R. v. LEUNG TEK LEI

IN THE COURT OF APPEAL

1995, No. 533
(Criminal)

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J U D G M E N T

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

1. At trial, which was concluded on 28 July 1995, the applicant faced 11 counts of theft. At the end of the trial, he was either acquitted on the basis that there was no case to answer or acquitted at the end of the trial of all but two of those offences. Deputy Judge Geiser substituted for two of the theft charges convictions of handling.

The background

2. The applicant's locker at the police station, because he was a serving police officer, and his home had been searched. The property in the charges which consisted of CD players, car radios and similar equipment was found there. It appears that two cars had been broken into on 26 June 1994. This property had been taken from them. The applicant had purchased the property, it would seem, on one visit to a hawker's market. The hawker had indicated to the applicant that the property was stolen. The judge found that the applicant believed that this property was stolen. At the end of the case, therefore, properly regarded, the applicant faced one incident of handling the property in charges 6 and 11, the value of which was in excess of $4,000.

3. In sentencing, the judge took into account the circumstances of the offences and the applicant's good record and background, and also considered the effect upon him and his family. However, he also said this:

"Whilst the offences themselves cannot be said to be very serious offences of handling, they are still offences of dishonesty and the fact that the defendant is a police officer, in my judgment, does make a difference. Members of the public are entitled to expect law enforcement officers to uphold the law and not break it."

He sentenced the applicant to 4 months imprisonment on each charge concurrent to be served immediately.

The application

4. Mr McCoy, who appears with Mr Ng for the applicant, submits that in giving weight to the fact that the applicant was a police officer at the time led him into error, because although he was a police officer at the time of the offences, he was not on duty. The offences were not committed in the course of his duty, nor had he taken advantage in any way of his position as a police officer to commit them. Had he done so, of course, that would have made a very considerable difference to any court's approach. So, Mr McCoy submits that if the mitigating factors are taken into account in the case, the sentence was manifestly too severe.

5. The facts are simply these. Being a police officer, he will inevitably be dismissed from the force. Secondly, he loses his pension - a 9-year pension that he has built up. He loses his police quarters. We have heard and accept that the effect upon his family has been very serious indeed.

How should we approach the matter?

6. He is also a man of good character. We are told - and there is no reason to think otherwise - that had just two matters stood on their own, they would have been charged in the magistrate's court. A fine would not have been uncommon for a man of good character.

7. Bearing all these things in mind, we do consider that the sentence of immediate imprisonment was not justified. We treat this application as the appeal. We allow the appeal. We alter the sentence to the extent that we suspend the 4 months imprisonment on each charge concurrent for a period of two years.