R. v. TAM SIMON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL Nos.489 & 490 of 1996

------------------------

----------------------

---------------------

J U D G M E N T

---------------------

1. This is an appeal against sentence in two cases involving the same Appellant.

2. In MA489 of 1996 (appeal from TMC No.11800 of 1995), the Appellant pleaded guilty to one count of taking conveyance of a vehicle without authority, one count of driving a vehicle without a valid licence and one count of driving a vehicle without third party insurance. He was sentenced to six months in respect of the first charge, one month in respect of the second, such sentence to run consecutively with the first and in respect of the third charge, was fined $3,000 and disqualified for holding all classes of driving licence for two years.

3. In MA490 of 1996 (appeal from TMC No.11533 of 1995), the Appellant pleaded guilty to two counts of theft from a vehicle and two counts of taking conveyance of a vehicle without authority. He was sentenced for the two thefts to a three months imprisonment each, both sentences to run consecutively to one another and for the two charges of taking conveyance, to 12 months imprisonment each, both sentences to run concurrently but consecutively to the six months imposed on the theft charges.

4. In other words, in MA489 of 1996, he was sentenced to a total of seven months and in MA490 of 1996, he was sentenced to a total of 18 months. The Magistrate who dealt with both cases together also activated a six month suspended sentence. As a result of these sentences and order, the Appellant will have to serve a total of 31 months imprisonment.

5. The facts are straightforward and not disputed by the Appellant. In connection with MA489 of 1996, it seems that at the early hours of 5th November 1995, the Appellant was seen by officers driving a vehicle in a carpark. He was then circling around but not parking. He was stopped by the officer. He admitted that he had taken the vehicle by prising open the door and starting the ignition system and that he had driven the vehicle to Yuen Long to pick up his friends and then went back to the carpark. In connection with MA490 of 1996, it appears that he was stopped by a police when he was coming out of certain premises, a search was conducted and some stereo equipment which had been stolen earlier were also found. It seems that the charges of taking conveyance involved vehicles EC9876 and GD931, the first one taken between 11th and 13th August 1995 and the second on 27th July 1995. The two thefts involved the stealing of a car plate from vehicle FG2336 on 13th August 1995 and of equipment from vehicle GD931 on 29th July 1995, the vehicle which was the subject matter of one of the 2 taking conveyance charges.

6. Counsel submitted that the sentence of 12 months imprisonment in respect of each of the two charges of taking conveyance in MA490 of 1996 were out of line with the authorities and were too severe. He further argued that the learned Magistrate was wrong in imposing a deterrent sentence by reasons of the fact that the Appellant was a repeated offender. Counsel relied on the cases of Leung Yam Hung, Crim. App. No.526 of 1986, Wu Yat Cheung, Crim. App. No.1107 of 1975 and Vy Van Tien & another, [1991] 1 HKLR 422. Finally he submitted that the total sentence of 31 months for the two cases and the activated suspended sentence was two harsh and severe and that the learned Magistrate had not sufficiently applied the totality principle.

7. The Appellant is now 22 years of age. He has 17 previous convictions, two of which were for taking conveyance of vehicles, one for tempering with a motor vehicle and one for possession of unlawful instrument. The learned Magistrate called for a background report. Apart from setting out the background of the Appellant, the probation officer concluded that there was no motivation on the part of the Appellant to reform and that there was no indication of any remorse.

8. In passing these sentences on the Appellant, the learned Magistrate took into account a number of matters. At page 15 of the Appeal Bundle, he said :

"When sentencing him on 13 March, 1996, I took into account the facts of the case, his guilty plea, his previous records, the background report, mitigation made on his behalf and the totality principle. His records and the facts showed that he was a repeated offender embarking upon stealing from vehicles and taking conveyances. Some deterrence got be imposed in the sentence. The only factor which was in his favour was the guilty pleas."

9. The learned Magistrate took the view that the thefts from vehicle showed the Appellant intended to use the car plate to facilitate further taking conveyance. He decided that the sentences of three months each for the two thefts should be consecutive because of the difference in the nature of the property stolen. He also imposed six months for taking conveyance in MA489 of 1996 because it was committed a few months after the previous two charges of taking conveyance and because of the totality principle. However, he ordered it to be consecutive to the sentences in MA490 of 1996. He also saw no reason why the suspended sentences should not be activated.

10. In the case of Leung Yam Hung, the Court of Appeal, having quashed a conviction of a more serious charge, substituted a six month imprisonment on a plea, which came only in the course of the trial, to taking conveyance without authority. Silke J.A. said at page 4 :

"The sentence passed upon the taking of the conveyance charge was one of 12 months' imprisonment. One of the reasons given by the trial judge, based on the matter as it then stood before him, for the passing of this sentence was that there is a distinction to be drawn between taking a car for a joy-ride and taking one for the purpose of committing a serious crime. He felt that the taking away here fell into the second category. That reason has, of course, now gone. We think that a sentence of in or about 6 months would have been the appropriate for an isolated charge of this nature without the overlay of the taking of the car for the purpose of participation in a serious criminal offence."

11. In Wu Yat Cheung, the taking conveyance without authority was for the purpose of trying to evade arrest. The Court of Appeal having considered the other sentences for robbery, substituted a three month sentence for the taking conveyance offence. That was imposed having regarded to the 21/2 years' imprisonment for a robbery in that case.

12. Apart from these cases, I do not think there are any authorities setting down the usual tariff for taking conveyance of vehicles. Both counsel had not referred me to any such authority. It does appear that there can be a wide range in the sentence for such offence, ranging from the case of a person taking a car for a joy-ride at one end to a person taking a car in connection with the participation of a serious crime at the other. One has to bear in mind that the maximum penalty upon a conviction on indictment is seven years. Without setting a guideline for this type of offence, I should think that the sentence of 6 to 12 months imposed in the present case after a plea cannot be regarded in any way as wrong in principle or manifestly excessive. I note that in these two cases, what happened was that on three different occasions, the Appellant took conveyance of three vehicles without authority. The total sentence of 18 months consisting of 12 months in the first case for the two offences (both to run concurrently) and six months in the second case would mean effectively 18 months for a succession of similar offences committed within a period of a few months. This cannot be regarded as excessive.

13. With regard to the criticism that the learned Magistrate had punished the Appellant twice because he was a repeated offender, I do not think there is any substance in it. There are clear authorities to the effect that in a case where a person had a history of multiple offences of a similar nature in the past, the court is entitled to take a higher starting point. This is not to say that a defendant is to be punished twice. It is simply that while the defendant had been punished for the past offences, he clearly has not learned any lesson and a greater deterrent sentence may be necessary to be effective.

14. The only thing which I would have some reservation is the sentence on one of the theft counts. It is of course correct that in the two thefts, the appellant had stolen different articles. However I note that in one case, what he had stolen was in fact the equipment inside the car of which he had taken conveyance. For that charge, he has already been given a sentence of 12 months which takes into account the fact that he did not take the car for a joy-ride but for some other criminal purpose. In the present case that criminal purpose was the theft. For this reason, I think that the three months for one of the thefts should run concurrently with the 12 months sentence for the taking conveyance charge.

15. In respect of the activation of the suspended sentence of six months, I agree with the learned Magistrate that there is simply no reason why it should not be activated. I think the general approach is that unless there are good reasons, the court ought to activate the sentence. Again, this is not to say that he is punished twice. It simply means that the punishment which he deserved in the previous case was postponed on condition that he behaved himself. Apparently he did not but had committed the subsequent offence. I think there is every good reason that the suspended sentence should be activated. However, bearing in mind that the Appellant is still a young person and he has been punished to various sentences regarding other offences. This is the first prison sentence of substance to this young man. In the circumstances, I would think that taking the totality principle, part of these suspended sentence can be ordered to run concurrently.

16. For the reasons which I have set out above, the orders I am going to make are :

(1) the appeal in MA489 of 1996 be dismissed;

(2) the appeal in MA490 of 1996 be allowed in part so that the three months sentence in respect of the Charge No.9 for the theft be ordered to run concurrently instead of consecutively with the other sentences; and

(3) three of the six months suspended sentence which was activated is to run concurrently with the other sentences.

17. As a result of these orders, the total sentence he will be serving is now 25 months instead of 31 months.