HKSAR v. POON YIU FAI

CAC C 36/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 36 OF 2011

(ON APPEAL FROM DCCC NO. 888 OF 2010)

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BETWEEN

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REASONS FOR JUDGMENT

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

Introduction

1.  On 12 January 2011, following a trial in the District Court before Judge Stanley Chan, the applicant was convicted of two offences, namely, handling stolen goods, contrary to s. 24 of the Theft Ordinance, Cap. 210, and giving false information to a pawnbroker, contrary to s. 18 of the Pawnbrokers Ordinance, Cap. 166.

2.  In respect of the offence of handling stolen goods the applicant was sentenced to 2 years and 3 months’ imprisonment; in respect of the offence of giving false information to a pawnbroker, he was sentenced to imprisonment for one month.  It was ordered that the two sentences be served concurrently, making for an overall sentence of 2 years and 3 months’ imprisonment.

3.  The applicant, who has appeared in person, sought leave to appeal both conviction and sentence.  Having heard submissions we dismissed the applications in respect of both conviction and sentence.  We said that we would give our reasons later and do so now.

Background

4.  On 27 April 2010, an apartment in Hunghom was broken into and a number of items stolen.  Among the items was a woman’s Rolex watch.  Six days later, on 3 May 2010, the applicant, unaccompanied, went into a pawnbrokers shop in Yuen Long where he pawned the stolen watch for a sum of $14,000.  That was the subject of the charge of handling stolen goods.

5.  It was the testimony of the shop assistant who attended to the applicant that, in accordance with standard procedures, he requested sight of the applicant’s identity card, recording the applicant’s name and the number of the identity card.  The assistant further testified that he requested the applicant’s residential address and that was given to him.  After the arrest of the applicant, the evidence revealed that the residential address that the shop assistant said was given to him was not at the time the applicant’s true address.  That was the subject of the charge of giving false information to a pawnbroker.

6.  After his arrest, under caution, the applicant gave an exculpatory version of events.  At trial, his testimony was broadly to the same effect.

7.  When he testified, the applicant said that he had obtained the Rolex watch from a friend who owed him a sum of $8,000.  He did not know the full name of his friend or his friend’s address.  He knew him only as Wu Dong, that being his nickname.

8.  As to the history of how he came into possession of the watch, the applicant said that, by chance, he had met Wu Dong a week or so earlier and had sought repayment of the $8,000 owed to him.  At the time Wu Dong was with his wife and it was his wife who promised that she would arrange repayment.  The applicant said that, on the day on which he pawned the watch, he was contacted by Wu Dong and they agreed to meet in Yuen Long.  Wu Dong brought the Rolex watch to that meeting, saying that it belonged to his wife who had agreed to it being pawned.  They therefore went to a nearby pawnbroker where, according to the applicant, he had had previous dealings.

9.  The applicant said that, as Wu Dong, did not have his identity card on him at the time, he remained outside the shop while the applicant alone went into the shop in order to pawn the watch.

10.  The applicant said that, as he had pawned items with the pawnbroker on previous occasions, the shop already had a record of his residential address.  He was asked if the address had changed and replied that it had not: hence the unintentional error in the address.

11.  The applicant said that he managed to pawn the watch for $14,000.  Outside of the shop, having kept $8,000 for himself, he gave the balance of the cash to Wu Dong and handed him the pawn slip.  He noticed, he said, that Wu Dong immediately threw away the slip.

The application to appeal conviction

12.  The applicant did not submit any written grounds of appeal in respect of conviction.  Before us, as we understood it, it was the applicant’s submission that the judge had been wrong to reject his version of events.

13.  We did not agree.  Acknowledging that it remained for the prosecution to prove its case beyond a reasonable doubt, the judge undertook a careful analysis of the applicant’s version of events.

14.  The judge accepted the evidence of the shop assistant as being both truthful and reliable, coming to the primary finding of fact that the applicant had purposefully given a false residential address to the shop assistant to make it that much more difficult for him to be traced.

15.  The judge further identified various inconsistencies in the applicant’s evidence as well as matters which, in his view, undermined the credibility of the applicant’s case.  The judge rejected the applicant’s version of events as being untrue.  We are satisfied that his reasons for doing so are logical and convincing.

16.  There was nothing to suggest that the applicant’s convictions are unsafe or unsatisfactory.

The application to appeal sentence

17.  In his grounds of appeal, the applicant submitted that the sentence of two years and three months imposed upon him for handling stolen goods was manifestly excessive.  He submitted that the starting point in cases of this kind should be between one year and two years.

18.  There is no tariff in cases of this kind.  The Ordinance, however, provides for a maximum sentence of 14 years’ imprisonment while this Court, in R v Chan Wing Kwan and Another CACC 121/1985 recognised that the normal bracket of sentences will be between two and four years.

19.  In assessing an appropriate starting point for sentence, the judge took into account as an aggravating feature that the applicant had only been released from jail on 1 April 2010, little more than a month before the commission of the offences for which he fell to be sentenced.  We agree that this was an aggravating feature properly to be taken into account more especially when considered in light of the fact that previous sentences imposed on the applicant had proved to be no deterrent at all and the prevention of further repetition was demonstrably in the public interest: see HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 at 833.

20.  To put matters into context, the history of the applicant’s criminal conduct may be summarised as follows.  In 1998, the applicant was sent to a Detention Centre for offences of burglary and robbery. In 2003, a sentence of 4 months’ imprisonment, suspended for 24 months, was imposed for an offence of conspiracy to obtain services by deception.  In 2004, for two offences of obtaining property by deception, and for being in breach of the suspended sentence the applicant was sentenced to 10 months’ imprisonment.  In 2005, for offences of obtaining property by deception and using a false instrument he was sentenced to a total of 12 months’ imprisonment.  In 2009, on appeal his sentence for two further offences of using a false instrument was increased to a total of 20 months’ imprisonment.  He was released from prison on 1 April 2010.

21.  In assessing an appropriate starting point, the judge also took into account the value of the item dishonestly handled by the applicant, a relatively expensive Rolex watch in respect of which he received $14,000.

22.  In the result, in respect of the offence of handling stolen goods, the judge took as his starting point a period of imprisonment of two years and six months, showing a degree of generosity by reducing it by three months on the single basis that the applicant had agreed to most of the prosecution case.

23.  In considering the principle of totality, the judge ordered that the sentence of one month’s imprisonment imposed in respect of the offence of giving false information to a pawnbroker should be served concurrently with the sentence of 2 years and 3 months imposed in respect of the offences of handling stolen goods.

24.  Before us, the applicant made reference to other cases of dishonestly handling stolen goods or theft.  They were of no assistance, each being decided on its own facts.

25.  In our view, the sentence imposed on the applicant was neither wrong in principle nor manifestly excessive.