HKSAR v. CHEONG MAN KIT

CACC 394/2017

[2018] HKCA 964

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 394 OF 2017

(ON APPEAL FROM DCCC NO 677 OF 2017)

_______________

_______________

___________________________

REASONS FOR JUDGMENT

___________________________

Hon Zervos JA (giving the Reasons for Judgment of the Court):

1.  The applicant renewed his application for leave to appeal against his sentence which had been previously refused by Macrae VP on 24 July 2018. At the commencement of the hearing we reminded Mr HY Wong, counsel for the applicant, that under section 83I(3) of the Criminal Procedure Ordinance, Cap 221, this Court on an appeal against sentence, may, if it thinks the appellant should be sentenced differently from an offence for which he was dealt with by the court below, pass such sentence or order as it thinks appropriate for the case (whether more or less severe). Upon taking instructions from the applicant, Mr Wong applied for leave to withdraw the renewal application which we refused.

2.  In light of the nature and circumstances of the renewal application, we requested Mr Wong to address us on why we should not invoke the power under section 83W(1) of the Criminal Procedure Ordinance and make a loss of time order against the applicant. 

3.  At the conclusion of submissions from counsel, we refused the renewal application by the applicant for leave to appeal against sentence and dismissed his appeal.  We also exercised our power under section 83W(1) and ordered that 2 months of the time spent by the applicant in custody pending the determination of his appeal shall not be counted towards his sentence.  These are our reasons for doing so.

The offences and sentences

4.  Following his conviction on his own plea before District Court Judge D Yau (the judge) on 30 November 2017, to one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210, (Charge 1), and one charge of burglary, contrary to section 11(1)(b) and (4) of the same Ordinance, (Charge 2), the applicant was sentenced to a total term of imprisonment of 26 months on both charges, of which 3 months were ordered to run concurrently (the balance to run consecutively) to the remaining sentence which had been imposed on the applicant on 14 July 2017 in respect of seven different offences of dishonesty and which were being served by him at the relevant time.

The brief facts

5.  The facts as agreed by the applicant can be briefly stated as follows.  The applicant had become acquainted with the victim since 27 February 2017 when he was working as an employee at a hardware store.  They became good friends and the applicant frequented the victim’s home on various occasions for dinner. 

6.  In the morning of 10 March 2017, the victim picked up the applicant as they had arranged to do some work together later that day.  The applicant had lunch with the victim and his wife before going to do the work.  During the lunch, the applicant stole the key to the victim’s home from his shoulder bag (Charge 1).  Whilst the victim and the applicant were doing the work as arranged, the applicant borrowed the victim’s car, claiming that he had to go home to get changed, as he had agreed to accompany the victim’s wife to mainland China later that day.  He instead burgled the victim’s flat and took RMB8,000, HK$9,000 in cash and two Rolex watches.  He later pawned the watches for $80,000 (Charge 2).

7.  The applicant returned the car to the victim and then met up with the victim’s wife to accompany her to mainland China. However, he told her that he did not have his Home Return Permit and therefore did not accompany her. 

8.  It was later that day when the wife returned from mainland China that the victim and his wife realised that their home had been burgled.  The burglary was reported to the police who recovered CCTV footage that showed the applicant entering the building where the victim and his wife lived.  The applicant was eventually intercepted and arrested and admitted he stole the key of the victim’s home from his shoulder bag and then he went to his home and stole the items in question. 

The applicant’s mitigation

9.  The applicant was 26 years old at the time of the offence.  He had 11 previous court appearances, involving 23 offences, which included one fraud offence, one taking of a conveyance without authority offence, 17 theft offences and three deception offences.  He was, at the time of sentencing, serving 16 months’ imprisonment for seven offences involving theft, fraud and obtaining property by deception, which offences were committed by him between September and November 2016. 

10.  In the course of mitigation, the judge specifically asked the applicant’s solicitor whether the offences before him were committed whilst on bail for the earlier seven offences.  The solicitor confirmed that they were.  As it turned out, this was not correct. 

The reasons for sentence

11.  The judge in his reasons for sentence considered that the crime had been well planned and executed.  In light of the applicant’s past criminal history, the judge called for a psychologist’s report which described the applicant as “an egocentric and impulsive man with Antisocial Personality Disorder”, having “a very low frustration tolerance” and interested in “maximizing his gains and pleasure with the least amount of efforts”.  He noted the psychologist was of the opinion that the applicant’s “long history of stealing and deceptive behaviour was strongly related to his impulsive and anti-social personality”, and that his behaviour had persisted over the years “probably because he is often able to get away from detection and sanctions (at least for a short period), and because he does not perceive the consequences to be very serious.”  He further noted that the psychologist was of the opinion that the applicant’s risk of reoffending was “very high” and “his motivation to change appears to be somewhat superficial at present.”

12.  The judge was of the view that there was nothing to suggest that the applicant committed the offences out of any psychological disorder that compelled him to steal, or that he was not in control when he decided to steal.

13.  The judge adopted a starting point of 3 months’ imprisonment in respect of Charge 1 and 3 years’ imprisonment in respect of Charge 2.  He went on to address the following aggravating factors:

“42. At the same time, as pointed out before, the defendant had 15 convictions, with all but one relating to dishonesty. The defendant is a repeated offender, and I find this an aggravating factor.

43. Another aggravating factor is the fact that the defendant had committed the present offences whilst he was on bail for the offences he had committed between September and November 2016. As mentioned above, the defendant was arrested for those offences in December 2016 and January and February 2017. He was granted bail. Yet, he decided to commit the present offences whilst on bail. This is an aggravating factor.

44. For these two aggravating factors, I will enhance the sentence in charge 1 by 1 month and the sentence in charge 2 by 3 months.”

14.  This resulted in final starting points of 4 months’ imprisonment on Charge 1 and 3 years and 3 months’ imprisonment on Charge 2, which the judge reduced by one third for the applicant’s guilty plea to 2.7 months’ imprisonment on Charge 1 and 26 months’ imprisonment on Charge 2. He considered the totality principle in relation to the present offences and ordered that the two sentences be served concurrently.

15.  The judge also considered the totality principle in relation to the earlier sentences with the sentences of the present case. He noted that the applicant was serving a sentence of 16 months’ imprisonment imposed on him on 14 July 2017 with a discharge date on 28 May 2018.  He further noted that the present offences were committed whilst he was on bail for the earlier offences, and had the two cases been sentenced at the same time, that factor would have been taken into consideration.  He also made the point that the present offences had no connection with the earlier offences.  He said that the applicant had shown a serious disregard for the law when he chose to commit the present offences despite having been arrested and granted bail for the earlier offences, and that the previous punishments did not deter him from committing further offences.  He ordered that 3 months of the 26 months’ imprisonment in the present case be served concurrently with the set of sentences imposed on 14 July 2017, with the balance of the sentence to be served consecutively.

The application for leave to appeal

16.  Mr H Y Wong, counsel for the applicant, put forward two grounds of appeal, which related to the same issue, namely that the judge was misinformed by the applicant’s solicitor that the applicant had committed the present offences whilst on bail for the earlier seven offences, and therefore the enhancements to his sentences on Charges 1 and 2 were erroneous and wrong in principle.

17.  When leave was refused by Macrae VP, he noted that although the judge had been misled, it was nevertheless the fact that he was on bail in respect of another offence, and therefore this made no difference to the resultant sentence.  He explained:

“31. It is right that the judge was misled into thinking that the present case was committed whilst the applicant was on bail for the earlier seven offences. However, as Mr Wong recognises, this ground is somewhat undermined by the fact that, unknown to the judge, the offences were in fact committed whilst on bail in respect of TM 1357/17, from which the applicant had earlier absconded. The point, such as it is, loses much of its lustre.”

18.  He went on to add:

“33. The applicant had a shocking criminal record for someone who was only 26 years of age at the time of sentence, and the judge was right to regard his persistent commission of offences of dishonesty as an aggravating factor. However, the judge said nothing about the applicant’s breach of trust in burgling the house of his friend and the person with whom he was working, using an elaborate charade to deceive both PW1 and his wife. Whilst it might not be a ‘breach of trust’ in the classic sense of that term, it was an egregious betrayal of trust of someone who had befriended the applicant, worked with him and allowed him into his home on social occasions.”

The renewed application for leave to appeal

19.  Mr Wong on behalf of the applicant, renewed the application for leave to appeal against sentence, but recast the basis for doing so, although the grounds of appeal remained the same.  He submitted that the applicant was not on police bail in relation to TM 1357/2017 when he committed the present offences on 10 March 2017.  In support of this submission, a Notice of Motion had been filed, seeking to adduce fresh evidence in the form of an affirmation of the applicant dated 8 November 2018. 

20.  He further submitted that it was wrong for Macrae VP to suggest that the present case involved a breach of trust by the applicant.

(i)   Breach of trust

21.  We will deal with the second point first which complained that the comments of Macrae VP, amounted to finding that there was a breach of trust by the applicant in committing the offences, which was incorrect. 

22.  This submission was totally misconceived for two reasons.  First, the judge did not sentence the applicant on the basis that the offences were aggravated because they involved a breach of trust.  Secondly, Macrae VP’s comments were directed to the conduct of the applicant in betraying a trust and confidence spawned out of friendship in order to perpetrate the offences.  We wholeheartedly endorse the observations of Macrae VP in relation to the deceptive and calculating conduct of the applicant in the present case. We have no hesitation in rejecting this unmeritorious submission.

(ii)   Breach of police bail

23.  The first point was equally unmeritorious and should never have been made. 

24.  The applicant in his affirmation claimed that in relation to the case of TM 1357/2017 he did not breach the police bail.  He claimed he was not on police bail, or at least he thought he was not.  He said he surrendered himself to the police on 1 December 2015.  He said that he was not arrested and that he made confessions under caution on the same day.  He said he was asked to sign various documents, after which he was told he could leave.  He said that he was not asked to pay any money for bail, nor was he told to report to the police station later.  He questioned the documents that had been supplied in relation to the police bail for this case and pointed out that he left Hong Kong on 21 December 2015 and returned on 29 January 2016 without being stopped.

25.  We had submitted to us a form entitled Recognisance Under Section 52 of the Police Force Ordinance, Cap 232, (Pol 40), which was dated 1 December 2015 and signed by the applicant.  It set out that he had been granted bail on his own recognisance of $500 and that he was to report to the Kwai Chung Police Station at 12 pm on 28 December 2015 in respect of a theft case.  The two police officers who handled the applicant’s case at the time had each filed an affirmation with the Court.  They confirmed that the applicant was arrested for a theft case and after inquiries had been made of him he was put on police bail.  Both officers in turn explained the terms and the condition of bail to the applicant that he had to report to the Kwai Chung Police Station at 12 pm on 28 December 2015.  The officer who completed the Pol 40 (KWCDIV P 15002911) took the applicant through the document.  He said he explained the contents to him and confirmed with him that he understood that he had to report to the police station as required.

26.  The facts and circumstances are overwhelming that the applicant was put on police bail on 1 December 2015 which he understood required him to report to the police station on 28 December 2015. He failed to do so and he was subsequently put on the police wanted list on 28 February 2016.  He was eventually rearrested on 29 May 2017. 

27.  The situation therefore is that when the applicant committed the offences in the present case on 10 March 2017, he was an absconder and a wanted person, having breached his bail by failing to report to the police in relation to TM 1357/2017 (Police reference: KWC RN 15036584). What this reflected was that the applicant’s offending displayed a total disregard of the law and that this was amply demonstrated by his persistent offending of crimes involving dishonesty. 

28.  This was a seriously aggravating factor that warranted appropriate enhancement to the starting points of the two offences in question.  The applicant was fortunate that the enhancements were not greater than the ones imposed by the judge in light of his appalling criminal record.

29.  In our judgment, there were two factors that justified substantial enhancement to the applicant’s sentences for the two offences. First, there was the bail violation which meant that he was in breach of police bail and a wanted person for another theft case when he committed the present two offences.  This was a serious aggravating factor which demonstrated persistent offending and a total disregard for the law by the applicant. Secondly, as evidenced by the applicant’s appalling criminal record for offences of dishonesty, he was a serious recidivist whose repeated and persistent offending displayed a contempt for the law.

Conclusion

30.  We took a similar view to that of Macrae VP of the merits of this application.  Accordingly, we refused the applicant leave to appeal against his sentence and dismissed his appeal.  It could not be said that the resulting sentences were either manifestly excessive or wrong in principle.  In fact, we were of the view that the sentences were extremely lenient, given the serious aggravating factors of the applicant having committed the present offences as a bail violator and repeat offender. 

Loss of time

31.  As noted by Macrae VP, an applicant whose application for leave has been refused by a single judge runs the risk, upon a renewal of that application to this Court, that the Court will take a similar view as to the lack of merit of the application, with the consequence that an order is made that part of the time that the applicant has served pending the hearing and his appeal will not count towards his sentence.  See section 83W(1) of the Criminal Procedure Ordinance, Cap 221 and the Practice Note (Crime: Sentence: Loss of Time) [2013] 6 HKC 300.

32.  It is well recognised that the object of the section is to deter unmeritorious applications and not otherwise unduly strain the limited resources of the judiciary and unduly delay dealing with meritorious applications.  See Chau Ching Kay v HKSAR (2002) 5 HKCFAR 540.

33.  We invited Mr Wong to address us on whether loss of time should be ordered.  He simply maintained that the points raised had merit, or at least sought to justify why they should be argued, without addressing or appreciating that in sentencing the applicant afresh a more severe sentence could and should have been imposed.

34.  We decided that in the circumstances of this case we should invoke the power under section 83W(1).  Our reasons for doing so were that the application was totally devoid of merit, that the applicant sought to give an account of his bail violation that was untrue and unsupported by the evidence, that Macrae VP gave detailed written reasons refusing the applicant leave to appeal and explaining the lack of merit in his application, that the application involved a straightforward matter and by Macrae VP’s reasons the applicant would have clearly understood and appreciated the futility of his application, and that the applicant was warned that if he renewed his application he ran the risk of a loss of time order being made against him.

35.  We therefore ordered loss of time of two months.