Tang Ho-yeung v. The Queen

CACC001063A/1979

Coram: Leonard, J.A., Addison & Garcia, JJ.

Date of Judgment: 20 May 1980

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JUDGMENT

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Leonard, J.A.:

1. This is an application for leave to appeal out of time against a sentence of three years' imprisonment imposed upon the appellant for two offences of handling stolen goods.

2. The goods were the proceeds of a robbery which took place in November 1978. The question of sentence here is one which, as no doubt you will be aware from the time we have spent in chambers discussing it, a matter which has exercised us greatly.

3. The sentences imposed in England for the offence in question vary enormously. The opening sentence in Thomas on the Principles of Sentencing, 2nd Edition, stated that sentences for handling stolen property rarely exceed seven years and those in the range of five to seven years are usually reserved for handlers who have received the proceeds of a major theft or been party to an extensive conspiracy to steal and dispose of valuable property. Various examples of sentences imposed for handling appear in that volume at pages 168, 169 and 170. They vary from sentences of seven years' imprisonment imposed on what I might call professional fences down to fines or suspended sentences for persons who receive single articles out of a large amount of articles stolen. One thing appears to be perfectly clear and that is that the sentencing court will have regard to the nature of the original offence of theft. Thomas states at page 168 -

"Regular handlers of the proceeds of less ambitious burglaries or thefts are likely to receive sentences between three and five years' imprisonment."

A recent case of handling stolen goods which we have discovered during the adjournment is the case of Winter flood ⁽¹⁾. That was a case which was to some extent flawed by the existence in it of plea bargaining and the report is more remarkable for the comments of the Court of Appeal on the undesirability of plea bargaining than it is on the question of sentence. What happened there was that there was a robbery at a jeweller's shop in Shepherd's Bush - a robbery at gun point. For that robbery the robber received a sentence of four years' imprisonment. The appellant was originally charged with that robbery. He steadfastly maintained his innocence of it and after an interview in the judge's chambers (which was criticized by the Court of Appeal) he pleaded guilty to dishonestly handling part of the proceeds of the robbery. For so doing he got three years. The learned judge there in passing sentence described him as "becoming a very dangerous man and his use of this phrase was what led to the appeal. The Court of Appeal however stated that they did not think that if the sentence in question was taken in its context it indicated that the judge thought that he was a party to the robbery saying -

"We do not think that if that sentence is taken in its context it can bear that construction. What we think the learned judge probably had in mind was that this young man was facilitating the disposal of a very large quantity of jewellery which had been stolen at gun-point in Shepherd's Bush in the way we have described. As a sentence on this man for handling this type of goods obtained in these circumstances we do not think the sentence of three years is in any way excessive and the appeal will therefore be dismissed."

It is quite clear from the general terms of the report that the Court of Appeal considered itself as fully entitled to have regard to the nature of the original theft and this entitlement is in turn remarked on in Thomas. At page 169 the learned author observes -

"The level of sentence appropriate to the casual or opportunist handler who receives property on an isolated occasion will vary with the value and quantity of the property and the circumstances of the theft;"

The circumstances of the theft here were indeed serious. There was invasion of a house at knife-point by at least three robbers. The occupants were tied up and property worth over $300,000 was stolen. That offence was the kind of offence for which a sentence of six years is generally imposed. The sentence in Winter flood⁽¹⁾ for the robbery there carried out was one of only four years' imprisonment.

4. In our case the appellant was perhaps not so closely connected with the original robbery as was Winter flood. ⁽¹⁾ I say this because the only evidence as to the proximity of the receiving to the original robbery was that a period of approximately three months passed between the date of the robbery and the date of disposal by the appellant. The first stolen article was pawned on the 17th of February. The remaining pawnings took place in March. The value of the property pawned was in the region of $10,000 and the amount received by the appellant from the pawn-brokers was $6,300.

5. Speaking for myself I have not got much sympathy for the pawn-brokers. It is to be noted that three pawnings to the same broker took place and in each case of pawning to him a different address was given by the appellant. I do not know if any application has yet been made or is to be considered by the pawn-brokers concerned. If one is, while I would not wish to prejudge it, it appears possible that the judge or magistrate before whom the application is made will be as unsympathetic as I.

6. A matter however which increases the gravamen of the activity of the appellant is the fact that in April 1979 he placed a further quantity of stolen goods in a safe deposit box. He was not then acting naively in relation to the goods he had handled. He was taking his time about their disposal.

7. Taking into account the seriousness of the original robbery and the extent to which the appellant associated himself with it by the gradual disposal of the stolen goods we cannot say that the sentence was manifestly excessive or wrong in principle. The application for leave to appeal against sentence out of time is dismissed.

Representation:

Mr. Adrian Huggins (Hampton, Winter & Glynn) for Appellant.

Miss Crabtree, Crwon Counsel, for Crown/Respondent.

(1) (1979) C.A.R. 291.