Attorney General v. Chan Sik Ming

CAAR000008/1996

IN THE COURT OF APPEAL OF HONG KONG

CRIMINAL JURISDICTION

APPLICATION FOR REVIEW NO.8 OF 1996

(On Review From The District Court Case No.DCC100049 of 1995)

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

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

Coram : Hon Nazareth, V.-P., Ching, J.A. and Stuart-Moore, J. in Court

Date of Hearing : 18 July 1996

Date of Judgment : 18 July 1996

Date of Handing Down Reasons : 21 August 1996

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

J U D G M E N T

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

Nazareth, V.-P.:

1. This is an application for review of sentence made by the Attorney General under s.81A of the Criminal Procedure Ordinance (Cap.221).

2. Having heard counsel, to save the applicant further anxiety in the particular circumstances we immediately announced our decision and now give our reasons.

3. The respondent Chan Sik Ming pleaded guilty before HH Judge Daniell in the District Court to a charge of handling stolen goods contrary to s.24(1) and (2) of the Theft Ordinance, Cap.21. On 29th March 1996, he was sentenced to imprisonment for two years, suspended for two years.

4. The facts are as follows. At 8:00 am on 5th November 1995, the police were advised that a red ISUZU 24 ton goods vehicle, Registration No.GC8843, the property of Invincible International Ltd, was missing.

5. About 12 hours later, at 8:22 pm that same evening, the Police at Lok Ma Chau control point stopped a green ISUZU goods vehicle, Registration No.GM406. It was being driven by the respondent. The vehicle now bore the words "Tai Fook Transportation Company". The manufacturer's name on the disc was MITSUBISHI. The respondent made no reply when asked how he came to be driving an ISUZU goods vehicle when the licence disc showed the manufacturers to be MITSUBISHI. Under caution, he said he did not know it. He said he was asked by a man to drive the vehicle to China for $30,000. Subsequent checks established that the engine number and chassis number of the vehicle stopped were those of the missing ISUZU.

6. When further questioned, the respondent said that he did not know where the man had stolen the vehicle. He gave the Registration No.GM406 of his own goods vehicle to the man to make registration plates. He was to drive the goods vehicle given by the man to China while his own vehicle GM406 would remain parked at West Coast Carpark.

7. The deputy judge provided two sets of reasons for sentence, the first was as follows :

" I have considered this matter very carefully, and it is my view that the offence is a serious one, and one which would normally attract a substantial sentence of imprisonment.

But having heard Mr Mitchell-Heggs, I am satisfied that it is unlikely that the defendant took part in the planning or preparation of this crime. I also accept the submission that, in this case, it is more likely than not that he believed that what he was doing was criminal -- but did not know.

He has wisely chosen to plead guilty and by doing so, has saved a considerable amount of public money and time.

In these circumstances, it is my view that he shall not serve a sentence of imprisonment. He is sentenced to a term of 2 years' imprisonment but that sentence will be suspended over a period of two years."

8. The second version appears to be in identical terms save that the deputy judge substituted the following for the second sentence of his second paragraph :

" ..... I also accept the submission that, in this case, it is more likely than not that he believed that what he was doing was a crime but he did not know that this was a crime; but he believed that it was."

9. This Court has already said that the practice of recording two reasons for verdict, one at the time the verdict was announced and the other subsequently, was not to be encouraged (R. v. Hui Lap Keung [1989]1 HKLR 261, 264A. However, nothing turns on the difference between the two versions.

10. Reverting to the judge's reasons, he was plainly right in stating that the offence was a serious one which normally would attract a substantial sentence of imprisonment. But he was not right in immediately thereafter proceeding to reach the conclusion that in effect any custodial sentence should be suspended. The proper approach is stated thus in the Second Edition of Professor Thomas's Principles of Sentencing at p.240 :

"The Court has stated many times that a sentencer contemplating a suspended sentence should first consider whether the offence would justify a sentence of imprisonment in the absence of a power to suspend. If the offence would justify an immediate sentence of imprisonment, the proper length of the sentence should be determined, having regard to the gravity of the offence and the mitigation. If the length of the sentence so determined is not more than two years, the sentencer may consider suspension."

(See also para.9.23 of Stockdale and Devlin on Sentencing.)

11. Turning then to the appropriate period of imprisonment, the judge failed altogether to identify a starting point for sentence. In R. v. Patel (1984)6 Cr App R(S) 191, 192, Lord Lane CJ said this :

"It is needless to say that the proper penalties for cases of handling will vary enormously according to the circumstances. At the top end of the scale where the handler provides an outlet for the proceeds of very substantial thefts or robberies where the advantages to the thief of having such an outlet are very great and where accordingly the receiver or handler is indirectly encouraging the theft to take place..."

That is the sort of situation we have here. True, the profits to the respondents may not have been very great, but $30,000 was by no means insubstantial.

12. In Chiu Ko Wai [1992]2 HKCLR 219, 220 this Court, differently constituted, said :

"It must be made clear that those who participate in the theft of, or the handling of cars ought to receive deterrent sentences. It is becoming very prevalent in Hong Kong for cars to be stolen and smuggled into China. It is right, therefore, that, in order to protect the public, substantial prison sentences should be passed on those who steal or assist in the disposal of cars..."

The Court imposed a custodial sentence of 2½ years, reducing the sentence of three years originally imposed, which it thought on the high side.

13. In Law Yiu Pan Cr App 429/94 (unreported), the 20 year old applicant pleaded guilty to handling ten stolen cars being smuggled to China. He was sentenced to four years' imprisonment. This Court declined to intervene.

14. We think that in all the circumstances of the present case, a starting point of at least five years would have been appropriate. Given that the respondent was caught red-handed, the judge would have been justified in awarding a discount somewhat less than the usual one-third for his plea of guilty. Be that as it may, a full discount of one-third would have reduced the starting point to a term of three years and four months. We take that then as the appropriate period of imprisonment, and turn to the question whether such a sentence should have been suspended.

15. As Professor Thomas points out at p.244 of the 2nd Ed of his Principles of Sentencing :

"The suspended sentence does not fit easily into the general body of sentencing principles..."

And at p.245 that :

"In practice the suspended sentence has become associated with certain categories of cases, although it is not limited to them."

Concluding at p.247 :

"Apart from these categories of cases, the suspended sentence may be used where unusual circumstances justify a departure from the normal sentence."

16. In R. v. Lam Lai Chun Cr App No.343/1988, this Court noted without comment that the judge below :

"... had made it abundantly clear that he did not regard the applicant as being such an exceptional case as would warrant a suspended sentence. However, he considered the co-defendant to be such an exceptional case qualifying for a suspended sentence by reason of 'the exceptional matters that I had raised, in particular restitution, together with the probation officer's recommendation and attempt to try and make something of her life by seeking employment during the bail out period."

We content ourselves with merely observing that once a Court has reached the point of actually assessing the term of imprisonment to be imposed, then it must follow that there should be some good reason for suspending its immediate operation which would ordinarily follow.

17. Turning to the circumstances of the present case, it is difficult to see anything in the nature of good reason in it being "more likely than not that [the respondent] believed what he was doing was a crime but he did not know that this was a crime; but believed it was". Mr Mitchell-Heggs explained to this Court that his contention was that a lesser degree of culpability was involved in belief as opposed to knowledge. To the extent that we are able to understand that submission, we do not accept it. Nor does the plea of guilty weigh in favour of the sentence of imprisonment being suspended.

18. In the result in our view the sentence was manifestly inadequate and cannot be allowed to stand.

19. It remains to consider whether in the present situation, following the Attorney's successful application for review, the sentence of three years and four months that in our view would ordinarily have been appropriate ought to be reduced, as contended by Mr Mitchell-Heggs, being imposed upon the Attorney's application for review. In Attorney General v. Wong Kwok Wai [1991]2 HKLR 384 at 389H, Silke, V.-P. addressing the discretion of this Court to grant a discount from the sentence it might think the trial court should properly have imposed said this :

"In exercising the discretion which we consider this court to have we think that there should be borne in mind that, when a person is serving a prison sentence, this court should, generally, impose the sentence it thinks the trial court should have imposed and without a discount : A discount can, however, be properly considered in cases where the respondent is very close to the end of his sentence or where the sentence imposed by this Court is greatly in excess of the original sentence."

20. Plainly, where in lieu of a suspended sentence, this Court is imposing an immediate custodial sentence, it must be regarded as greatly in excess of the original sentence. We accept from what Mr Mitchell-Heggs has told us that there is some degree of unusual hardship in the respondent being now thrust into prison. Having regard to all the circumstances, we think that in the particular circumstances, the appropriate sentence should be imprisonment for two years which should commence forthwith. We accordingly set aside the order below and ordered accordingly.

Representation:

Mr I. Grenville Cross, QC and Miss A. Chan (Crown Prosecutor) for the Applicant

Mr Anthony B. Mitchell-Heggs (M/s William Au & Co.) for the Respondent