HKSAR v. WONG KAM TAT

CACC 446/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 446 OF 2001

(ON APPEAL FROM DCCC NO. 337 OF 2001)

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J U D G M E N T

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Hon Stock JA (giving the judgment of the Court):

1 The applicant in this case was a motor car dealer. He pleaded guilty in the District Court to handling a stolen vehicle and also to two charges of forgery. The forgeries were constituted by falsifying the information on a notice of transfer of ownership and on an application to retain a vehicle registration mark. These forgeries were committed to hide from the authorities and from the purchasers of the vehicle the fact that the vehicle had been stolen.

2 For each of the forgery charges, which were Charges 1 and 2, HH Judge Wright took a starting point of three years' imprisonment and imposed a term of 18 months to run concurrently with each other. In respect of the third charge of handling stolen goods, the judge took a starting point of four years' imprisonment, and imposed a term of two and a half years' imprisonment. He ordered that two years of that two and a half year term was to run consecutively to the 18 months for Charges 1 and 2, the balance to run concurrently, a total therefore three and a half years.

3 The applicant now seeks leave to appeal against those sentences. It is said that the sentences are manifestly excessive and that, in so far as the judge ordered part of the sentences on Charge 3 to run consecutively to the sentences imposed on Charges 1 and 2, they are wrong in principle.

4 It has not been entirely easy from the summary of facts placed before the sentencing judge to be clear about the facts of the case but, with some assistance, we have ascertained what happened.

5 In December 1998 the vehicle, a blue Honda Civic, belonged to a Ms Wong So Kuen. On 31 December 1998 it was stolen. Some six months later she saw it in a car park, although on this occasion its registration number was different. She reported the matter to the police. The chassis number of the vehicle had been changed, as had the engine number.

6 It transpires that only five days after the vehicle was stolen the applicant was forging documents in order to create a false identity for the vehicle with a view to their submission to the Transport Department. Apparently what had happened was that the owner of another vehicle altogether had signed a form in blank, or forms in blank, for the sale of that vehicle but the sale of that vehicle was never registered. The applicant used new forms and that other owner's signature as well as false particulars on the new forms to engineer a false transfer of ownership of the stolen vehicle. As a result, Ms Wong's vehicle now had a new registration number and other new, although important, details which identify a vehicle. The applicant, who was the proprietor of a motor company, then advertised the vehicle for sale. He posed as a private seller, an unattractive and dishonest device intended, no doubt, to induce sale to those who prefer to buy privately. The applicant sold the vehicle to a Mr Tse for $46,000.00 and submitted further documents to the Transport Department to effect that sale. Those further documents do not form part of any charges.

7 Mr Tse then took the vehicle to a garage. The garage personnel were suspicious, rightly so, about the chassis number; so Mr Tse put this concern to the applicant who reassured Mr Tse that all was well and declined to cancel the deal. He was, however, prepared to cancel the deal on the basis that he repaid Mr Tse, not the purchase price, but only $30,000. So here was the applicant offering the buyer, whom he had cheated, to take the vehicle back, so long as the swindled buyer paid the swindler for his troubles.

8 That is the background against which this application is launched.

9 The judge took a starting point for the handling charge of four years' imprisonment. It is said that that is too high, and we have been taken to a series of handling cases including cases of handling stolen vehicles. One of the cases we have studied was Cheng Chun Ming CACC 356 of 2000 in which the Court of Appeal said that:

"Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime."

That is a sentiment which is not restricted to the export of cars, although the export or intended export of stolen vehicles will be an aggravating factor.

10 Whilst it is true that this was not a case of a luxury car, nor a case of stealing or handling a car to export across the border and whilst it was a case which involved but one vehicle, what is a serious aggravating factor in this case is that the applicant was a motor dealer. The judge rightly commented that:

"Motor dealers who act in his fashion provide a ready market for disposal of stolen cars by mixing stolen vehicles in amongst genuine stock."

This is quite different from the case, say, of someone who is merely employed to deliver a vehicle, which he knows to be stolen, to the buyer or to a middle man. This was a dealer using his know-how in the trade to fool an innocent buyer, and to behave as proactively in the whole affair as a handler could. And, then, to add insult to injury he sought to gain further by demanding a profit when the fooled buyer was confronted with the fact that all was not well with the purchase. The cases to which we have been referred do not really assist this applicant. Facts differ, and each case has its own aura, and its own facts, and this is an unusual case on its facts. In our judgment, a starting point of four years' imprisonment for the handling offence was not too high, certainly not manifestly so.

11 As for the forgeries, we do not think that the judge erred in principle in treating them as offences meriting partially consecutive sentences. It is clear that there has been no double penalty; in other words in taking a four year starting point for the handling charge, the judge did not include the forgery element. Looked at in one way, the acts of forgery were not an essential part of the handling; the nature of the offences are markedly different; and the conduct did not involve a single invasion of the same legally protected interest. If, on the other hand, the applicant is right that they were part and parcel of the handling, then one would be bound to say that the handling sentence was too low, for the forgeries were very serious and as the judge said offences of this kind undermine a reasonable system of registration. We would add that the starting points for the forgery offences were also not in the least excessive.

12 A number of mitigating factors relevant to sentence must be mentioned. First, the applicant pleaded guilty. However, that plea came late. It came only after the close of the prosecution case, after nine witnesses were called and four days of trial had proceeded. The applicant also had a clear record. Furthermore, after his plea of guilty, he raised the funds with which to repay to Mr Tse the purchase price of the vehicle. This was restitution at the very last moment and, although it counts for something, it must be viewed in that light.

13 Having fixed the starting points for the individual offences, the judge approached sentencing in a somewhat unusual way. Instead of giving credit for mitigating factors and reducing the sentence from a starting point for each offence accordingly, thereby imposing the correct sentence for the individual offence, and only then looking at totality; he looked first at overall or global totality as a starting point which he set at five years; then gave 20% reduction for the plea, and six months reduction for the restitution, and thereby arrived at the total of three and a half years; and then adjusted the individual sentences accordingly. In the result, the applicant was sentenced to 18 months' imprisonment for each forgery charge which reflected a discount of 50% from the starting point for those offences; and a sentence of two and a half years for the 3rd charge which reflected a discount of 371/2% from the adopted starting point. As a result, and in the event, we think that the sentences for the individual offences were too low.

14 The 20% discount which the judge thought warranted for the very late pleas might well be thought to be, if anything, on the generous side. If one assumes that, with the restitution, a total discount of, at most, 30% was warranted, the correct sentences in respect of Charges 1 and 2 would have been two years' imprisonment on each charge; and for Charge 3, two years and nine months. If three and a half years for all the offences was then thought appropriate as a totality, and we are satisfied that that totality is not impeachable, then a correct order would have been for the sentences in respect of Charges 1 and 2 to run concurrently; with one year and six months of the sentence on Charge 3 to run consecutively.

15 Be that as it may, the total imposed of three and half years was not in our judgment excessive. The individual sentences, as we have illustrated, favour the applicant, and we shall not in the event alter them. But the application for leave to appeal against the sentence is without merit, and it is dismissed.