HKSAR v. HO WING YIN

CACC 50/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 50 OF 2009

(ON APPEAL FROM DCCC NO. 1120 OF 2008)

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J U D G M E N T

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

1.  This is an appeal against sentence.  Leave to appeal was given on 15 May 2009.

2.  The appellant had pleaded guilty to 9 charges of handling stolen goods.  He admitted to handling 5 stolen trailers and 6 empty containers over a period of 2 months.  On each occasion, he towed the trailer and/or container with his own tractor to Shenzhen through the Lok Ma Chau Checkpoint.  Under caution, he claimed he did so on the instructions of a Mainlander and was rewarded with RMB 6,000 for each transaction.  To facilitate the towing of goods to China, he had made false declarations in the cargo manifests by giving false serial numbers of the stolen trailers and containers to the Customs and Excise Department.  The total value of the goods stolen was HK$600,000.

3.  In sentencing the appellant, Deputy District Judge Eddie Yip (as he then was) took a starting point of 18 months’ imprisonment for each charge.  This was reduced by one-third for the guilty plea, and 12 months was arrived at for each charge.  The judge took into account the totality principle and ordered 6 months of each charge for charges 2 to 9 to be served concurrently with the preceding charge or charges, arriving at a total term of 5 years’ imprisonment.

4.  There is no complaint on the individual sentence of 12 months for each charge.  In passing, we should mention that the starting point of 18 months would seem to be on the low side.  An appropriate starting point should be 2 years or over.  But we are not concerned in this appeal with the individual sentence of each of the charges.  The only ground of appeal is that the judge had failed to take into account sufficiently the totality principle in reaching an overall sentence of 5 years.

5.  It was recognized by the judge there is no tariff guidance for the offence of handling, as the circumstances of this offence would vary greatly.  He referred to the judgment of R v. Bernard Webbe & Ors [2002] 1 Cr App R(S) 82, in which Rose LJ mentioned 9 factors as aggravating the offence of handling at 87 to 88.  As submitted by Mr. David Leung for the respondent, 5 of these factors were present here.  They were as follows:

(1) Closeness to the original offence

The trailers and containers are massive objects difficult to hide, the appellant must have towed them with his tractor to Shenzhen not long after they were stolen.

(2) High value to the loser

The total value of the goods stolen was HK$600,000.

(3) High degree of sophistication

There was a certain degree of sophistication employed.  On each occasion, the appellant had put in false information in the cargo manifest.

(4) High level of profit made

The appellant received a total of RMB 54,000 for the offences he committed.

(5) The provision of regular outlet for stolen goods

The first 6 offences were all committed in July 2008 and some on consecutive days.  Without the appellant's efforts in the disposal of the stolen goods, the thieves would not have been so active in stealing trailers and containers at various car parks in the New Territories.

6.  In addition, there was the element of cross-border criminal activities in the present case.

7.  The factors mentioned by Mr. Leung are no doubt aggravating factors, but it is also necessary to have regard to other matters, which may lessen somewhat the appellant’s culpability.  He was not an organizer or distributor of the proceeds of crime.  Although he had played an important part in the criminal activity, there was no evidence he had advance knowledge of the theft.  Further, he was of previous good character.  That the accused had no record of offences of dishonesty was a mitigating factor recognized in Bernard Webbe, at 88.

8.  Both sides have referred us to authorities.  We consider it necessary to mention only two.

9.  For the appellant, Ms Sylvia Lee cited HKSAR v. Choi Sai San, CACC 80 of 2007, 31 August 2007.  The appellant there pleaded guilty to 1 charge of handling and 3 charges of theft.  The goods involved were 5 trailers and 3 containers.  The trailers and containers were driven by the appellant to Mainland China over a 1-month period and he received a total reward of RMB 34,000.  He was sentenced to a total term of 3 years’ imprisonment and fined a total sum of HK$24,000, in default of payment of which he was to be imprisoned for an additional term of 4 months.  The appeal was in respect of the fine and additional term of imprisonment in default of payment of the fine.  The sentence in respect of the fine was set aside on appeal.  The Court of Appeal regarded that the sentence of 3 years’ imprisonment was sufficient.

10.  Other than the fewer number of trailers and containers involved, the offences committed in the present case bore a close resemblance to Choi Sai San.

11.  The other case is Attorney General v. Chan Sik Ming [1996] 2 HKCLR 154, in which the respondent pleaded guilty to one charge of handling.  He drove a 24-ton goods vehicle to the Lok Ma Chau control point 12 hours after it had been reported missing.  At 157C, the Court of Appeal mentioned the need for deterrent sentences due to the prevalence at the time of the theft of cars which were smuggled into China.  In that context, it was said at 157E an appropriate starting point should be at least 5 years.

12.  In adopting an overall sentence of 5 years after taking into account the guilty plea, the judge would appear to have taken a notional starting point of 7½ years.

13.  We are inclined to think a notional starting point of 7½ years is manifestly excessive.  Taking into account all the circumstances, the appropriate starting point for the overall sentence should be 5 years.

14.  Giving discount for the appellant’s guilty plea and his previous good character, we would allow the appeal and reduce the overall sentence to 3 years.

15.  We order the sentence of 12 months’ imprisonment imposed by the judge on each charge to be served as follows:

2nd and 3rd charges :	to run concurrently with the 1st charge
4th, 5th and 6th charges :	to run concurrently with each other and consecutively to each of the 1st to 3rd charges
7th, 8th and 9th charges :	to run concurrently with each other and consecutively to each of the 4th to 6th charges.