HKSAR v. KAN TAK MAN

CACC 122/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 122 OF 2016

(ON APPEAL FROM DCCC NO. 229 OF 2016)

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J U D G M E N T

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1. The applicant faced the following charges: Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1), Driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (Charge 2), Using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (Charge 3), and Using documents on a vehicle with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374 (Charge 4).

2. He pleaded guilty before HH Judge Dufton (“the judge”) and, on 28 April 2016, was sentenced to a total of 2 years and 8 months’ imprisonment.  On 10 May 2016, the applicant filed a Notice of application for leave to appeal against his sentence (Form XI).

The facts

3. On 29 January 2016, police officers conducting an anti-crime operation in Yuen Long intercepted a private car driven by the applicant with the vehicle licence and number plate NU 7855 (the “Vehicle”).  Upon checking the engine and chassis number of the Vehicle, the officers confirmed that it had been reported stolen on 3 January 2016.  The correct registration mark of the Vehicle was ST 6140.

4. The applicant was arrested and under caution said that he had purchased the Vehicle from a car thief for HK$6,000 about 10 days earlier and had driven it for fun.  In a subsequent video-recorded interview, the applicant acknowledged that he had earlier lied to the police that the Vehicle was stolen by a car thief: he had himself stolen the Vehicle on 2 January 2016.  He explained that he had used a metal ruler and screwdriver to prize open the driver’s door, and then driven the Vehicle back to Yuen Long where he replaced the ignition, as well as the vehicle registration licence and number plates with those of his own private car (NU 7855).  The applicant admitted that he had no driving licence.

Mitigation

5. In mitigation, the applicant’s solicitor relied upon the authorities of HKSAR v Cheng Chun Ming(unrep., CACC 356/2000, 3 August 2001) and HKSAR v Li Cheung Yin & others (unrep., CACC 313/2011, 21 September 2012).  It was submitted that no accomplice was involved, that the Vehicle was more than 18 years old and had been bought second-hand, and that the applicant was not intending to resell it.  It was further asserted that the applicant was intending to return the Vehicle, which was undamaged, after he had saved enough money to buy one of his own.

6. In respect of Charge 1, a starting point of 24 to 30 months’ imprisonment was said to be appropriate; in respect of Charge 2, “a few months’ imprisonment” was suggested; in respect of Charge 3, a starting point of 6 months’ imprisonment with an 18-month disqualification order was urged upon the court; and for Charge 4, a starting point of 6 months’ imprisonment was suggested.  Finally, it was submitted that the sentences in respect of all charges should run concurrently, since they all formed part of a single course of conduct.

Reasons for sentence

7. In sentencing, the judge accepted that there were no guidelines for offences involving the theft of motor vehicles, but noted the starting point of 3 years’ imprisonment in the authorities submitted by the defence.  He observed that higher starting points had been considered appropriate where the theft was organised, planned and committed in concert with others or involved those in the motor trade.[1] The judge rejected the assertions made in mitigation that the applicant had acted out of momentary greed and that he intended to return the car once he had saved enough money to buy one of his own.  He considered the changing of the number plate and vehicle licence to avoid detection, the fact that the applicant had never passed a driving test and the lack of any third party insurance to be aggravating features of the theft in Charge 1.  Accordingly, he indicated that the appropriate sentence after trial would have been 3 years and 6 months’ imprisonment, which he further increased by 6 months in view of the applicant’s record of persistent offending, resulting in a notional sentence after trial of 4 years’ imprisonment.  Duly discounted by one third for plea, the judge passed a sentence of 2 years and 8 months’ imprisonment on Charge 1.

8. In respect of Charges 2, 3 and 4, starting points of 3 months, 9 months, and 12 months’ imprisonment respectively were adopted.  These were reduced by one-third to 2 months, 6 months and 8 months’ imprisonment respectively for plea.  All of the sentences were ordered to be served concurrently.

9. The applicant was further disqualified for a period of 2½ years by virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

Grounds of appeal against sentence

10. In his submissions attached to his Form XI, the applicant submitted that he only wished to appeal against his sentence on Charge 1, on the basis that the starting point of 4 years’ imprisonment (calculated from the final sentence of 2 years and 8 months’ imprisonment after plea) was too high.  In a letter to the Court filed on 27 July 2016, the applicant further submitted that the sentence was excessive and that the judge had already passed a sentence for having no third party insurance (Charge 3).  Accordingly, the judge should not have used that fact as an aggravating feature to enhance the sentence on Charge 1, which amounted to double-counting.  The applicant has not added to these submissions before me this morning.

11. Although the applicant has indicated that he only wishes to appeal his sentence on Charge 1, I have examined the sentences on all charges in accordance with section 83I(2) of the Criminal Procedure Ordinance, Cap 221.

The respondent’s submissions

12. Ms Audrey Parwani, on behalf of the respondent, submitted that although the judge did not specifically state his starting point in respect of Charge 1, it is evident from his consideration of HKSAR v Cheng Chun Ming (supra), HKSAR v Li Cheung Yin & others (supra) and Attorney General v Ng Kwok Hung (unrep., CAAR 7/1996) that he adopted an initial starting point of 3 years’ imprisonment for the offence.  This, the judge enhanced by 6 months for certain aggravating factors, which included the obvious planning and preparation involved in the offence, given the tools the applicant used to break into the Vehicle, as well as the changing of the ignition, number plate and vehicle licence.  Furthermore, the judge was concerned that the applicant had put other road users at risk by driving without a driving licence or third party insurance.  Ms Parwani submitted that a 6 months’ enhancement could not in the circumstances be said to be manifestly excessive.  The further enhancement of 6 months’ imprisonment for the applicant’s criminal record was also appropriate, given his appalling record of persistent offending.

13. It was also submitted that the judge was entitled to take into account the applicant’s conduct of driving without a valid driving licence (Charge 2) and using a motor vehicle without third party insurance (Charge 3) as themselves aggravating features of the principal offence of theft of the Vehicle (Charge 1), provided he bore in mind the principle of totality and avoided double-counting these factors. By making all sentences concurrent, Ms Parwani said that no issue of double-counting arose.  She cited the judgment of the Court in HKSAR v Ipp Tin Fan (unrep., CACC 9/2016, 27 July 2016), at para 35, by way of analogy.

Consideration

14. During the course of mitigation, the judge made the following comments when discussing the facts in the case of HKSAR v Li Cheung Yin & others (supra):

“COURT: Were they charged with driving without insurance? Was the driver -- was -- driving without insurance which in my view is an aggravating feature. Somebody who steals a car, who can’t even have a -- doesn’t have a valid driving licence, never passed a driving test, therefore, has no insurance, putting everybody, the public, at risk, that in my view is an aggravating feature and is a feature to be taken into consideration either as part of the theft or as additional of -- as an additional feature when you come to consider whether it’s consecutive or concurrent.

MR LAU: Actually, the defendant in that case was charged as an alternative a handling charge and he admit to the theft charge and the...

COURT: Yes. Was there any driving -- what sort of driving charges?

MR LAU: No, that’s -- that’s -- that...

COURT: Was there any case of switching number plates...

MR LAU: No.

COURT: ...which is also an aggravating feature? You might put it as simply trying to avoid detection, but that in itself is very serious.

MR LAU: Yes. That’s not the case in...

COURT: So you don’t have those aggravating features in this case. So, as I say -- as they say, each case is decided on its own facts...

MR LAU: Yes.”[2]

15. Thus, it is clear that the judge viewed the fact that the applicant had driven without a valid driving licence or third party insurance thus placing the public at risk, and that he had switched the number plates to avoid detection, as aggravating features of the theft of the Vehicle, which issues he engaged directly with the applicant’s solicitor during mitigation. Furthermore, it is clear that his approach was that, since these factors went to aggravate the principal offence of theft, the individual sentences for Charges 2, 3 and 4 should be made concurrent with the sentence on Charge 1.

16. I can see no reasonably arguable ground of appeal that the judge has erred in approaching sentence in this way.  As Ms Parwani correctly submits, no issue of double-counting arises as between the aggravating features taken into account on Charge 1 and the sentences for the substantive offences in Charges 2, 3 and 4 which correspond to those aggravating features, since all sentences were ordered to run concurrently.

17. Furthermore, I can see no reasonably arguable ground of appeal in relation to the overall quantum of sentence, or in respect of each individual sentence, in particular the sentence on Charge 1.  Quite apart from the aggravating features discussed, the applicant had a truly appalling record of similar offences.  By the age of 39, the applicant had appeared before the courts on no less than 24 occasions amassing some 61 criminal convictions.  Of the relevant offences in that record, 4 were for taking a conveyance without authority, 4 for driving without a valid driving licence, 7 for using a motor vehicle on a road without third party insurance, 2 for possession of forged driving/vehicle documents, 1 for dangerous driving and 1 for driving whilst disqualified.  There were some 17 further offences of dishonesty.  Moreover, his last appearance before the courts in May 2014 had been in respect of the theft of two motor vehicles and the accompanying offences of driving without a valid driving licence and driving without third party insurance, for which he had been sentenced on his own plea in the District Court to a total of 2 years and 3 months’ imprisonment and released on 3 October 2015; a mere 3 months before he stole the Vehicle in the present case.

18. Plainly, the applicant has learned no lessons from his previous offending which posed a persistent irritant as well as risk to the safety of the public.  In those circumstances, it is difficult to see how the judge could conceivably be criticised for enhancing the starting point by 6 months’ imprisonment for his criminal record of similar offending.  It was entirely appropriate, and consistent with authority, to inject a significant element of both public and personal deterrence into the sentence.

19. In all the circumstances, I can see no reasonably arguable grounds of appeal against sentence in respect of the individual sentences or the overall sentence of 2 years and 8 months’ imprisonment.

20. The application for leave to appeal against sentence is accordingly refused.  The applicant is further advised of his right to renew his application for leave to appeal against sentence to the Court of Appeal, but is also warned of the consequences of so doing, which may include a direction for any loss of time spent in custody pending his appeal, if the Court of Appeal were to come to the view that there was no justification for the renewal of the application.

[1] The judge referred in this regard to HKSAR v Lai Lit Man (unrep., CACC 578/2002); HKSAR v Li Kwok Ho (unrep., CACC 253/2006); HKSAR v Chiu Kwok Wai Caesar [2008] 1 HKLRD 284; and HKSAR v Wong Kam Tat [2002] 2 HKC 677.

[2] Transcript of Mitigation, Appeal Bundle, p 24E-I.