R. v. FONG CHUNG CHUNG

IN THE COURT OF APPEAL

1994, No. 375
(Criminal)

____________

_________________

J U D G M E N T

_________________

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

1. On June 16 last year, this applicant, a man in his late 20's, pleaded guilty before His Honour Judge Lugar-Mawson in the District Court to two charges of handling.

2. Both of those instances of handling occurred on the same day, July 1, 1993. In each instance, the stolen property was a Mercedes Benz motor car.

3. Passing sentence sometime later i.e. on July 8 last year, Judge Lugar-Mawson imposed a three-year term on each charge. He made those two terms concurrently to each other so that the total sentence for both offences was no more than the term for each offence, namely, three years.

4. But he made that three-year sentence consecutive to a two-and-a-half-year sentence which the applicant was then serving.

5. That two-and-a-half year sentence had been passed on the applicant by Deputy Judge Thomas in the District Court one week earlier on July 1 last year, following his plea of guilty to one charge of handling four stolen Mercedes Benz motor cars during the period September 29 and 30, 1993.

6. So the totality of the punishment which the applicant received for the two July offences and the one September offence was five and a half years' imprisonment.

7. That result, it is urged by counsel for the applicant, is too severe. And it is contended that such excessive severity resulted from Judge Lugar-Mawson's failure to take totality into account.

8. Standing back, one sees this picture. Six stolen Mercedes Benz motor cars were handled. Two were handled in July, each grounding one charge. Four were handled in September, all grounding a single charge.

9. At the time of the commission of the September offence, the applicant was on bail for the July offences.

10. That factor demonstrates a determination to offend in this way which the court cannot ignore when it comes to assessing the punishment needed in order to arrive at a deterrence proportionate to such determination. And of course, as this Court has said on more than one occasion in the past, the traffic in stolen motor cars in Hong Kong is prevalent and serious and has been prevalent and serious for sometime.

11. The mitigation here was essentially the guilty pleas. There is no reason to think that either of the sentencing judges failed to recognise the credit which those pleas attracted, even though it must be said that the cases brought against the applicant do not seem to have been easy to fight.

12. The applicant's record, while not particularly bad, was unfortunately not clear. He had one previous conviction: being for theft in 1984 when he was put on probation.

13. At the end of the day, this seems to be position. Possibly, Judge Lugar-Mawson could have said more about the totality principle. But it is not to be assumed that he did not have it in mind. And ultimately, one has to look at the result. Looking at the result, it seems to us that the five and a half years, while on the high side, was still within the appropriate range. It was high only in that it was at the top of the range and not in the sense that it was beyond the range.

14. In those circumstances, although we acknowledge the carefully reasoned nature of counsel for the applicant's arguments, we are ultimately unable to accede to them. And leave to appeal against sentence is refused.