R. v. Lie Thian Sien and Another

CACC000485/1991

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Coram: Hon. Fuad, V.P., Penlington & Nazareth, JJ.A.

Date of hearing: 12 March 1992

Date of delivery of judgment: 12 March 1992

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J U D G M E N T

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Nazareth, J.A. (giving the judgment of the Court):

1. The applicants, Lie Thian Sien and Ip Chi Kwong, pleaded guilty before His Honour Judge Tung in the District Court and were convicted and sentenced on 23rd October 1991.

2. Lie was convicted of handling stolen goods contrary to s. 24 (1) and (2) of the Theft Ordinance, Cap. 210, the particulars of offence being that on 20th February 1991 at the Gammon construction site near Fat Kee Stevedores Container Terminal, Tsing Yi Road, New Territories he dishonestly handled a stolen Mercedes Benz car knowing it to be stolen. He was sentenced to 2 1/4 years imprisonment.

3. Ip was convicted of taking a conveyance without authority contrary to s. 14(1) of Theft Ordinance, the particulars being that at the same time and place without the consent or other authority of the owner he took a goods vehicle.

4. The facts are that the authorities laid an ambush at the site and on the date mentioned. About 9 p.m. a crane truck i.e. the goods vehicle being the conveyance, the subject of the charge, was brought to the site where it was met by two males and led to a sloping ramp near a pier, where it was parked. About 9:30 p.m. two Mercedes Benz vehicles entered the site and were driven to the pier. Two speedboats had been cruising near the pier. The crane on the truck was seen to be moved and members of the ambush party were instructed to take action. Unfortunately the culprits were alerted and a number of them attempted to escape in the two vehicles, which collided in the process. One of them was then abandoned at the site and the culprits escaped in the other. Later, about 11:20 p.m. that same evening when the site was searched, Lie was found in a container. He was soaking wet. The vehicle in which the culprits escaped was found in a car park. One of the two vehicles had been stolen on 17th February and the other on 20th February. The truck crane was traced to the company which owned it and that led to Ip, who was employed by the company. Ip first told the police that the truck had been stolen. On further enquiries, he was arrested on 23rd February and made witness and cautioned statements giving a detailed account of his involvement in the matter. He and Lie were each to receive $7,000 for lifting each vehicle onto a boat, i.e. $14,000 for the two vehicles, to be split equally.0

5. In their applications for leave to appeal both have listed several grounds. For Lie Mr. Darwyne relies first and primarily upon the ground that the learned judge may have punished the accused for contemplating pleading not guilty. He points to the case of R. v. Lui Koon Man et al, Mag. Crim. App. 1751/90, which is an unreported decision of Mr. Justice Sears. It is not necessary in our view to refer to the details of that case in which there was an enormous disparity between those who pleaded guilty and those who did not. The circumstances here are entirely different and there is no indication from his reasons that the learned trial judge may have acted similarly. He has given his reasons at length for differentiating between Lie and Ip and his reasons do not in any way suggest that he might have imposed a heavier sentence upon Lie for not pleading guilty.

6. Mr. Darwyne's second ground was that Lie's plea of guilty consequently did not receive the credit it deserved. It is clear that Lie in fact did receive a credit of about 18%. It is true that in the case of R. v. Kwok Chi Kwan and Another, Unreported, Crim. App. No. 25/86, upon which Mr. Darwyne relies, Silke J.A. (as he then was) did say that pleas of guilty are to be encouraged, the degree to which this has to be done must depend on the particular circumstances. The learned trial judge has given his reasons for the different discount that he applied to Ip. As he says Ip pleaded and admitted his guilt much earlier and it is against the entire background which he reviewed, that Lie's sentence must be considered.

7. Third Mr. Darwyne submitted that the judge ought not to have imposed a deterrent sentence since this was the first offence that Lie committed. He relies upon a passage in the unreported case of Garthwaite v. R., Cr. App. 566/77, in which Briggs C.J. stated that

"it is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence".

What is said there is simply that that is undesirable. It does not mean that in serious offences of the nature before us a deterrent sentence should not be passed. The matter must depend upon whether such a sentence is appropriate to the circumstances. In offences of this sort the deterrent aspect of sentencing must be a major factor.

8. Fourth Mr. Darwyne submits that the judge erred in not properly apportioning the blame between the two accused pointing to the disparity between the sentences on the two and the different circumstances between them as to age and so on. The learned judge has specified the circumstances that differentiate the two. In our judgment the circumstances amply justify the apportionment of blame reflected in different sentences imposed.

9. Finally Mr. Darwyne submits that the sentences are manifestly excessive in the particular circumstances. He makes reference to several other cases in which lower sentences have been imposed. It is well established that decisions on sentences in other cases are not binding precedents. In this case, having regard to the seriousness of the particular offence, it seems to us that the sentence is not unduly excessive. The handling in this particular case is very closely related to the main offence of the vehicles being stolen. As Mr. Saw has pointed out, the arranging of the crane truck would probably have presented a task far more complicated, difficult and perhaps essential to the success of entire transaction than the mere driving away of the particular vehicles.

10. Turning to the appeal of Ip, Mr. Laskey likewise relies upon five grounds. First he submits that the trial judge failed to consider the possibility of suspending any sentence of imprisonment. It is true that the judge did not mention suspension. That is no reason for supposing that he did not consider in his own mind, and if he rejected it out of hand that is not at all surprising. There is no merit in this ground whatever.

11. Secondly, he submits that the judge set too high a starting figure when he started with 2 1/2 years, having regard to the particular circumstances, namely the limited involvement, the moderate prospective reward and previous good character. Having regard in particular to the seriousness of the offence and the important part played by Ip, we do not think that the starting figure can be said to be too high.

12. Third, Mr. Laskey submits that insufficient distinction was made in the starting figures between Ip and Lie. This, of course, is exactly the converse of what Mr. Darwyne argues. It seems to us on the evidence and circumstances that the distinction cannot be said to have been insufficient in the sense that the starting figure in respect of Ip should have been significantly lower.

13. Fourth, Mr. Laskey urges that the judge made unfair reference to the unforeseen knowledge in the mind of the 2nd defendant as involving valuable motor vehicles. We say at once that we can see no merit in this submission.

14. Finally Mr. Laskey submits that the judge unfairly concluded that a deterrent sentence was necessary in the circumstances. In this regard he submitted there was no evidence of prevalence. It is true that the record contains no evidence of prevalence, but the particular offence, perhaps because of its nature, was notoriously prevalent. It cannot be accepted that the learned judge unfairly concluded that a deterrent sentence was necessary.

15. For the reasons given we see no merit in the grounds that either applicant proposes to advance. For those reasons we refuse both applications for leave to appeal.

Representation:

Mr. D.G. Saw (The Crown) for Respondent

Mr. Michael T. Darwyne (M/s. Leung Kin & Co.) for 1st Appellant

Mr. Edward Laskey (M/s. Hampton Winter & Glynn) for 2nd Appellant