HKSAR v. NONES CARMELITA GALAY AND ANOTHER

HCCC 129/2021

[2021] HKCFI 2952

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 129 OF 2021

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Transcript of the Audio Recording
of the Sentence in the above Case

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COURT: Carmelita Galay Nones (hereafter referred to as the “1^st accused”), Maricris Galay Nones (hereafter referred to as the “2^nd accused”), and Cristina Noble Alagna (hereafter referred to as the “3^rd accused”)  face charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 and handling stolen property, contrary to section 24 of that ordinance.

The charges are as follows:

(1)  Charge 1, Theft, 1^st accused

Between 17 June 2018 and 27 July 2019, theft of 8 necklaces, 7 bangles, 11 pairs of earrings and one single earring, 2 bracelets, one 50 grammes gold bar, one 187 grammes gold bar, 10 rings and 31 gold coins.

(2)  Charge 2, Theft, 1^st accused

Between 27 July 2019 and 11 August 2019, theft of 2 Piaget watches.

(3)  Charge 3, Theft, 1^st accused

Between 1 June 2019 and 4 September 2019, theft of one watch, 2 bangles, 7 earrings and one necklace.

(4)  Charge 4, Theft, 1^st accused

4 September 2019, theft of 23 necklaces, 3 bracelets, 11 pairs of earrings and one single earring, one brooch, 11 pendants, 5 rings, 3 watches, 2 bangles, $4,000 cash and other jewellery in the total of $120,000 value, and some costume jewellery valued at $3,000.

(5)  Charge 5, Theft, 1^st accused

Between 3 June 2018 and 18 February 2019, theft of six necklaces, six rings, nine bangles, four pairs of earrings, two bracelets and one pendant.

(6)  Charge 6, Theft, 1^st accused

Between 13 May 2018 and 2 June 2019, theft of three bangles, 7 bracelets, 2 pairs of earrings, 3 single earrings, one pendant, 2 necklaces and 4 rings.

(7)  Charge 7, Handling stolen goods, 2^nd accused

3 June 2018, handled one necklace, 2 rings and 2 bangles.

(8)  Charge 8, Handling stolen goods, 2^nd accused

16 October 2018, handled 4 bangles.

(9)  Charge 9, Handling stolen goods, 2^nd accused

4 November 2018, handled one bangle, 2 bracelets and 4 necklaces.

(10)  Charge 10, handling stolen goods, 2^nd accused

25 November 2018, handled 4 rings, one bangle, 3 pairs of earrings, one necklace and one pendant.

(11)  Charge 11, Handling stolen goods, 3^rd accused

13 May 2018, handled 2 bangles.

(12)  Charge 12, Handling stolen goods, 3^rd accused

15 July 2018, handled one bangle, one bracelet, one pair of earrings.

(13)  Charge 13, Handling stolen goods, 3^rd accused

30 September 2018, handled 2 bracelets and one ring.

(14)  Charge 14, Handling stolen goods, 3^rd accused

23 December 2018, handled 4 rings, 2 bracelets, one necklace and 3 earrings.

(15)  Charge 15, Handling stolen goods, 3^rd accused

5 May 2019, handled one bracelet.

(16)  Charge 16, Handling stolen goods, 3^rd accused

2 June 2019, handled one pair of earrings.

The owners of the items of property which were stolen are named in the charges. The owners are husband and wife whose residential premises are in Deep Water Bay, Hong Kong. The 1^st accused was, at all times material to these proceedings, employed by the victims as a domestic helper at these residential premises. The 2^nd accused is the niece of the 1^st accused. The 3^rd accused is the cousin of the 1^st accused. The 2^nd and 3^rd accused were both employed as domestic helpers in Hong Kong, but worked for different employers elsewhere in Hong Kong.

Investigation and arrest

The case came to the attention of the police through a routine pawnshop inspection in July 2019. The attention of the police was drawn to some suspicious pawn records in the name of the 1^st accused, which led to the discovery of the case. On 4 September 2019, the police visited the residence of the owners and they confirmed the ownership of the pawned properties discovered by the police.

On the same day, the 1^st accused was arrested for stealing from the owners. Further investigation revealed that the 2^nd accused and the 3^rd accused had also pawned some of the property stolen from the residence of the victims. Further property was found in the possession of the sister of the 1^st accused. The sister returned the property to the residence on 5 September 2019. The 2^nd accused and the 3^rd accused also assisted in the recovery of property owned by the victims, including recovery of property which the victims did not then know had been stolen.

The 1^st, 2^nd and 3^rd accused were arrested and charged respectively with theft and handling stolen goods as I have outlined already.

Loss in relation to the stolen goods

Charge 1

The property stolen by the 1^st accused in Charge 1 was pawned by the 1^st accused at five different pawnshop locations and involved the issue of 25 pawn tickets. The estimated value of the items stolen, the subject of Charge 1, is just over $6 million. The actual value is higher than this because one of the rings is of a value which cannot now be estimated.

In relation to the goods, the subject of Charge 1, all of which have been pawned by the 1^st accused, resulted in her receiving $688,850. That was paid in cash to the 1^st accused. The value of the goods stolen is, as I say, $6,082,000 plus the value of the golden ring, which cannot now be ascertained in terms of value. The property that is subject of Charge 1, which was still in possession of the various pawnshops was redeemed by the second-named victim for just over $891,000. Some property, the subject of Charge 1, cannot now be redeemed. The Summary of Facts indicate that 9 earrings, a karat gold ring with diamond, a necklace, 2 bangles, 5 rings and one bracelet were not able to be recovered. Regrettably, no information was provided as to the value of that specific aspect of the property.

Charge 2

The theft by the 1^st accused in relation to Charge 2 involved the taking of two valuable watches. They were valued at $200,000 in total and the 1^st accused received a total of $17,000 in cash from the pawnshop. The watches cannot now be redeemed.

Charge 3

In relation to the theft by the 1^st accused in relation to Charge 3, the total value of that which was stolen was $6,800. Those items were recovered by the police following a search of the room of the 1^st accused on 4 September 2019.

Charge 4

In relation to the 4^th charge of theft against the 1^st accused, some of the property was passed into the possession of the sister of the 1^st accused. She returned what she had. The total value of the property taken under this charge was $4.814 million. However, it is to be recalled that $4,000 in cash was taken under this charge and that was not recovered. Everything else was recovered.

Charge 5

In relation to Charge 5, the value of the stolen property was $2.235 million. There was some further property which cannot now be valued. The property was taken to two pawnshops, which paid a total of $240,250 in cash, which was paid to the 2^nd accused who passed it to the 1^st accused. By the intervention of the police, the second-named victim paid $342,000 to redeem the property which was held by the pawnshops in question. All of the property was recovered.

Charge 6

In relation to Charge 6, the total value of the property stolen was $1.265 million. It was pawned by the 3^rd accused on the instructions of the 1^st accused. The second-named victim paid $217,730 to redeem the property which was pawned. All of it was recovered.

Overall value of items stolen

In terms of ascertained value, the value of that which was stolen by the 1^st accused has a value of $14.6 million. However, in relation to Charges 1 and 5, some of the property stolen was characterised in the Admitted Facts as having a value which could not now be ascertained.

Two other figures need to be borne in mind in considering this case. The second-named victim spent $1.45 million in redeeming property from the various pawnbrokers. Further, the 1^st accused received a total of $946,100 as proceeds of pawning what was done by herself or by the 2^nd or 3^rd accused on her behalf.

Handling stolen goods value

2^nd accused

In relation to the 2^nd accused, she pawned property on the instructions of the 1^st accused. This is reflected in Charges in 7, 8, 9 and 10. The total value of the property pawned by the 2^nd accused was $2.1 million, plus additional property, the value of which cannot now be ascertained. The pawnshops paid a total of $220,250 to the 2^nd accused who passed that money to the 1^st accused. The second-named victim paid a total of $316,514 to redeem property pawned by the 2^nd accused.

3^rd accused

In relation to the 3^rd accused, who faces Charges 11, 12, 13, 14, 15 and 16, she pawned the property given to her on the instructions of the 1^st accused. The total value of the property pawned by the 3^rd accused is $1.145 million. The second-named victim paid $204,960 to redeem the property.

Admissions under caution

The 2^nd accused and the 3^rd accused admitted they pawned the property, which is the subject of the charges they faced, on the instructions of the 1^st accused. They returned the proceeds of the property they pawned to the 1^st accused.

Procedural history

Following their arrest, each of the accused was put up before a magistrate. To say the least, there were many, many adjournments. Throughout those adjournments, each of the accused remained in custody. On 7 June 2021, the 1^st, 2^nd and 3^rd accused appeared before Mr Daniel Tang Siu-hung, sitting as a permanent magistrate in the Eastern Magistracy. At that time, all of the accused pleaded guilty to the charges in the file and admitted the Summary of Facts. The learned magistrate ordered that the 1^st, 2^nd and 3^rd accused be committed to this court for sentence. The 4^th accused, who is the sister of the 1^st accused is, as I understand it, to be transferred to the District Court for trial. I understand that the charge she faces concerned the property she voluntarily returned to the victims.

Counsel for each of the accused has confirmed the plea tendered by their respective clients and confirmed their admission of the facts on the file. On that basis, each of them was convicted as charged.

Antecedents and Mitigation

1^st Accused

The 1^st accused is a 47-year-old woman. She was married with one son. Her husband died very recently. She has worked as a domestic helper for many years. She worked initially as a domestic helper in Singapore and later in Hong Kong. She left Hong Kong for some time to start a family, but returned in 2010 and was employed with the husband and wife, who are the victims of these offences. She was paid a monthly salary of $4,500. Her late husband and her 16-year-old son formerly lived and live in the Philippines. She is the main breadwinner of the family.

The 1^st accused has no previous convictions.

Counsel for the 1^st accused told me that the apparent genesis of the crimes was the ill-health of the mother of the 1^st accused. The mother suffered with diabetes and, ultimately, kidney failure. She required intensive hospitalisation and that involved dialysis. The cost of the dialysis on a monthly basis was several times the total salary of the 1^st accused. She borrowed money from loan companies and friends, and eventually began to steal money from her employer. She estimates that she received something of the order of a million dollars from the pawning of stolen goods, from directly pawning them or from money received from the 2^nd accused and the 3^rd accused. Through her counsel, it is contended that all of the money realised from the pawning of the stolen property was used for the medical expenses of the mother of the 1^st accused, or to repay loans borrowed by the 1^st accused in order to pay for the medical treatment of her mother.

Sadly, her mother has died. The medical certification confirms the history of renal failure. Illness, including the consequences of diabetes and renal failure, does not strike only those who can afford to pay for the treatment required. Regrettably, the Republic of the Philippines does not have the superb community-funded medical services that we are the beneficiaries of in Hong Kong, and the medical treatment such as that which was required for the mother of the 1^st accused can place a terrible burden on persons such as the 1^st accused.

Counsel informs me that the accused is genuinely remorseful for her conduct.

Another dimension of the conduct of the 1^st accused is that she roped in the 2^nd accused and the 3^rd accused to assist her in pawning the stolen property. Sadly, she has landed two other persons in serious trouble as well. I think the 1^st accused is also remorseful having done that.

I am informed, and I accept, that the 1^st accused, on the completion of her sentence, wishes to return to the Philippines to rebuild her life with her family. It is submitted by counsel that these crimes were committed in extraordinary circumstances born of desperation to alleviate the suffering and to prolong the life of the mother of the 1^st accused.

2^nd Accused

The 2^nd accused is a woman aged 32. She is single. She has worked as a domestic helper in Hong Kong since 2015. She has no previous criminal record. The 2^nd accused provides support for her parents, a younger brother and sister in the Philippines. She is the niece of the 1^st accused.

The 2^nd accused assisted in the recovery of the property that she had pawned. She did so voluntarily and at the time she provided assistance she was not under police investigation. She directed the owners of the property to places where the goods had been pawned. She provided her own identity card and identified her own signatures to the pawnbrokers and, in this regard, facilitated the recovery of the stolen property.

3^rd Accused

The 3^rd accused is aged 50. She was also born in the Philippines and worked in Hong Kong as a domestic helper since 1996. She is married, but with no children. Her husband lives in the Philippines. She has no previous criminal record. She also assisted in the recovery of the property she had pawned at the behest of the 1^st accused.

I will return to the assistance provided by the 2^nd accused and the 3^rd accused later in these reasons.

Relevant principles of sentencing

Theft

General

The crime of theft can be committed in a multitude of ways. The degree of seriousness varies. On any view, the theft in this case is a theft involving a breach of trust.

Section 9 of the Theft Ordinance provides for a maximum penalty of 10 years.

Appellate courts have provided guidance as to the proper approach for sentencing in theft cases involving a breach of trust. As a matter of recent history, we first see this in R v Barrick (1985)  81 Cr App R 78.

That was followed for many years in Hong Kong. The guidelines in Barrick were re-visited in R v Clark [1998] 2 Cr App Rep 137. In turn, the courts of Hong Kong followed Clark.[1]

An application of the Barrick and Clark guidelines appears in the case of the Secretary for Justice v Chan Boon Ning CAAR 1/2002, where the chairman of a publicly listed company stole HK$81 million. The case was characterised as a breach of trust case and the Court of Appeal held that the starting point, after trial, of 9 years was appropriate.[2]

The guidelines in Barrick and Clark suggest a range of sentences by reference to the British pound. However, exchange rate, inflation and a recognition of circumstances germane to Hong Kong has clearly motivated the establishment of guidelines set out in the Court of Appeal in HKSAR v Cheung Mee Kiu in [2008] 1 HKC 113 and shortly after that, the Court of Appeal revisited the guidelines in Cheung Mee Kiu in HKSAR v Ng Kwok Wing [2008] 4 HKLRD 1017. The amount stolen is an important component. It is only one component of the approach to sentence articulated in these decisions. What has been retained from Barrick is the consideration of a range of factors germane to the sentencing in this kind of case.

Reverting to Barrick, Lord Taylor CJ considered the kind of offender which fell for consideration under this heading. He observed:[3]

“The type of case with which we are concerned is where a person in a position of trust, for example, an accountant, solicitor, bank employee or postman, has used that privileged and trusted position to defraud his partners or clients or employers or the general public of sizable sums of money. He will usually, as in this case, be a person of hitherto impeccable character. It is practically certain, again as in this case, that he will never offend again and, in the nature of things, he will never again in his life be able to secure similar employment with all that that means in the shape of disgrace for himself and the hardship for himself and also his family.”

His Lordship also articulated a series of factors for consideration in the imposition of sentence as follows:[4]

“(i)  the quality and degree of trust reposed in the offender including his rank;

(ii)  the period over which the fraud or thefts have been perpetuated;

(iii)  the use to which the money or property dishonestly taken was put;

(iv)  the effect upon the victim;

(v)  the impact of the offences on the public and public confidence;

(vi)  the effect upon fellow-employees or partners;

(vii)  the effect on the offender himself;

(viii)  his own history;

(ix)  those matters of mitigation special to himself such as illness; being placed under great strain by excessive responsibility or the like; where, as sometimes happens, there has been a long delay, say over two years, between his being confronted with his dishonesty by his professional body or the police and the start of his trial; [and] finally, any help given by him to the police.”

It may be that Taylor CJ did not have the position of domestic helpers in mind when he wrote the foregoing. However, suitably adapted, those observations are perfectly apt to the present situation.

The guidelines articulated in Cheung Mee Kiu and Ng Kwok Wing so far as the guideline for sentencing by reference to property taken is as follows:

$1 million to $3 million, a sentence of 3 to 5 years

$3 million to $15 million, a sentence of between 5 and 10 years

Mode of sentencing

When there is a multiplicity of offences before the court, a sentence should always be imposed for each individual offence. Each offence requires a sentence which properly reflects the criminality involved in its commission. See: HKSAR v Chan Nai Keung & Ors [2008] 2 HKC 378.[5] The individual sentences in such a case should, where appropriate, be adjusted for totality to reflect the overall criminality of the conduct. This is especially important in a case where, as here, there was a deliberate series of takings over a substantial period of time.

Recovery of property

A substantial quantity of property was recovered. There are six factors involved, germane to this case:

(1)  the efficiency of the police in identifying the property pawned by one or other of the accused;

(2)  the payment of money by the second-named victim to pawnbrokers to recover the property;

(3)  the recovery of a bag of stolen property as a result of the actions of the sister of the 1^st accused returning property to the residence of the victims on 5 September 2019 - although it is not explicit in the Summary of Facts, the only reasonable inference is that this was done because it became apparent that the 1^st accused had been arrested;

(4)  property found in the room of the 1^st accused when that room was searched by the police;

(5)  the 2^nd accused voluntarily assisted in identifying where certain property was pawned and assisted in the recovery from the pawnshops of that property; and

(6)  the 3^rd accused voluntarily assisted in identifying where certain property was pawned, assisted in the recovery from the pawnshops of that recovery.

The conduct of the 2^nd and 3^rd accused was voluntary in the sense they went to the second-named victim and offered their assistance. They informed her about property which the victims did not know about at the time had been stolen and enhanced the scope of the recovery thereby. Neither the 2^nd accused nor the 3^rd accused was a suspect at the time. They had done wrong in assisting the 1^st accused. I am sure that what they did with respect to the recovery of the property was them doing what they thought was right.

The recovery of property in the ways I have identified has diminished the actual loss to the victims. However, for the purpose of sentence, the recovery could not be considered to be restitution. See HKSAR v Guan Liqing and Others CACC 148/2005. There is conceivably a factual distinction between the case of Guan Liqing and Others and the present case in the sense that in Guan Liqing and Others, the appellants were trying their very best to get away with the property and were simply not very good at it and got caught as a result of efficient police work.

In the present case, there is a marginal difference. Nevertheless, the property, welcome though it was, could not be equated to restitution which may have had a profound effect on the mitigation available in a case such as the present. That said, in my judgment, the conduct of the 2^nd and 3^rd accused in relation to their efforts to assist in the recovery of the property is a relevant mitigating factor in respect of their position.

The value of the goods stolen, calculated in monetary terms is, of course, a primary factor in the assessment of sentence. Also relevant is the sentimental value of the items stolen. Further, it may be objected that some of the property was recovered, partly as a result of the victims paying the pawnshops for redeeming the property. In some senses, that expenditure in paying the pawnshop could be arguably set off against that which was recovered. However, I am not sure that that kind of set off can be assessed in terms of monetary value. I am less sure that it is appropriate to do so. I am greatly assisted by the submissions of counsel for the 1^st accused in relation to the issue of loss, but even if I was to agree that net loss as he submitted, I am less sure how much assistance this is in terms of mitigation. Counsel for the 1^st accused suggests that the net loss was something of the order of $1.655 million.

Principles of sentencing in relation to handling stolen goods

Section 24 of the Theft Ordinance provides a penalty for an offence of handling stolen goods as 14 years’ imprisonment. That may be contrasted with the penalty for theft which is 10 years’ imprisonment (Section 9, Theft Ordinance).[6] In R v Webbe [2002] 1 Cr App Rep(S)  22, the English Court of Appeal recognised a wide range of circumstances in which the offences can be committed. In the context and in an attempt to provide sentencing guidelines for the events of handling stolen goods, Rose LJ observed:[7]

“3. The difficulty of issuing guidelines in relation to handling arises from the enormous variety of possible sentences according to the circumstances, as pointed out by Lord Lane CJ, in Patel (1984)  6 Cr App R(S)  191 at pp 192 to 193. The offence is triable either way and can attract a penalty within the range of a conditional discharge or modest fine at one end, to many years’ imprisonment, up to the maximum of 14 provided by Parliament, at the other.

4. The particular feature of handling which marks it out from most other offences is that it is, by definition, ancillary to another offence in a way which can conveniently be described as secondary to a primary offence. Because the primary offence may be, for example, shoplifting or armed robbery, the degree of gravity of the secondary offence can vary accordingly.”

Those observations are equally apt for this jurisdiction. The authorities reveal a range of circumstances which might be called professional “fencing” operations. Some of those operations, in a sense, drive the thief and select the goods to be stolen and, thus, handled. There are other professional fencing operations which are reactive. There are also small-time operations where a small quantity of stolen available goods are disposed of. The present case provides an example of where the thief clearly used two handlers as a means of distancing herself in the pawning of some of the items of stolen goods. There is no evidence that either of the two handlers received any reward for what they did. It is not intended by the comparison with professional fencing to suggest that there was some sort of sentencing scale. The point that is being made is there is a wide range of culpability that attaches to stolen goods.

In HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360, the Court of Appeal (Yuen JA, Beeson and McWalters JJ)  reviewed and approved the critical aspects of the decision in Webbe. In particular, the Court of Appeal endorsed a list of aggravating factors relevant to the handling of stolen goods. That list is as follows:

“(1)  The closeness of the handler to the primary offence (we add that the closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

(2)  Particular seriousness in the primary offence.

(3)  High value of the goods to the lower, including sentimental value.

(4)  The fact that the goods were the proceeds of a domestic burglary.

(5)  Sophistication in relation to the handling.

(6)  A high level of profit made or expected by the handler.

(7)  The provision by the handler of a regular outlet for stolen goods.

(8)  Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurising addicts to steal in order to pay for their habit.

(9)  As is statutorily provided by section 151(2)  of the Powers of Criminal Courts (Sentencing)  Act 2000, the commissions of an offence while on bail.”

The English Court of Appeal in Webbe also recognised that there were mitigating factors which a sentencer might take into account. These factors were[8]:

“We also agree with the mitigating factors identified [amongst] those relevant by the sentencing panel: namely, low monetary value [for] the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree with the panel that other factors to be taken into account include personal mitigation, ready co-operation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by section 152 of the Powers of Criminal Courts (Sentencing)  Act 2000, a timely plea of guilty.”

Suitably adapted to the circumstances in Hong Kong, the foregoing provides a comprehensive list of topics that any sentencer should consider.

In 2016, the Sentencing Council of England and Wales provided guidelines which declared, amongst other things, that the guidelines considered in Webbe (above)  had been superseded. This set of guidelines covers offences under the Theft Act and includes guidelines for the handling of stolen goods. Guidelines published by the Council are statutorily recognised. Section 125 of the Coroners and Justice Act 2009 requires the courts of England and Wales to follow the guidelines unless the court is satisfied that it would be contrary to the interest of justice to do so. So far as the considerations for sentencing both in terms of aggravating factors and mitigating factors, when one compares the Webbe - endorsed list with the 2016 guidelines, there is not a great deal of difference between them. As to the quantum of sentence it is fair to say that both in respect of theft (and, in particular, cases involving a breach of trust)  and handling, would attract lower levels of sentence in England and Wales than those which are considered appropriate in this jurisdiction.

Plea of guilty

In HKSAR v Ngo Van Nam [2016] 5 HKLRD 1, the Court of Appeal (Lunn and Yeung VPP, and Macrae JA (as he then was))  restated principles upon which a discount might be accorded to a person who had pleaded guilty. Where the accused pleaded guilty at the earliest practicable opportunity, a discount of 33 per cent is appropriate. In the circumstances of this case, it is appropriate to consider what the Court of Appeal said about the nature of the discount and to the extent to which the discount recognised remorse. In that regard, the court observed:[9]

“In contrast to the approach in sentencing in Scotland and Australia, as evidenced in the judgments of the courts of those jurisdictions, in Hong Kong to a considerable extent this court has elided the difference between the utilitarian value of a plea of guilty and the subjective factor of remorse. So, other than in exceptional circumstances, the remorse of a defendant who pleads guilty is taken to be subsumed in the discount of one-third afforded for a plea of guilty. As noted earlier, this court has used the phrase the “high watermark” in a number of judgments in reference to the one-third discount to describe the fact that remorse is subsumed in [the] discount. Notwithstanding that the practice does not reflect a pure, principled approach to sentencing, we are satisfied that it is not only well established but also working in practice. Accordingly, we are satisfied that it is appropriate to continue sentencing on that basis.”

Impact of a crime on its victim

The impact of a crime on its victim is relevant to the imposition of sentence. This has been the position for many years. It is true that the recognition of the relevance of the impact of the crime on its victim to the impact of sentence is said to have been further articulated in recent times. In R v Lui Wai Chun & Ors [1946-1972] HKC 111, the Court of Appeal (Huggins, Pickering and Leonard JJ)  observed:[10]

“Without going at length into the principles of punishment there is one element in particular which we think was not accorded the weight it deserved from the learned trial judge. Although the courts must always endeavour to take an overall view of cases which come before them and not be unduly affected by any one section of public opinion, they must bear in mind that society has, in taking from the victims of crime and their relatives the satisfaction of personal vengeance, transferred to the courts the duty of ensuring that punishments are not so lenient that the victims or [their] relatives will be tempted to take the law into their own hands. [In] the case of Mawaz Khan and another v R [1965] HKLR 720, 740, gives an example of what may happen when a court is thought to have been too lenient. While not suggesting that there is any evidence that the relatives of the deceased in the present case would feel disposed to take the law into their own hands yet we cannot but think that they, and indeed the public at large, could justifiably be uneasy at what must seem to them a sentence disproportionate to the harm done. The sentence must fit not only the offender but also the offence.”

In Jago v District Court of New South Wales (1989)  168 CLR 23, the High Court of Australia, Mason CJ, together with Brennan, Deane, Toohey and Gaudron JJ, also considered the position. Brennan J observed that the interests of victims have “generally gone unacknowledged until recent times”.[11] His Honour held that that includes an interest in seeing that justice is done. Certainly, in more recent times there has been more emphasis on the sentencing court ensuring that within proper limits the concerns of the victim are considered. In this context, the notion of what is appropriate is, to be within proper limits, is defined by:

(1)  the laws of evidence and procedure; and

(2)  the fairness and balance in the treatment of the person to be sentenced.

The rules of evidence operate in sentencing proceedings. There is sometimes, and perhaps more accurately, often, a perceived relaxation of the rigors of the rules of evidence but they nonetheless apply.[12] The contents of the rules of evidence relevant to sentencing on a plea of guilty are discussed briefly below.

Procedurally, the victim does not become a party to the proceedings. The present proceedings remain proceedings between the Hong Kong Special Administrative Region and the individual accused. In strict law, the victim does not have a right to be heard, and in strict law, the statement of the first-named victim is inadmissible in criminal proceedings in Hong Kong.

Of course, that is not the end of the matter. The sentencing jurisprudence of Hong Kong recognises the importance of victims of crime and recognises the impact of crime on a victim is a relevant consideration.[13] However, in this regard, it is clear that Hong Kong is lacking in a statutory provision to recognise the importance of victims in the criminal justice system. In 2007, Hong Kong started well, the Department of Justice published the Victims of Crime Charter. In 2009, the Department published a Statement on the Treatment of Victims and Witnesses. That detailed how the Department of Justice, and, in particular, the prosecution service of that department, should treat victims of crime. That Statement confirms there is much more to the interest of victims than simply being heard in sentencing proceedings. It could be fairly said that in this respect both the Charter and the Statement were important steps in the protection and recognition of the rights of victims. However, when one compares this to the legislation in Australia, Canada, New Zealand, the United Kingdom and the United States of America, Hong Kong is way behind. We have clearly talked the talk, but we have certainly not walked the walk.

The best example of the statutory recognition for the rights of victim can be seen in the Canadian Victims Bill of Rights, which was enacted in 2015. In brief, and clearly expressed statements of principle, the Canadian legislation sets forth rights for victims. The most relevant provision in that legislation is Article 15, which declares:

“Every victim has the right to present a victim impact statement to the appropriate authorities in the criminal justice system and to have it considered.”

There is, so far as I can see, detailed legislation to bring this principle into operation. Same can be said in New Zealand. That country has enacted the Victims’ Rights Act in 2002. Same can be said in each of the states of Australia and the Commonwealth. What started well in 2007 and 2009 in Hong Kong needs legislative attention.

As a matter of principle, it is self-evident that the court should take into account the impact of criminal conduct on the victim of the conduct. However, in Barrick, Lord Taylor CJ explicitly declared that the effect on the victim was a relevant factor in sentencing.[14]

Pursuant to the administrative directions derived from the Statement of the Treatment of Victims and Witnesses issued by the Department of Justice, the court was supplied by a statement of the first-named victim. Regrettably, that was delivered to the court in the afternoon of the day before the schedule hearing for the sentencing and disposition of the accused. On the date of that hearing, I assented to a request by counsel for the 1^st accused to adjourn the hearing in order that he may obtain instructions about some of the assertions in that statement. There were a multitude of reasons asserted for that, but perhaps the most critical one was that on a fair reading of the statement it challenged principal components of the mitigation advanced by the 1^st accused. That component was that the sole motivation for the theft was to obtain money for the medical treatment of the mother of the 1^st accused.

The use to which money or property was dishonestly taken was specifically identified as a sentencing consideration in Barrick (above). One of the central contentions of the statement of the first-named victim was that the 1^st accused had used the money derived from the pawning of the items stolen on what I might characterise as “lifestyle”. Further, it alleged that part of the money had been used to purchase property and motor vehicles in the Philippines.

Statement of the first-named victim gave as a source of her information about the use of the money realised from the pawning of her property by or on behalf of the 1^st accused was things that she had seen on the social media platform, Facebook. That was also the source of information about other disreputable acts said to be committed by the 1^st accused which, with one exception, I do not propose to detail in these reasons. The exception is that the statement, at least clearly implies that the 1^st accused stole property owned by one or other of the victims of these thefts other than that which is the subject of the charge sheet.

Instructions have now been obtained by those representing the 1^st accused. The 1^st accused maintains her position with respect to the purpose of the money realised from the victims. She specifically denies the other allegations in the statement of the first-named victim. Given that it was the prosecution who sent the statement of the first-named victim to court (as was their duty under the Statement on the Treatment of the Victims and Witnesses, I specifically enquired of the prosecutor what the position of the prosecution was as to the assertions which I have outlined earlier. The effect of his answer was that the prosecution had no intention of taking those assertions any further.

There is one assertion in the statement of the first-named victim which can be acted on. She described the nature and extent of the trust she reposed in the 1^st accused and how she felt that by stealing the property, the subject of the charges, she felt, in effect, violated and betrayed. The content and manner of those assertions could not fail to move anyone who read them. In common with every other item of information that a court might properly receive, information concerning the victims’ feelings concerning the offence enunciated in such a victim impact statement must be evaluated. After all, such information may have the effect of aggravating the sentence. In this case, it was accepted by counsel for the 1^st accused that these assertions were likely to be true. I accept them as true. They accord with common experience. They are plainly relevant to sentencing and, as will shortly appear, I will take them into account in aggravation of penalty.

Rules of evidence on a plea of guilty

A plea of guilty is an admission to the elements of the offence. Any matters in aggravation must be proved either by adducing evidence or by admission.[15] In the present case, there are extensive admissions made by each of the accused in the course of committal proceedings. If any further facts in aggravation of sentence are to be taken into account, they must be proved to the criminal standard.[16] Where matters are advanced in mitigation of penalty, a difference standard applies. Generally, when mitigating factors are provided to the court which are both plausible and uncontradicted, the judge should proceed to sentence on the basis of that mitigation.[17] If the accused person seeks to advance mitigation in contradiction of the Summary of Facts agreed in the case, the burden lies on the accused to establish those facts on the balance of probabilities.[18]

Application of sentencing principles

Theft

The 1^st accused is, on any view, a person who was in a position of trust. Counsel for the 1^st accused did not dispute that proposition. The line of authorities, starting with Barrick onwards, expressly deal with a different form of trust relationship. But, suitably adapted, the considerations identified in Barrick are relevant to the sentencing of the 1^st accused.

A starting point for analysis in this sentencing in this form of theft must be the value of the goods stolen. That many of the goods were recovered, albeit that the cost to the victims does not diminish this fact.

A critical issue in mitigation is whether the proceeds went to pay, in one way or another, for the medical treatment of the mother of the 1^st accused. In mitigation, counsel for the 1^st accused contended the 1^st accused had taken out loans to pay for her mother’s treatment. She used the proceeds of the pawning of these items to repay those loans and also to pay for her mother’s treatment. In Barrick, the English Court of Appeal identified that the manner in which the stolen property was used is a relevant item of sentencing.[19] The application of the proceeds of theft to the payment of medical bills of the mother of the 1^st accused is well capable of being cogent mitigation. On its face, taking account of the principles of evidence which govern the evaluation of facts in issues of sentencing, the application of the proceeds in this manner is, on its face, plausible. The plainest implication of the victim impact statement asserts that they were (1)  not used for this purpose, and (2)  were used for the acquisition in the Philippines of property and vehicles either for the 1^st accused or to a person said to be her boyfriend. Indeed, if those assertions made in the victim impact statement were true, they would, in my opinion, constitute matters which would aggravate penalty.

As I have pointed out, the source of these assertions by the first-named victim is the social media platform of Facebook. I pressed the prosecution in order to understand whether the assertions in mitigation of penalty made by those representing the 1^st accused were challenged. The answer was in the negative. As a result of this, applying the rules of evidence, I am not satisfied that it is proved that the use of the funds by the 1^st accused was to fund the acquisition of property or vehicles. If I was to rely on such assertion as a matter of aggravation in penalty, the law requires that I must be satisfied of that fact or those facts to the criminal standard. On no account, would it be appropriate to rely on assertions derived from Facebook. I have not seen the Facebook posts referred to by the first-named victim. I have no way of ascertaining the truth that what might be said on Facebook about this offence. In case there is any doubt about it, this finding is not to be understood to question the assertion by the first-named victim that she saw such matters about the use of the proceeds of the crime on Facebook. My rejection is based on not being prepared to accept the primary source: Facebook. My rejection is also not based on the proposition that under the law of Hong Kong assertions made in victim impact statements which are challenged are inadmissible. I do not need to get to that position.

In these circumstances, I propose to proceed on the basis of the mitigation advanced by the 1^st accused. As I say, it is plausible. There is plausible evidence of the treatment of the mother of a victim for kidney failure and there is plausible evidence of the death of the mother of the 1^st accused as a result of kidney failure. I regard those contentions as plausible and therefore I accept that she had a deep anxiety about the medical position of her mother at the time of her thefts and applied the money realised by the pawning of the stolen goods for that purpose.

As I have indicated, I accept as true that the first-named victim would have felt, as I have put it, violated and betrayed by these thefts. Common experience is the relationship between the employer and employee in this form of employment reposes a great deal of trust on the part of the employer and this was plainly violated. That the trust is violated is, in a sense, a foundational basis for sentencing in this form of theft: it is not just the money or goods taken, but the trust reposed in the thief. In breach of trust cases, the sentences traditionally imposed are somewhat higher than for other forms of theft. The true explanation of that approach to sentencing must be derived from the nature of trust between victim and thief.

Before proceeding to fix the starting point for the various thefts, there is one other feature of the conduct of the 1^st accused which I should discuss. I am firmly of the view that she shamelessly used the 2^nd accused and the 3^rd accused. I deeply suspect lies were told. The 2^nd and 3^rd accused were exploited. However, as it will shortly appear, I take this exploitation as a matter of mitigation of penalty in relation to the 2^nd accused and the 3^rd accused. But no matter how adverse my view of the 1^st accused is in this respect, this is not something I can take into account in determination of the appropriate penalty for the 1^st accused because I am permitted to sentence only for the theft and not the conduct which occurred after the theft.

Further, there is at least an implicit allegation in the victim impact statement of the first-named victim that there were other acts of theft on the part of the 1^st accused. I expressly declare that any determination of the sentence in relation to the 1^st accused is in no way affected by this allegation. The allegations form no part of the charges levelled against the 1^st accused.

The overall value of the items stolen by the 1^st accused is $14.6 million. By reference to the decision of the Court of Appeal in Ng Kwok Wing (above), for thefts involving property between $1 million to $3 million is attracting between 3 and 5 years after trial, and for theft where the taking is between $3 million and $15 million, then appropriate starting point will be 5 to 10 years.

So far as Charge 1 is concerned, the value of the goods is $6,082,000, plus the value of the golden ring in respect of which the value cannot be ascertained. I fix a starting point for this offence at 5 years and 6 months.

As far as Charge 2 is concerned, the value of the goods stolen was $200,000. I fix a starting point of 3 years’ imprisonment.

So far as Charge 3 is concerned, the value of the goods stolen was $6,800. I impose a starting point of imprisonment for 1 year in respect of this charge.

So far as Charge 4 is concerned, the value of the goods that were stolen was just over $4.8 million. I fix a start point of 5 years’ imprisonment for this charge.

So far as Charge 5 is concerned, the property stolen was valued at $2.235 million. There is some further property stolen which cannot now be valued. I fix the starting point in respect of this charge at 4 years.

So far as Charge 6 is concerned, the property stolen was valued at $1.265 million. I fix a starting point of 3 years’ imprisonment in respect of this charge.

The conduct which found these charges occurred on separate occasions. Indeed, viewed as a whole, the thefts occurred over a substantial period of time and on no account could they be regarded as continuous accounts. The consequence of this is that in strict theory, the sentences for each of the charges should be consecutive. It is relevant to note that the guidelines which culminated in the decision in Ng Kwok Wing (above)  speak of theft amounting to $15 million as attracting a starting point of 10 years’ imprisonment. While this would obviously have to be the basis of one act of theft, it is a factor I consider to be relevant.

It would be wholly unjust to impose consecutive sentences in this case. That would amount to 21½ years. As a starting point, I consider the totality of 8 years’ imprisonment as an appropriate starting point. And I propose to achieve that by making partly consecutive and partly concurrent sentences as follows: Charge 4 to be served partly consecutively to Charge 1 to the extent of 2½ years of Charge 4 to be consecutive. The balance of the charges will be served concurrently with Charge 1.

For the reasons I have articulated in outlining the principles of sentencing as I understand them, so far as the 1^st accused is concerned, she should be sentenced on the basis of what she has taken. I have made no allowance for the fact that substantial quantities of goods was recovered. It is true that these were recovered and, to the extent they were recovered this has partially mitigated the loss to the victims. To the extent, the items were recovered, in one sense, the victims have been deprived of their property from between the time of the taking to the time of recovery. Further, recovery counted the cost in terms of money expended by the victims to redeem items pawned. There is no evidence the 1^st accused assisted in this recovery.

The 1^st accused is entitled to a full one-third discount from the starting point. That discount is to recognise the plea of guilty and the 1^st accused taking responsibility for her conduct. The one-third discount factors in the remorse of the 1^st accused. As I have indicated, I accept as true that the accused is deeply remorseful. However, noting the manner in which the remorse is to be taken into account in discounting the sentence pursuant to the analysis by the Court of Appeal in Ngo Van Nam (above), I propose to leave the discount of 33 per cent. I specifically decline, in her case, to enhance the discount as is contemplated in exceptional circumstances contemplated by the Court of Appeal.[20] Further, I propose to enhance the discount from the starting point of 33 per cent by a further 5 per cent to reflect the mitigation which I consider appropriate, including the previous good character of the 1^st accused and the motivation which I find underlay the taking of the property, that is, for the provision of medical treatment for the mother of the 1^st accused. The discount accorded to the 1^st accused might have been greater, but it has been scaled back to a small extent because I have to take into account two factors in relation to the impact on the victims.

Those two factors which I consider should scale the discount which might otherwise have been accorded to the 1^st accused, firstly the impact of the thefts on the victims, for obviously the sense of violation and betrayal felt by the first-named victim. I have no direct information about the feelings of the second-named victim, but I cannot imagine that he was in any way immune to this sense of betrayal and violation. The second factor is while there has been substantial recovery, albeit a recovery at a cost to the victims, some property was fully lost. The second factor I mention largely for completeness and its effect on sentence was minimum.

In the result, the starting point for sentence will be discounted by 38 per cent. Each of the starting points which I have considered to be appropriate will be discounted accordingly and I have arranged the scope of consecutive and concurrent sentences to consider the overall sentence discounted by 38 per cent. I will come back to the details of that at the end of these remarks.

Handling stolen goods

Both the 2^nd accused and the 3^rd accused pawned the items, the subject of the charges, relevant to their position at the instigation of the 1^st accused. Neither of them derived any personal benefit or profit from this conduct. They handed over the proceeds of the items that they pawned to the 1^st accused.

Neither the 2^nd accused nor the 3^rd accused were in a position of trust with respect to the property owners. However, they must have realised that by pawning the items they were assisting a person who was in a position of trust when they disposed of these items. That does not appear to me to be one of the items considered to be an item of aggravation in Webbe (above), but I do not take the list to be exhaustive. I consider these factors to be some aggravation of the offence.

The 2^nd accused assisted in the recovery of the items she pawned. She directed the owners to the relevant pawnshop. While this is not restitution in the fullest sense, assistance in the recovery of stolen items, particularly as it was voluntary, counts in favour of the accused. What it tells me is while the 2^nd accused must have realised that what she was doing was wrong in pawning the items, she did try to put the matter right by assisting in the recovery of the items she had pawned, and it appears to me she has done that voluntarily. At the time it was done, she was not a suspect and it could not be said that this was done out of some motivation to minimise her culpability. As I say, I am sure she did what she did because she thought it was the right thing and that counts in her favour.

The first item of consideration in the Webbe list is the closeness of the handler for the primary offence. In the case of the 2^nd accused and the 3^rd accused, they were close relatives and there is an element of closeness. However, I do not consider this was the kind of thing contemplated by the English Court of Appeal.

The second item of aggravation is the seriousness of the primary offences. On any view, the primary offences were serious. As a result of her plea of guilty, the 2^nd accused must have realised the items that were pawned by her at the request of 1^st accused were stolen. However, there is no evidence she was aware of the total amount taken by the 1^st accused. So, in terms of seriousness of the primary offence, I proceeded on the basis that this is to be evaluated by reference to the amount that the individual accused pawned. Even when the items pawned by the 2^nd accused are considered by themselves, the thefts involved were serious. The total value of the property pawned by the 2^nd accused was $2.1 million, plus an additional property, the value of which cannot now be ascertained.

The pawnshops paid a total of $220,250 to the 2^nd accused, who passed that money to the 1^st accused. The second-named victim paid a total of $316,514 to redeem the property pawned by the 2^nd accused. As I have already indicated, while it cannot be said that the conduct of the 2^nd accused by itself involved a breach of trust, she must have realised that the items she was pawning were obtained as a result of a breach of trust. It is submitted by counsel for the 2^nd accused that the 2^nd accused was deceived into doing what she was doing. At one stage in mitigation, it was faintly suggested that an aspect of the deception practised upon her was that the employer had given the items to the 1^st accused. Given the plea and the nature of the admission in the Summary of Facts, that suggestion was untenable. I am also prepared to accept that, in the case of the 3^rd accused, she was shamelessly used by the 1^st accused. It was suggested that she had no idea of the wealth of the victims. That might be. However, I consider that to be utterly irrelevant.

The third consideration identified by the English Court of Appeal was the high value of the goods to the loser, including sentimental value. This is, in a sense, bound up with the second consideration to which I have just made reference because the value of the goods stolen has an impact on the seriousness of the offence.

There was an obvious sentimental value of the items and, in my opinion, that must have been obvious to both the 2^nd and 3^rd accused. However, as counsel for the 2^nd accused has correctly observed, such an aggravation as arises in this third heading has to be ameliorated to a substantial extent by the voluntary assistance provided by the 2^nd accused, and indeed the 3^rd accused, in relation to the recovery of the items.

Finally, the fourth consideration is whether the items were taken in a domestic burglary and that is not relevant for the present case.

The next aspect of aggravation is the sophistication of the operation. It is simply not a sophisticated operation at all. Both the 2^nd and 3^rd accused pawned the items, the subject of the charges, using their own identity cards.

The next item is the degree to which a profit, expected or realised, by the handler of the stolen goods. And in the specific circumstances of the present case there was no profit at all.

Next item to be considered relevant aggravation is the provision of the handler a regular outlet for stolen goods. I am sure that the English Court of Appeal in Webbe would not have considered the 2^nd accused and the 3^rd accused to fall under this heading. The kind of conduct contemplated under this heading is directed at the kind of fencing operation which is, in a sense, open to all comers. The mere fact that the 2^nd accused and 3^rd accused did this on more than one occasion does not bring them within the scope of this aspect of the aggravation. Therefore, even if I am wrong about this, I consider the aggravation is somewhere between mild and non-existent.

The other factors of aggravation in Webbe are non-existent.

Dealing now with the items in Webbe which are considered to be in mitigation, those have been largely considered in the context of balancing the aggravating factors. The offences could not be considered one-off. Nevertheless, they could not be considered to be a protracted series of events in the sense that both the 2^nd accused and the 3^rd accused were taken advantage of by the 1^st accused in a fairly shameless way. Conduct of the 2^nd accused occurred between June 2018 and the end of November 2018. In contrast, the conduct of the 3^rd accused occurred between May 2018 and June 2019.

In relation to the charges against the 2^nd accused and the 3^rd accused, neither individual charge nor the Summary of Facts admitted by the accused identify the value of the items in each charge. I imply no criticism of the prosecution by making that observation.

What we have is a total value of the property taken in paragraphs 22 (in respect of the 2^nd accused)  and 29 (in respect of the 3^rd accused)  in the Summary of Facts, together with the amounts realised in the acts of pawning the property and the amounts expended by the redemption of the property from the pawnshops. It seems to me to be a fool’s errand to try and apportion either the value of items stolen and the amount received on pawning for the items, to the extent that it is relevant to the amount expended in redeeming the items as between individual charges. Although, ordinarily, individualised sentences should be imposed for each charge, there is simply no rational basis upon which that can be done in the present case. Accordingly, in relation to each of the charges facing the 2^nd accused and the 3^rd accused, I have determined that an overall sentence will apply and I will order that this sentence be imposed on each count of the counts faced by the accused and I will order that each count will run concurrently. I have read mitigation letters from the 2^nd accused and the 3^rd accused which powerfully articulate their remorse. I have received a letter from the former employer of the 3^rd accused. Clearly, the employer and his family care about the outcome of the case for the 3^rd accused. The employer speaks highly of the 3^rd accused and I am grateful for those expressions of concern and, I must say, I was moved by that letter. It has reassured me as to the correctness of the disposition of this case in relation to the 3^rd accused.

There are differences between the accused in terms of the value of the items pawned and what was realised from the pawning. The value of the 2^nd accused is higher than the 3^rd accused. On the other hand, the accused committed more acts of handling over a somewhat more protracted period. It is plain beyond argument that the value of the stolen items is an important, but not necessarily decisive factor. This is a difficult sentencing exercise. If ever the proposition that sentencing is an art and not a science was to resonate, this has to be the case. What I have done is treat both the 2^nd accused and the 3^rd accused as approximately equal in terms of culpability.

What I have done with respect to the 2^nd and 3^rd accused is to make an allowance in the discount for sentence to take account of her cooperation with the owners’ property and the police. I have done the same with both accused. Both accused voluntarily assisted police to recover the stolen items. I am sure it is correct to say that in respect of both of them more property was recovered as a result of their voluntary efforts than would otherwise have been recovered, and that is a commendable thing. I am sure that with both the 2^nd and the 3^rd accused in doing what they did, they were doing right and they were attempting to put right what they had done which was clearly so very wrong.

In relation to the 2^nd accused and the 3^rd accused, I am sure that they are deeply remorseful. They have made full admissions to the police. They will receive a discount for their plea of guilty. As noted a little earlier, the discount to be accorded to the accused for a plea of guilty subsumes the element of remorse. The Court of Appeal in Ngo Van Nam (above)  suggested that there might be exceptional circumstances in which further account could be taken of remorse and that a discount above that traditionally accorded to an accused person might be appropriate[21]. I have slightly enhanced the discount to reflect their deep remorse and the fact that they have been shamelessly used by the 1^st accused.

Although sentencing for handling stolen goods is very fact-specific, it seems to me that there is some guidance in previous decisions. In the 1980s and early 1990s, a series of decisions suggest that the normal range of imprisonment for the crime of handling is between 2 and 4 years. See R Tang Ho Yeung v R [1980] HKLR 357, R v Chan Wing Kwan & Anor CACC 121/1985 and R v Chiu Ko Wai & Anor [1992] 2 HKCLR 219. Chan Wing Kwan & Anor is instructive because the goods handled in that case were valued at about a million dollars. The Court of Appeal (Roberts CJ, McMullin VP and Barker JA), held that the normal range of sentence is between 2 and 4 years, and that for the offence of the kind in contemplation before them, a sentence of 2 years was appropriate.[22] It is worth noting that $1 million, in that case, was in 1985 dollars. In Chan Wing Kwan & Anor, it is also authority for the proposition that is, generally speaking, the authorities reveal that the sentence for the handlers should be less than the sentence for the thief.[23] The decision in Chan Wing Kwan & Anor could not be said to set a tariff. There are decisions of intermediate appellate courts in Hong Kong which approve of sentences above 2 years for the handling of goods of either the equivalent amount or indeed, even lower.[24] However, what distinguishes those cases from the present case is the degree of sophistication and organisation which is absent in the present case.

In my opinion, the appropriate starting point for sentence of the 2^nd and 3^rd accused is 2 years and 3 months. That is higher than the sentence in Chan Wing Kwan v Anor, however, I regard the 2^nd accused and the 3^rd accused as more culpable than the handler of the stolen goods in Chan Wing Kwan V Anor. Both of the accused persons are of previous good character and have no previous convictions. While I am sure they were both pressured by the 1^st accused in committing this crime and were taken advantage of, they knew what they had done was wrong. I am sure that in providing the assistance they did, cooperating with the police and pleading guilty at the first opportunity, they were reverting to what is more consistent with their character. In relation to the 2^nd accused and 3^rd accused, the starting point will be discounted by 40 per cent to take account of their plea of guilty and their deep remorse, and recognition of their respective voluntary cooperation in this case.

Disposition

Would the accused please stand up.

So far as the 1^st accused is concerned, the sentence I pass upon you is as follows:

Charge/ Amount Stolen	Starting Point	Sentence after discount
Charge 1 - $6,082,000	5 years and 6 months	3 years and 4 months
Charge 2 - $200,000	3 years	1 year and 10 months
Charge 3 - $6,800	1 year	7 months
Charge 4 - $4,814,400	5 years	3 years and 1 month
Charge 5 - $2,235,000	4 years	2 years and 5 months
Charge 6 - $1,265,000	3 years	1 year and 10 months

As I have indicated, in looking at the totality of the starting point, I thought a totality of 8 years would adequately reflect the serious criminality of the 1^st accused. On the basis of a discount of 38 per cent from the starting point and because of the issue of totality, I order that the sentence on Charge 2 be served partially consecutively to that on Charge 1 to the extent of 1 year and 7 months. The balance of the sentence on Charge 2 is to be served concurrently to Charge 1. The sentences imposed on the other charges are to be served concurrently to Charge 1. That makes a total of 4 years and 11 months an d that is the order of the court. The 1^st accused may sit down.

So far as the 2^nd accused and the 3^rd accused are concerned. I pass upon each of you a sentence on the basis of which is a starting point of 2 years and 3 months, which after discount of 40 per cent is that you will serve a term of 1 year and 4 months. And each of the sentences on each of the charges is to be served concurrently. And that is the order of the court.

(Proceedings from 11.00 am to 12.06 pm not required)

COURT: Charge 2, the starting point should have been 1 year and 2 months. And the discounted sentence for that should have been 8 months. And the order of the court is that the sentence on Charge 4 be served partly consecutively to that on Charge 1 to the extent of 1 year and 7 months. The balance of the sentence on Charge 4 is to be served concurrently with Charge 1 and the sentences imposed on the other charges are to be served concurrently with Charge 1.

That remains a total of 4 years and 11 months. So that is the order of the court.