R. v. Lau Shiu Hau

CACC000653/1996

IN THE COURT OF APPEAL

1996, No. 653
(Criminal)

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Coram: Hon. Mortimer and Ching, JJ.A. in Court

Date of hearing: 27 February 1997

Date of judgment: 27 February 1997

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J U D G M E N T

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Ching, J.A. (delivering the judgment of the Court) :

1. The applicant was convicted after trial on one charge of handling stolen goods. He was sentenced to imprisonment for a term of two years and nine months. He now seeks leave to appeal against that sentence.

2. One night after midnight or in the early hours of the morning, a group of men, including the applicant, were arrested at what is called a sawdust mill in a remote area of the New Territories near the border between this Territory and the People's Republic of China. Some of them were securing two motor cars in a container into which they had just been driven. They had been stolen. The applicant was arrested outside the container. Each of the men was arrested after they attempted to escape and after a struggle. The applicant gave cautioned statements which were allowed into evidence. They contained full confessions to the charge and revealed that he was financially to benefit from his participation, that he had driven one of the cars into the container and that thereafter he had acted as the look-out. Notwithstanding this he pleaded not guilty at the trial and gave evidence which was rejected.

3. The Judge below refused to sentence on an enhanced basis under the provisions of the Organised and Serious Crimes Ordinance. He used a starting point of three years but having regard to the applicant's clear record reduced it to one of two years and nine months. One of the applicant's grounds in his written notice asserts that the Judge did not take his clear record into account but it is sufficient to say that the Judge did. Another matter put before us in his written grounds and expanded upon orally before us today is his personal circumstances. The effect of his arrest is no doubt very sad in relation to his family and especially his mother who has had to go out to work for a meagre income which she does without complaint. Orally before us today he has said that he now knows what it is like to be in gaol, that he is genuinely repentant and that he knows that he should not commit another offence. He expresses his gratitude to the prison staff for the assistance they have given him and it is apparent that the stay in prison so far, though short, already appears to have been beneficial. His final written ground is that the sentence was too heavy compared with those handed down for other offences of the same nature.

4. We have taken all that he has said into account. On the other hand the Judge below found, and we agree with him, that although thefts, and therefore handling of, stolen cars have decreased in recent years these were still very serious offences. The sentence which was imposed on the applicant has not been shown to be either manifestly excessive or wrong in principle and his application for leave to appeal against sentence must be dismissed.

Representation:

Applicant in person

Mr. P.K. Madigan, S.C.C. (Crown Prosecutor) for Crown/Respondent