We do not, however, agree with Miss Sin that the Applicant’s offence amounted to a breach of trust directed against his former employer, Leung, as he no longer worked for Leung at the time of his offence.  That being said, we are satisfied that in the circumstances of this case and this Applicant, the 2 years starting point taken by the Judge was correct.  If anything, it was a lenient one, but that, no doubt, reflected the fact that the Applicant was hitherto of good character.

18.   So far as the second ground of appeal is concerned, we do not agree that the Applicant is entitled to a further reduction in his sentence because he was willing to make restitution to the digger’s owner.  The plain fact of the matter is that given his impecunious circumstances this was an empty offer.  He had no money from which he could make payment.  The sum of $5,000 compensation awarded against him is only one-tenth of the sum the Applicant received for the digger and in no way represents its value.  The amount appears to have been a purely arbitrary figure based on the amount of his cash bail, which was readily available for this purpose, and its payment involved the Applicant in no additional financial hardship.

19.  We have considered the cases that Mr. Andrews cited of HKSAR v. Leung Shuk Man [2002] 1 HKLRD Digest para 377, in which full restitution was made and HKSAR v. Lam Shuk Ping CACC 57/2003 (unreported), in which partial restitution was made.  In both cases the offenders made the restitution voluntarily before their cases came to trial. This indicated true remorse on their part and it was held that they were entitled to a further reduction of sentence to reflect that.  In Leung Shuk Man, Stuart-Moore VP explained the rationale for that as being that if a specific discount were not given for the payment of compensation or restitution, there would be no advantage to an offender who has repaid some or all of his ill-gotten gain gains to the victim over and above the one-third discount he could expect for a timely guilty plea.

20.  In this case there was only the empty promise of restitution followed by a forced payment of a wholly inadequate amount.  To our minds that does not entitle the Applicant to a further reduction in his sentence over and above the reduction he received for his guilty plea.

Decision

21.  For the reasons we have given, we are of the opinion that the Applicant’s sentence was not excessive and we dismiss his application for leave to appeal against sentence.