HKSAR v. CHAN KA CHUNG

CACC 461/2025 , [2026] HKCA 1288

On Appeal From [2025] HKDC 1939

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 461 OF 2025

(ON APPEAL FROM DCCC NO 1447 OF 2024)

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J U D G M E N T

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1.  The applicant seeks leave to appeal against a total sentence of 30 months’ imprisonment imposed on him by HH Judge G Lam (“the judge”) on 11 November 2025 following his conviction upon his own pleas to four charges of theft^[1] (Charges 1, 2, 5 and 6) and one charge of burglary^[2] (Charge 4) on 5 November 2025.

Facts accepted by the applicant^[3]

2.  All offences were committed in Sham Shui Po, Kowloon.  Save in respect of Charge 5, all of the victimized premises were located on the ground floors of the respective buildings concerned.

(Charge 1)

3.  On 10 May 2024, at 10:33 pm, the applicant stole a mobile telephone from the open counter of a dessert shop called “Soufflé_namshan”, while the staff members were busy preparing food.

(Charge 2)

4.  On 28 June 2024, at 11:09 pm, the applicant stole a mobile telephone and an Octopus card reader from the food counter of a restaurant called “Yuan Dumpling”.

(Charge 4)

5.  On 29 June 2024, at 7:35 am, the applicant entered a restaurant called “Tim Ho Wan Dim Sum Specialist” through its half-opened gate.  He reached his arm across the upper counter and stole a mobile telephone from the lower counter.  

(Charge 5)

6.  On 29 June 2024, at 5 pm, the applicant went to a Wellcome Supermarket and took two packs of Yakult, two cartons of milk drinks, one bottle of fruit juice, one bottle of yogurt drink and two packs of tofu dessert from the display racks and placed the groceries in his bag.  He left the supermarket after paying for a banana only.  When he knew the shop manager was following him, he discarded his bag and fled. 

(Charge 6)

7.  On 29 June 2024, at 5:40 pm, the applicant wandered into a shop called “Best Mart 360”.  He took two bottles of fruit tea from the display rack and left the shop without payment.  He was intercepted and arrested by a patrolling police officer outside the shop.

Sentencing of the applicant

8.  At the time of sentence, the applicant was 50 years of age and had 61 previous appearances before the courts, involving 58 offences of theft and 4 of burglary.  He was last sentenced on 6 March 2024 to 4 months’ imprisonment in relation to an offence of theft (or shoplifting).

9.  The judge noted that the applicant was a recidivist and committed the present offences less than two months after his release from prison.  He also acted alone and targeted unattended mobile telephones placed in shops (in the cases of Charges 1, 2 and 4).  The judge considered the targeting of mobile telephones to be an aggravating factor in the commission of the offences^[4].

10.  In respect of Charges 1, 2 and 4, the judge adopted a starting point of 18 months’ imprisonment each, which he enhanced by 6 months to 24 months’ imprisonment.  He gave the applicant a one-third discount for his pleas and reduced each sentence to 16 months’ imprisonment^[5].

11.  In respect of Charges 5 and 6, the judge adopted a starting point of 6 months’ imprisonment each, which he enhanced by another 6 months to 12 months’ imprisonment.  After a one-third discount for his pleas, the sentences became 8 months’ imprisonment each^[6].

12.  The judge considered the principle of totality, finding a global starting point of 45 months’ imprisonment, or an overall sentence of 30 months’ imprisonment after plea, to be appropriate.   To achieve his intention, he ordered 9 months of the sentence on Charge 4 to run consecutively to the concurrent sentences of 16 months’ imprisonment on Charges 1 and 2, thus making 25 months’ imprisonment, and further ordered 5 months of the concurrent sentences on Charges 5 and 6 to run consecutively to the term of 25 months’ imprisonment^[7].

The applicant’s submission

13.  In his Form XI Notice of Application for leave to appeal against sentence, the applicant complains that he has been wrongfully deprived of a one-third discount.  He asserts that his sentence after a proper discount should have been 20 months’ imprisonment.

The respondent’s submission

14.  Ms Cheng, for the respondent, submits that the judge has correctly identified the applicable aggravating factors and the only valid mitigating factor was the applicant’s guilty plea to each charge.  She submits that the overall sentence of 30 months’ imprisonment for all five charges was neither manifestly excessive nor wrong in principle.

Consideration

15.  Although by a notice from the Court dated 27 February 2026, the parties were duly informed that the hearing was fixed for 10 o’clock today, the applicant has failed to turn up at the hearing or to file any further grounds or submissions in support of his appeal; nor could he be contacted by the respondent.  He did not respond to a final call outside court at 10:15 am this morning.  I can only assume that the applicant does not wish to prosecute his appeal or to be present at the hearing; accordingly, bearing in mind that this is a Single Judge application for leave to appeal (which may be subject to a renewal before the full Court of Appeal), and that he has already completed his sentence, I considered it expedient in the interests of justice to proceed with the hearing in his absence.

16.  The applicant has an appalling criminal record and is a serious recidivist, who constantly flouts the law and has done so for some 38 years.  The fact that he has reoffended time and again within a short period of time of, or soon after, being released from prison for similar offences also suggests that he is undeterred by the terms of imprisonment he has received in the past.  There can be no complaint against the judge for substantially enhancing the starting point for each charge.  Indeed, each of the sentences of Charges 2, 4, 5 and 6 could have been further enhanced because the applicant had committed the offence so soon after the previous one. 

17.  It is also relevant to point out that the theft of a mobile telephone will inevitably cause extreme inconvenience as well as result in the loss of vital personal data and information pertaining to its owner victim: see HKSAR v Suen Ping^[8].  That may itself constitute a separate aggravating factor, which would have justified a higher starting point in respect of Charges 1, 2 and 4. 

18.  In my judgment, no criticism can reasonably be levelled against the individual sentences or the overall sentence of 30 months’ imprisonment.  Accordingly, I see no reasonably arguable grounds of appeal against sentence.

19.  The applicant’s sole complaint is that he did not receive a one-third discount from his sentence.  In fact, he did.  His overall sentence was only reduced to 30 months’ imprisonment after applying such one-third discount to the global starting point of 45 months’ imprisonment, which cannot realistically be impugned.  Even assuming that his complaint is that he did not receive a full one-third remission of sentence for good behaviour under the Prison Rules (as distinct from a one-third discount for plea), there is still no substance in it.  Based on his allegation set out in his Form XI, he had been remanded in correctional institutions for some 16 months up to 26 November 2025.  The court records reveal that he was eventually discharged from prison on 14 March 2026 (after he would have received the notice of today’s hearing).  What that means is that he has only served a total sentence of 20 months in prison.

20.  In the absence of any reasonable grounds to appeal, leave to appeal against sentence is refused.

[1] Contrary to section 9 of the Theft Ordinance, Cap 210.

[2] Contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap 210.

[3] Amended Summary of Facts: Appeal Bundle (“AB”), pp 7-9.

[4]  Reasons for Sentence, [9] and [10]: AB, p 14.

[5] Reasons for Sentence, [11] and [13]: AB, pp 14-15.

[6] Reasons for Sentence, [14]: AB, pp 15-16.

[7] Reasons for Sentence, [15]: AB, p 16.

[8] HKSAR v Suen Ping [2024] HKCA 701.  In that case, the appellant, who had a total of 74 previous convictions, was convicted on his own pleas to two charges of theft involving the stealing of two mobile telephones within a period of 2 months.  His total sentence of 33 months’ imprisonment was not disturbed on appeal.