The Queen v. Chong Kin Man

CACC000575/1989

BETWEEN

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Coram: Hon. Sir T.L. Yang, Macdougall, J.A. and Kaplan J.

Date of hearing: 12 June 1990

Date of delivery: 12 June 1990

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JUDGMENT

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Macdougall, J.A.:

1. The applicant pleaded guilty before Judge Cameron in the District Court to two charges of handling stolen goods. These related to his disposal of share certificates that had been stolen by an ex-colleague of his from the clerk of a securities company during the course of a delivery round to various clients.

2. By selling these stolen certificates to two separate brokers - hence the two charges - the applicant obtained $800,000, of which his share was $500,000. He claimed that he used the entire sum to settle his debts. The judge imposed concurrent sentences of 3 years imprisonment on each charge. It is against these sentences that the applicant now applies for leave to appeal.

3. In his reasons for sentence, the judge, after having set out the facts of the case and the submissions made in mitigation of sentence, said this :

"Having regard to the circumstances of this case, the background of the defendant as disclosed in the report obtained and making allowance for his clear record and his plea of guilty, I was of the view that a total sentence of 3 years imprisonment was appropriate."

4. Mr. Chik, who appeared for the applicant in this court but not in the court below, argued three grounds of appeal:

5. A number of cases were cited to us in which the sentences were lower than those imposed on the applicant. The facts and circumstances of those cases, however, were very different from those in the instant case. In R. v. Wan Ho-hung Crim. App. No. 342 of 1988 and R. v. Cheung Ming-lim [1989]1 HKLR 415 this court emphasised that each case depends on its own facts and that decisions on sentencing are no more than examples of how the court had dealt with a particular offender in relation to a particular offence.

6. Decisions on sentencing are riot binding precedents or authoritative in the strict sense. We positively discourage the practice of reading the facts of one case in which there has been a successful appeal and suggesting that that case operates as some sort of precedent that ties tine hands of sentencers in all cases where there are apparent factual similarities. Even in guideline cases a sentencer retains his discretion to depart from the guidelines provided the particular facts of the case justify such a course.

7. We think the following passage at page 168 of the second edition of The Principles of Sentencing by Professor Thomas is of some assistance in determining whether there is any substance in the grounds of appeal advanced by Mr. Chik:

"Sentences for handling stolen property rarely exceed 7 years, and those in the range of 5 to 7 years are usually reserved for handlers who have received the proceeds of a major theft or have been party to an extensive conspiracy to steal and dispose of valuable property."

8. Mr. Chik rightly concedes that this was a major theft. That being so, we find ourselves unable to accept that the sentence imposed by the judge was either manifestly excessive or wrong in principle.

9. It is true that, contrary to what this court has said should be the practice, the judge failed to indicate what discount he gave for the applicant's plea of guilty and previous good character. However we are of the view that whatever discount was given the sentences actually imposed are not such as to warrant our interference. The application is therefore refused.

Representation:

Mr. A.E. Schapel, Sr.C.C. for Crown Prosecutor

Mr. Kenneth C.W. Chik (D.L.A.) for Applicant