R. v. Yau Yu and Another

CACC000243/1992

IN THE COURT OF APPEAL

1992, No. 243
(Criminal)

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Coram: Fuad, V.-P., Power & Nazareth, JJ.A.

Date of hearing: 10 February 1993

Date of judgment: 10 February 1993

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J U D G M E N T

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Fuad, V.-P. (giving the judgment of the court) :

1. The applicants, Yau Yu and Tsang Kwong Wah, were charged in separate charges with handling stolen goods. The stolen goods were mink skins. They had made confessions to the police. They pleaded guilty before the magistrate and their case was remitted to the High Court for sentence. On 29th May 1992 before Leong J. they confirmed their pleas of guilty and the judge sentenced each of the applicants to imprisonment for 4 years. At that time, Yau Yu was aged 31 and Tsang Kwong Wah, 27. From these sentences they now seek leave to appeal to this court.

2. The offences arose in this way. In the early hours of the morning of 28th November 1991 certain business premises in Kai Shun Road, Kowloon Bay, were broken into by a gang of four or five robbers. The six members of the staff who were on duty that night were threatened with knives, tied up and blind-folded. They were forced to disclose the whereabouts of the key of a storeroom rented by a firm which kept a large quantity of mink skins and leather goods there. When they went to that room the robbers tied up the security guard on duty outside and took away a huge quantity of mink skins valued at about HK$8 million.

3. The police received certain information about the robbery and on 3rd January 1992 they conducted a raid on a flat in Chatham Road. The 1st applicant, Yau Yu, was found there. When the police asked him about the matter, while denying that he had taken part in the robbery, he admitted that he had been asked by another man to buy some stolen mink skins from him. The police seized four carton boxes there as well as 10 mink skins.

4. When Yau Yu had been taken back to the police station for further inquiries, he admitted, under caution, that on 30th November 1991 (which was two days after the robbery) through the introduction of Tsang Kwong Wah, the 2nd applicant, he had first bought 3,000 mink skins for $130 each from a third man, and that later he had bought another 1,082 mink skins from the same man. He told the police that he had sold all but a few of the mink skins in China for $600,000.

5. After the police had heard about the 2nd applicant, Tsang Kwong Wah, they managed to arrest him at Lowu on his way to China on 7th January 1992. Under caution Tsang admitted that he had been approached by a man who had asked him to look for buyers of the mink skins which had been stolen from the premises in question. He further admitted that on 30th November he had introduced the 1st applicant, Yau Yu, to a man from whom Yau Yu had taken delivery of 3,000 mink skins. Tsang said that he had received $40,000 as a commission for the part he played.

6. The applicants had not been in trouble before. They had been in steady employment. They had both been working in the fur trade during various periods of their careers. Yau Yu married in 1989 and had a son who was two years old. His family lives in China where he was born. He came to Hong Kong in about 1962. He has helped the community by working for a time as a voluntary worker at the Caritas Social Centre.

7. Tsang Kwong Wah is also married and lived with his wife in a room in Kowloon. He had no children.

8. In sentencing the applicants, the judge referred to the pleas of guilty, and then said this:

"The circumstances of the theft in which the properties were stolen were indeed serious according to the summary of facts. There was an invasion of the premises by five to six robbers. Watchmen and security guards were threatened at knife-point and were tied up, rooms were burst into and about $8,000,000 worth of furs were stolen. This was a blatant disregard of law and order."

9. The judge observed that the applicants had assisted in disposing of part of a large quantity of very valuable stolen property. He pointed out that although the applicants' share of the proceeds of the crime had not been very great, without people like them burglars would not be encouraged to steal in this way.

10. The judge went on to say:

"In the normal circumstances, without any mitigating factor, I would have imposed a sentence of six years' imprisonment as burglaries of this nature must be discouraged and people assisting in disposing of properties from burglaries must be deterred."

11. The judge then referred to the mitigating factors: their immediate pleas of guilty when they appeared before the first court; their earlier confessions to the police; and the assistance they provided to the police by giving what information they could about the matter. The judge also took into account, of course, that each applicant had a clear record.

12. Mr. Sedgwick, who did not appear in the court below, submitted that the sentences were manifestly excessive, and perhaps the most important part of his submissions was that, in determining the appropriate sentences, the judge had attached too much weight to the circumstances of the robbery and had failed to take into account the fact that the applicants had been ignorant of the fact that the stolen goods had been acquired by robbery. Mr. Sedgwick cited and relied upon a decision of this court: The Queen v. Chan Wing Kwan and Chiang Yen Ching, Criminal Appeal No. 121 of 1985 (unreported), a judgment dated 19th September 1985. There the former Chief Justice, Sir Denys Roberts, giving the judgment of the court, said that an examination of a number of handling cases indicated that the normal bracket of sentences ran between two and four years. That case seems to us to be merely an example of a handling case in which this court decided, taking everything into account, that the sentence imposed on a female handler should be reduced from 4½ years' imprisonment to 2 years' imprisonment. No principle emerges from the judgment.

13. While we consider that it is legitimate for a sentencing court in a case such as this to take into consideration the fact that a large quantity of valuable furs would be likely to be guarded, we think that it is possible that the judge allowed himself to be influenced too greatly by the fact that threats of violence were made at knife-point, and the fact that the men on duty on the premises that night had been tied up, thereby adopting too high a starting point. Mr. Saw, with his customary fairness, accepted that there was no evidence from which the inference could be drawn that the applicants knew the facts surrounding the taking of the furs, and in our judgment it would be wrong to visit them with the consequences of the violence offered and used.

14. In these circumstances, we consider that this court should interfere with the sentences imposed. In our judgment, the appropriate sentence would, in respect of each applicant, have been 3 years' imprisonment. The applications are treated as the hearing of the appeals. We allow the appeals against the sentences to the extent of reducing each sentence from 4 to 3 years' imprisonment.

Representation:

Mr. A.W. Sedgwick, Q.C. & Miss Maggie Poon (Charles Chu & Kenneth Sit) for Applicants

Mr. D.G. Saw (Crown Prosecutor) for the Crown/Respondent