HKSAR v. Xiao Wei

CACC000225/2003

CACC 225/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 225 OF 2003

(ON APPEAL FROM DCCC 85 OF 2003)

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Coram: Hon Stuart-Moore VP, Stock JA and Lugar-Mawson J

Date of Hearing: 21 November 2003

Date of Judgment: 21 November 2003

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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 3 June 2003, the Applicant, aged 21, was found guilty of dishonestly handling a stolen wrist watch, valued at about $11,200, following a trial in the District Court before Judge Wright. He was sentenced on the same day to four years' imprisonment against which he now seeks leave to appeal.

2.The facts were very simple and many of these were agreed. The stolen watch represented part of the proceeds of a domestic burglary which took place on 30 October 2002 in Fanling. The victim was disturbed by an intruder at 4.50 am. He gave chase but was unable to catch the burglar.

3.At 10.30 am that day, less than six hours after the burglary, the Applicant pawned the stolen watch in Mongkok. He obtained $3,500 from the transaction. In doing so, the Applicant produced the two-way permit which had enabled him to come to Hong Kong from the Mainland. The pawnbroker recorded the Applicant's name, permit number and the address of the hostel where he was staying.

4.On 7 December 2002, the Applicant came to Hong Kong once more. He was arrested at the Lo Wu Border Crossing. When interviewed about his connection with the watch, he said that he had asked a friend he knew as "Lee Ping" to lend him some money. This, he said, led Lee Ping asking him to pawn the watch and, having done so, he was given $1,000 from the proceeds.

5.The Applicant, despite his comparative youth and his Mainland domicile, has a formidable criminal record in Hong Kong. He was convicted three times in 1998 of remaining without authority having landed unlawfully in Hong Kong. The first and third of those appearances were coupled respectively with charges of theft and burglary. In what must have been a very short time after his release from his last sentence which was imposed on 11 November 1998, he was once again before the court. This was on 26 May 1999 when he faced five charges of burglary. Later in the same year, on 16 November 1999, he appeared again in court on two charges of attempted burglary and an offence of remaining in Hong Kong without authority. The Applicant's sixth appearance in a Hong Kong courtroom was on 3 February 2000. On this occasion, he again faced charges of burglary and unlawfully remaining in Hong Kong. In the following year, on 14 November 2001, he was sentenced to 18 months' imprisonment for attempted burglary.

6.With this background, the judge remarked in sentencing that:

"It is well-established that a person who handles stolen goods receives a sentence certainly not less than would have been appropriate for the thief. The thinking behind this is because people who handle stolen goods are people who provide a facility for thieves to dispose of the property that they have acquired.

This property was stolen in a burglary in occupied domestic premises at night. That would attract for a person of clear record a starting point after trial of 3 years' imprisonment...." (Appeal bundle pp. 13-14)

After this, the judge dealt with the Applicant's record before saying:

"The Court of Appeal in HKSAR v Chan Pui Chi [1999] 2 HKLRD 830 has recognised that where a person persistently re-offends, particularly with the same type of offence, a higher starting point is justified. The court said (at page 833):

'The fact that the applicant had a criminal record cannot by itself necessarily increase his sentence...... Whilst it is always important for the sentencer to bear in mind the general principle that a defendant is being sentenced for the offence which has brought him before the court and not for previous offences for which he has already served the penalty, the constant repetition of (the defendant's criminal conduct) had itself increased the gravity of these offences, at least so far as sentence is concerned. The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest.'

Whilst I accept that this may be the first charge of handling, the .... other offences that you have committed in the last 5 years are so closely allied that that principle applies.

There is a further aggravating feature in your case. I am satisfied on the evidence as a whole that you came to Hong Kong for the purpose of committing offences of this nature. The Court of Appeal has reminded lower courts of the necessity to guard against double sentencing by taking that as an aggravating feature where a person is also charged with an immigration offence.

So that matters are readily comprehensible, I indicate that for the offence of which you are now convicted, enhanced because of the principle that I quoted, I will take a starting point of 3 1/2 years' imprisonment. The sentence which I am going to order you to serve, however, is one of 4 years' imprisonment, taking into account the additional aggravating feature of having come here for the purpose of offending. You are to serve 4 years' imprisonment." (Appeal bundle pp. 13-15)

7.Mr McGowan, on whom we do not need to call, submitted in two written grounds of appeal that the sentence was manifestly excessive. Firstly, he contended that the starting point of three years for the handling offence was too high in itself and, secondly, he complained that a two-fold enhancement for both persistent offending and entering Hong Kong for the purposes of committing crime revealed an error of principle in that this amounted to a double-punishment on this element of the Applicant's sentence.

8.When advancing the first ground in his written submission, Mr McGowan placed some emphasis on the words of Roberts CJ in the penultimate paragraph of the judgment in R v Chan Wing-kwan & Anor, CACC 121/1985 (unreported), where he said:

"An examination of a number of other cases of handling of stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled."

9.Mr McGowan also invited our attention to a most helpful schedule which had been prepared to illustrate that, judging from other Court of Appeal decisions, a starting point of three years or above, in handling cases arising from burglary or robbery, seemed to be reserved for more serious offences than the circumstances justified in the instant case.

10.Whilst correctly recognising that the sentencing guidelines for handling stolen goods, given on 2 May 2001 by the English Court of Appeal, in R v Bernard Webbe & Ors (unreported), provide no assistance in themselves to Hong Kong's sentencing tariffs, Mr McGowan was nevertheless able to draw some support from an examination of the aggravating factors the court in that case had said should be taken into account before arriving at an appropriate sentence, emphasising that most of these did not apply to the Applicant's offence. These were set out in R v Bernard Webbe & Ors (at paragraph 20) as follows:

"1. The closeness of the handler to the primary offence. (We add that closeness may be geographical, arising from presence at or near the primary offence when it was committed, or temporal, where the handler instigated or encouraged the primary offence beforehand, or, soon after, provided a safe haven or route for disposal).

2. Particular seriousness in the primary offence.

3. High value of the goods to the loser, including sentimental value.

4. The fact that the goods were the proceeds of a domestic burglary.

5. Sophistication in relation to the handling.

6. A high level of profit made or expected by the handler.

7. The provision by the handler of a regular outlet for stolen goods.

8. Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit.

9. As is statutorily provided by section 151(2) of the Powers of Criminal Courts (Sentencing) Act 2000, the commission of an offence while on bail."

The court went on (in paragraphs 21-22) to say:

"We also agree with the mitigating factors identified as being among those relevant .... namely, low monetary value of the goods, the fact that the offence was a one-off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree .... that other factors to be taken into account include personal mitigation, ready co-operation with the police, previous convictions, especially for offences of dishonesty and .... a timely plea of guilty."

11.It was rightly submitted that the burglary, albeit committed in the early hours of the morning, was not accompanied by threats of violence or with the assistance of dangerous weapons and, in any event, there was nothing to show that the Applicant had any direct knowledge of the means by which the watch had been stolen; that the value of the stolen goods was not especially high, his profit being, on his account, limited to $1,000; and that the Applicant revealed a considerable lack of sophistication in his method of converting the stolen watch into a sum of money when providing details about himself through which he could be (as indeed he was) traced.

12.Having considered these matters, we incline to the view that on the present facts a starting point of three years was manifestly excessive. In our judgment, a starting point of 18 months was appropriate.

13.Mr McGowan's second ground of appeal amounted to a suggestion that the judge had inadvertently enhanced the starting point in respect of two factors in aggravation of the offence which were effectively the same, resulting in a doubling of the enhancement. It was argued that the enhanced sentence of six months for being a persistent offender and a further six months for having come to Hong Kong "for the purpose of offending" was in reality saying the same thing twice, justifying no more than enhancement on a single basis if, indeed, such was justified at all bearing in mind that this was the Applicant's first conviction for handling stolen goods.

14.There is some force in the suggestion that the Applicant had received a double-enhancement for what amounted to a single aggravating feature. The aggravation of the offence, for the purposes of sentence, lay in the Applicant's persistence in coming to Hong Kong to commit crimes of dishonesty. His flagrant disregard of the law demonstrated that he was not in the least deterred by the kind of sentences which had been previously imposed on him. Indeed, it seems from a comment made by the judge when sentencing, that the Applicant had managed to persuade the courts, until 2000, that he was a juvenile. In the result, he had received much lighter sentences than he would have been given as an adult.

15.However, taking the other point Mr McGowan raised on this aspect, although this was the Applicant's first offence of this specific kind, it bore considerable similarity to his previous offences and involved, as all his previous offences of dishonesty had done, coming to Hong Kong with criminal intent.

16.In all the circumstances, we consider that the enhancement, adopting the principle to which the judge had correctly referred in HKSAR v Chan Pui-chi (above), should have been nine months, making an overall sentence of two years and three months' imprisonment.

17.Accordingly, we shall grant leave. Treating the hearing as the appeal, we shall quash the sentence of four years and substitute this with a term of two years and three months' imprisonment. To this extent, the appeal succeeds.

Representation:

Mr P.K. Madigan, SGC, of the Department of Justice, for the Respondent.

Mr James H.M. McGowan, instructed by Messrs Ng, Lie, Lai & Chan (assigned by Director of Legal Aid), for the Applicant.