Ip Kiu-koi v. The Queen

CACC000234/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 234 OF 1972

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Coram: Rigby, C.J., McMullin and Leonard, JJ.

Date of Judgment: 14th August, 1972.

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JUDGMENT

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Rigby, C.J.:

1. The appellant pleaded guilty to the charge preferred against him of dishonestly receiving stolen property, to wit, 47 cases of brandy knowing or believing the same to have been stolen. The offence is now known as handling stolen property contrary to the provisions of Section 24 of the Theft Ordinance. The appellant was charged at the same time together with a man named MAN Kar-chiu, who was charged with the separate and distinct offence of burglary; a charge to which he pleaded guilty.

2. The brief facts of the case were that on the morning of the 1st of January the man, MAN Kar-chiu, took a truck to a godown at which he had previously worked and by means of false pretences he prevailed upon the storekeeper at that godown to allow him to take away 47 cases of brandy. Apparently, he took that brandy straight to the present appellant and the appellant purchased the whole of the 47 cases from him for a sum of $17,500 being $6,500 in cash and a cheque for the balance of $11,000. The wholesale value of those 47 crates of brandy amounted to $27,890. The appellant paid the sum of $17,500, saving himself a little over $10,000 on the deal.

3. The matter came to the attention of the Police who investigated the case. The appellant at first denied all knowledge of the possession of the brandy but subsequently, as the result of the action of a third party, he admitted possession of part of that stolen consignment of brandy and later, indeed, he admitted having received possession of the whole consignment. 43?crates of brandy were recovered and the appellant apparently gave information to the police as to where the remaining 3?crates, or the contents thereof, could be recovered. We are informed that none of those crates, or their contents, were recovered and the value of the missing property is $1,462.50.

4. So much for the brief facts of the case. The man who stole the brandy and who pleaded guilty was dealt with by another judge and he was fined the sum of $2,500. The present appellant was not dealt with at the same time because he originally pleaded not guilty. However, when the case came before the judge who in fact dealt with it the appellant withdrew his plea of not guilty and pleaded guilty. The learned judge, having heard the facts of the case and the plea in mitigation that was put forward, then imposed a sentence of nine months' imprisonment, and it is against that sentence that the appellant now applies for leave to appeal.

5. The appellant is a married man aged 32 with one child. It is true to say that he has been 17 years in Hong Kong and that he has no previous convictions. He was sentenced on the 14th of March and he remained in prison awaiting the hearing of this appeal until the 29th of April when he was released on bail. He was, therefore, in custody for a period of about six weeks serving sentence.

6. It is said that this was a sudden, momentary temptation, and Mr. Yu has urged upon us that the appellant is, of course, out of pocket in the sum of $6,500 being the amount he paid in cash to the man who stole the brandy and sold it to him. That, however, is not a plea which commends itself to us. However, we think that bearing in mind that the appellant is a first offender and the fact that he has been in custody for some six weeks serving sentence, and having regard to the fine of $2,500 in default of 12 months' imprisonment which was imposed upon MAN Kar-chiu, the disparity in sentence is somewhat unreasonable. Whatever suspicion there may be, there is no direct evidence that the appellant had instigated the theft in the first instance. There was evidence that the thief had worked previously at the godown so that he had some knowledge as to the practice with regard to the taking out of goods stored in the godown.

7. In all the circumstances of this case we are of the opinion that this appeal should be allowed and the sentence of nine months' imprisonment substituted by a fine of $6,000 or nine months' imprisonment in default of payment. The appellant will have seven days to pay the fine.

Representation:

P. Yu (Stephen Lo & Co.) for Appellant.

Duffy, C.C. for Crown/Respondent.

(Judgment delivered by President)