HKSAR v. CHAN KA PO JOSEPH

CACC 29/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 29 OF 2000

(ON APPEAL FROM DCCC 463/1996)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 11 January 2000, the Applicant pleaded guilty in the District Court before Judge Wright to a charge of handling two high value motor cars on 3 January 1996, which were respectively a Mercedes Benz and a BMW. The Applicant was sentenced to four years' imprisonment against which he now seeks leave to appeal.

2. The judge fully explained in his Reasons for Sentence why he was imposing a term of four years and, in doing so, more than adequately set out the factual basis of the case against the Applicant. This was to the effect that on the night of 2 January 1996, the police had established observation on a mill in the New Territories. The activities which the police observed after their arrival, until 3.00 a.m. on 3 January, established that a 40 foot long container was being made ready for something. Then, at about 3.00 a.m., two motor vehicles were driven into the mill. Using makeshift ramps, the two motor vehicles were then put inside the container and the container doors were closed leaving a number of people inside the container. It was subsequently discovered that the vehicles inside the container were valued in excess of $1,000,000.

3. The judge particularly noted that the BMW had been parked near City Hall at only 6.30 p.m. on 2 January. It was stolen from the parking area. As for the Mercedes Benz, this had been parked just before or possibly just after midnight, a few hours before it was put into the container, in Pokfulam. Both motor vehicles had been left locked with car alarms activated.

4. The judge found it "quite obvious" that the two motor vehicles had been stolen with a view to being exported from Hong Kong. The judge went on to say:

"Returning to the events in the early morning of 3 January, once the motor vehicles and persons were inside the container, the police went into the mill. They directed the persons inside the container to emerge. When one of the police officers started to open the door of the container, six persons inside rushed out. Amongst those six persons was the (Applicant) who was found to be wearing gloves. When he was cautioned, he admitted having agreed to load the motor vehicles into the container and indicated that he had been promised a financial reward once they had been secured inside."

Later the judge continued by saying:

"Quite clearly, at the time when the offence was committed, the (Applicant) would have appreciated the nature of the offence he was in fact committing. The loading of valuable motor vehicles into a container at night in a lonely area is hardly an act which one would associate with innocent conduct.

The courts have frequently said, when dealing with sentences for handling stolen property, that the criminality and the moral blameworthiness of those who handle the goods is usually every bit as great as that of the original thieves. This, of course, is because the persons who steal the goods rely on the handlers to dispose of their gains, and it is also because the handlers carry out their role in full knowledge that the goods have been stolen and, in this sense, condone the actions of the thieves.

Subsequent to the events of 3 January 1996, six of the accused were dealt with in the District Court. One of them pleaded guilty. Other accused were convicted after trial. The court that dealt with the accused called for various reports, but in the end, imposed immediate custodial sentences. The court took differing starting points of between 3 and 3 1/2 years' imprisonment dependent upon the respective roles of the accused. The ultimate sentences varied dependent upon the

The reason that the (Applicant) was not de mitigating factors in respect of each different accused. alt with in those proceedings is that he absconded from his bail. He has remained at large for some three years and was arrested on warrant in December 1999."

5. The judge later went on to say:

"It is a well established principle that the concept of a disparity of sentences does not apply where different accused are being sentenced by different judicial officers (obviously this is a reference to the other sentencing judge) on different occasions. It is the duty of a sentencing court to impose the appropriate sentence in respect of the offence and the offender before it, and to do so irrespective of the sentences that may have been imposed by other judicial officers (R v So Hung-lee [1986] HKLR 1049).

I bear in mind when approaching the issue of what starting point I should impose that the goods were valuable; that they clearly were to be removed from Hong Kong; that even if this Accused were not involved in the organisation of this offence, it was an organised offence; that the role that he played was an integral albeit minor one; and that offences of this nature were common in 1996."

6. The judge then went on to say that the Applicant should be dealt with in accordance with sentencing practice in effect at the time of the offence and he looked for guidance at the Review proceedings in AG v Chan Sik-ming [1996] 2 HKCLR 154, where the Court of Appeal indicated that for an offence similar to the present one, an appropriate starting point was at least 5 years' imprisonment after trial.

7. The judge went on to say:

"The distinction to be made between that case and this is the nature of the vehicle that was stolen and was being removed from Hong Kong. In Chan's case the vehicle concerned was what is referred to as a mechanical horse, whereas in this matter, the vehicles are private motorcars. On any view of the matter, the vehicles in both Chan's case and the present matter before me were valuable. I do not see any real distinction to be drawn between the types of motor vehicles for the purpose of fixing a starting point."

8. The judge then discounted the sentence by 20% to take into account the plea of guilty which had been delayed by three years as a result of the Applicant's deliberate decision to abscond on bail. The judge aptly described the plea as having been "at the last opportunity".

9. Against this background, Mr Paul Fok prepared three perfected grounds of appeal. During the course of the proceedings here today, he has very responsibly and sensibly indicated that in view of the clear reasons for sentence made by the District Court judge, he no longer proposed to advance allegations that the starting point of five years amounted to an error in principle, or that four years' imprisonment was of itself manifestly excessive. Indeed, each of those contentions was unarguable because the plain fact of the matter is that the judge had cited correctly the tariff in 1996 for offences of this kind.

10. What Mr Fok did rely upon, however, was the fact that Judge Whaley had imposed sentences of up to 3 1/2 years on the co-defendants, leaving this Applicant with what he suggested was a grievance by having received a longer sentence than any of the others in his gang. However, once again, we have to say that no error of principle or in approach is disclosed on the part of Judge Wright who sentenced the Applicant. While the Applicant might well have received a shorter sentence if he had been sentenced by Judge Whaley, this court is not here to criticise the starting point adopted by Judge Whaley but to consider whether Judge Wright was justified in imposing a term of four years' imprisonment upon the Applicant.

11. We are satisfied, for the reasons that Judge Wright so plainly and cogently set out, that the sentence he imposed cannot be criticised. Accordingly, the application is dismissed.