The Queen v. Chan Chi Ming

CACC000388/1986

BETWEEN

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Coram: Yang, Silke & Kempster, JJ.A.

Date of hearing: 11th November, 1986.

Date of delivery of judgment: 11th November, 1986.

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JUDGMENT

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Yang, J.A.:

1. The applicant was convicted by Deputy Judge Shum at Tsuen Wan District Court of a charge of handling stolen property and sentenced to imprisonment for two years. He now seeks leave to appeal against that sentence.

2. The subject matter of the charge was a goods vehicle. It was missing on the 24th May 1984. On the 8th December 1984 the owner found it on the road, and identified it as his missing vehicle by the dents and- scratches on the front. It transpired that the applicant's cousin had purchased the vehicle from the applicant:

3. In giving his reasons for sentence the trial judge said:

"         On the question of sentence this court would like to say that since the defendant has been convicted attempted taking conveyance without authority and going equipped for stealing and sentenced for 3 months each and suspended for 18 months' this court finds it inappropriate not to pass an immediate custodial sentence for 2 years and that the defendant to return $7,500.00 i.e. bail money to the victim Lee (Li) Kee."

4. Counsel for the applicant contends that here the judge was sentencing the applicant for his past record, thereby failing to accurately determine the proper level of sentence in the light of the facts of the case. But he concedes that the passage is susceptible of another interpretation, that the judge was saying no more than that, in view of the applicant's previous conviction, he was unable to give him the credit normally given to a person with a clear record. This is how we would read the judge's comments.

5. Another ground of appeal relates to the applicant's personal circumstances : that he had not served a term of imprisonment before, that he was 31 and had two young children to take care of, that he was also responsible for providing for his elderly and infirm parents, that in spite of other siblings, he was the only one who could provide for his parents because he was the sole proprietor of a garage business, and that he had recompensed the owner of the missing vehicle.

6. The judge, apart from the passage cited above, did not discuss how he arrived at a determination of the sentence, and neither counsel was able to assist us as to the proper "tariff" for an offence of this nature. However taking into consideration all the circumstances of the case, we are of the view that the proper sentence should be one of 18 months.

7. Accordingly we allow the application, treat the application on the hearing of the appeal proper, and reduce the sentence from two years to 18 months.

Representation:

Alexander King (D.L.A.) for Applicant

Lugar Mawson for Crown/Respondent