HKSAR v. CHEUNG KA ON

CACC 120 /2024, [2024] HKCA 1191

On Appeal From [2024] HKDC 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 120 OF 2024

(ON APPEAL FROM DCCC NO 808 OF 2023)

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J U D G M E N T

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1.  The applicant pleaded guilty to 5 charges before HH Judge Tam (“the judge”) in the District Court as follows:

(i)     Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1);

(ii)    Attempted theft, contrary to section 9 of the Theft Ordinance, and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 2);

(iii)   Driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (Charge 3);

(iv)   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 4);

(v)    Failing to display a valid vehicle licence, contrary to regulation 25(1) and 60(3) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E (Charge 5).

2.  The applicant was sentenced to an overall term of 4 years’ imprisonment and was further disqualified from holding or obtaining a driving licence, in respect of all classes of vehicle, for a period of 3 years from the date of conviction^[1].

3.  The applicant, who is acting in person, applies for leave to appeal against sentence.

Facts admitted by the applicant

4.  On 2 March 2023, at about 04:50 hours, near lamppost FB2357, Public Motor Cycle Parking Space, Tin Yan Road in Tin Shui Wai, New Territories, the applicant was observed sitting on a stationary motorcycle bearing registration number TA4695 (“V1”).  V1 had no vehicle licence displayed but its engine and headlight were on.  The applicant was chatting with a female beside him.  She was seated on a separate motorcycle, also with its engine and headlight on.  They were both wearing helmets and gloves and were looking around as they talked, which aroused the suspicion of a patrolling police constable (“PW1”), who placed them both under observation.

5.  As he did so, the applicant was observed alighting from V1 and walking to another motorcycle, bearing registration number WB5717 (“V2”), parked nearby.  The applicant lifted up the cloth cover of V2 and after examining it for a while, took from his rucksack a screwdriver and began tampering with the area below the hand clutch and ignition switch.

6.  PW1 then intercepted the applicant.  Upon a search of the applicant and his rucksack, PW1 found and seized the following tools:

(i)     6 screwdrivers;

(ii)    3 pairs of pliers;

(iii)   4 drills;

(iv)   3 spanners;

(v)    2 hexagonal keys; and

(vi)   1 pair of gloves.

7.  It was later discovered that the applicant’s driving licence, which was the subject of a disqualification order made on 20 June 2018, was only valid for private cars and light goods vehicles.  The applicant was accordingly arrested.

8.  PW2 and PW3, the owners of V1 and V2 respectively, were located.  PW2 confirmed that she had last parked V1 at Ma Sik Road in Sheung Shui, New Territories at 22:30 hours on 20 January 2023.  She later discovered that V1 was missing at 06:30 hours on 24 January 2023 and reported the matter to the police.  The third party risk insurance policy in respect of V1 did not, of course, provide any coverage for the applicant.

9.  PW2 identified V1 by its chassis number.  She further confirmed the following facts:

(i)     V1 had been repainted from white to black;

(ii)    the windbreak had been changed from colourless to brown;

(iii)   the motorcycle case had been replaced; and

(iv)   two helmets (valued together at $600), which had been kept inside the original motorcycle case, as well as the motor vehicle licence, were missing.

10.  PW3 reported that he had parked V2 at the place where the applicant was arrested at 21:00 hours on 1 March 2023.  He discovered that the ignition switch of V2 had been damaged, which subsequently cost $3,000 to repair. 

11.  Upon his arrest, the applicant admitted under caution that:

(i)     he had stolen V1 in a fruit market at Yau Ma Tei two weeks earlier;

(ii)    the tools were used to dismantle motorcycle(s);

(iii)   he intended to steal V2;

(iv)   he had driven V1 to the scene of arrest; and

(v)    his driving licence had been disqualified the year before.

12.  In two subsequent video-recorded interviews on 3 March 2023, the applicant admitted under caution that:

(i)     he had stolen V1 from a parking space at Lai Cheung Road in Yau Ma Tei;

(ii)    he had driven V1 from Kowloon to Tin Shui Wai at 23:00 hours on 1 March 2023 in order to find his friend for supper;

(iii)   he had tampered with the ignition switch of V2; and

(iv)   he knew his driving licence had been cancelled and he was not the owner of V1.

13.  The applicant admitted that between 20 January and 2 March 2023, in Hong Kong, he stole V1, one motorcycle case, two helmets, and one vehicle licence, belonging to PW2.

Mitigation

14.  The applicant was 51 years of age at the time of sentencing, and a construction worker at the time of his arrest.  He was unmarried and living in private housing in Kowloon^[2]. It was said on his behalf that the motorcycles were not intended for resale but for the applicant’s own use^[3]. The applicant had 65 previous convictions, 45 of which were similar to the present offences (save and except for Charge 5). 

Sentence^[4]

15.  With regard to Charge 1, the judge noted that not only was V1 stolen together with various accessories, but its constituent parts had also been changed or replaced^[5]. As for Charge 2, there had been damage to the ignition switch requiring repairs of $3,000^[6].

16.  The judge took an initial starting point of 3 years’ imprisonment in respect of Charge 1; and 2 years 9 months’ imprisonment in respect of Charge 2^[7]. Given what he described as the applicant’s “awful record” for theft offences, he added 3 months to the initial starting points for both Charges 1 and 2 so as to enhance their deterrent effect^[8].

17.  In relation to Charge 3, the judge considered that the maximum penalty for a second or subsequent conviction was a fine of $10,000 and imprisonment for 6 months.  As this was the applicant’s eighth conviction for the same offence, the judge adopted 6 months’ imprisonment as the starting point^[9].

18.  As for Charge 4, the maximum penalty was a fine of $10,000 and imprisonment for 12 months.  Since it was the applicant’s twelfth conviction for the same offence, the judge adopted 12 months’ imprisonment as the starting point^[10].

19.  As regards Charge 5, the maximum penalty was a fine of $2,000 and imprisonment for 3 months.  Since the applicant had no previous similar convictions, the judge took 30 days’ imprisonment as the starting point^[11].

20.  The judge considered that the applicant had pleaded guilty in good time and there were no other mitigating factors which would have the effect of reducing his sentence further^[12].

21.  As for the disqualification order, the judge was mindful that only Charge 4 called for a mandatory order, unless special reasons existed^[13]. Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance called for a disqualification order for a maximum length of 3 years from the date of conviction.  The judge did not find any special reasons for not ordering a disqualification order^[14].  Accordingly, he ordered that the applicant be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 3 years from the date of conviction^[15].

22.  In terms of totality^[16], the judge considered that Charges 1 and 2 related to entirely separate offences. Accordingly, the associated sentences ought to be served consecutively^[17]. Charge 4 was considered to be a concomitant offence with Charge 3.  Accordingly, the judge ordered these two sentences to run concurrently^[18].

23.  Although Charge 5 was a different offence, which did not flow from the theft of V1 (Charge 1), the judge considered that Charges 3, 4, and 5 should be treated as a separate group of offences from Charges 1 and 2^[19].

24.  Allowing for a full one-third discount, the judge passed the following sentences^[20]:

(i)     On Charge 1: 2 years and 2 months’ imprisonment.

(ii)    On Charge 2: 2 years’ imprisonment.

(iii)   On Charge 3: 4 months’ imprisonment

(iv)   On Charge 4: 8 months’ imprisonment.

(v)    On Charge 5: 20 days’ imprisonment.

25.  The judge ordered the sentences on Charges 3 and 4 to run concurrently as between themselves, making 8 months’ imprisonment in all.  He then ordered 2 months’ imprisonment of these sentences to run consecutively to the sentence on Charge 2, thus making 2 years and 2 months’ imprisonment in respect of Charges 2, 3 and 4.  The sentence on Charge 5 was ordered to run concurrently with the overall sentence on Charges 2, 3, and 4.  The judge then ordered 1 year and 10 months’ imprisonment of the overall term for Charges 2, 3, 4 and 5 to run consecutively to the sentence on Charge 1, with the remainder to run concurrently, thus resulting in a final sentence of 4 years’ imprisonment^[21].

Grounds of appeal against sentence

26.  Essentially four home-made grounds of appeal against sentence have been advanced by the applicant, which may be summarised as follows:

(i)     The judge adopted too high a starting point for the theft or attempted theft of a vehicle.

(ii)    Since Charges 1 and 2 were of the same nature, the judge failed to consider the totality principle and make the sentences on each charge concurrent.

(iii)   The disqualification period of 3 years was manifestly excessive.

(iv)   The judge failed to consider the applicant’s frank admission to, and cooperation with, the police and to give him further discount in sentencing.

Respondent’s submission

Ground 1 (starting point for car theft)

27.  Mr Alan Chan, on behalf of the respondent, submits that the judge was correct in adopting 3 years’ imprisonment as a starting point, which had been set by the Court of Appeal as a sentencing guideline in the case of HKSAR v Yu Chi Chiu[22] (a case involving the theft of a light goods vehicle).  He argues that the theft was not opportunistic, because following the theft of V1 and its accessories, some of its constituent parts had been deliberately changed or replaced.  These matters should be reflected in the sentence on Charge 1.

28.  It was therefore submitted that the judge was correct not to depart from 3 years’ imprisonment as a starting point and, furthermore, to add 3 months to the initial starting points for Charges 1 and 2 so as to increase their deterrent effect on the applicant, given his appalling criminal record; particularly where many of the previous offences were similar to, or the same as, the present offences.

Ground 2 (totality principle)

29.  Mr Chan submits that the judge gave detailed reasons for the totality of sentence in respect of Charges 2, 3, 4 and 5.  Furthermore, there was clearly no nexus between Charges 1 and 2 for sentencing purposes.  Yet, the judge only ordered 1 year and 10 months of the sentence for Charges 2, 3, 4 and 5 to run consecutively to the sentence on Charge 1, which Mr Chan characterised as lenient. 

Ground 3 (disqualification order)

30.  Relying on the authority of Yu Chi Chiu[23], Mr Chan argues that the disqualification order was made partly to protect other road users. Furthermore, since the period of disqualification would expire soon after the applicant’s release, it could not be considered unfair, overbearing or excessive.

Ground 4 (frank admission and cooperation with police)

31.  The respondent contends that the applicant’s apparent remorse did not constitute an exceptional circumstance to warrant a further reduction beyond the one-third discount afforded by the judge.

Discussion

32.  Where a number of sentences are passed on different offences by the same judge on the same occasion, an appellate court looks primarily at the total sentence passed to see if was commensurate with the level of criminality displayed, rather than at the route by which each individual sentence was reached.  That is not to say that the judge’s methodology or computation is not relevant, since it may help to explain why the total sentence is manifestly excessive and/or wrong in principle.  However, it should be remembered that it is the overall sentence passed which is the main concern of an appellate court.

33.  The applicant’s criminality involved the theft of one vehicle and the attempted theft of another, which offences, on his own admission, occurred at least two weeks apart.  Moreover, the theft of V1 (Charge 1) was no opportunistic taking of a vehicle for what is sometimes euphemistically, but inappropriately, referred to as a “joy ride”: the applicant obviously intended to keep it for himself and had effectively transformed the motor cycle, even going to the trouble of repainting it from white to black.  As for the attempted theft of V2 (Charge 2), the applicant caused $3,000 worth of damage in his attempt to steal it.  I do not consider it reasonably arguable that the initial starting points for sentence (before enhancement) for two separate and distinct offences, namely 3 years’ imprisonment, and 2 years’ 9 months’ imprisonment, were manifestly excessive. Nor in principle can there be any complaint about the judge’s enhancement of 3 months’ imprisonment for the applicant’s appalling criminal record.  However, it is to be noted that he enhanced each of the sentences on Charges 1 and 2 by 3 months’ imprisonment for this factor.  I shall return to this matter in due course.

34.  The judge ordered 1 year and 10 months of the overall sentence for Charges 2, 3, 4 and 5 to run consecutively to the sentence on Charge 1.  By making the sentences partly consecutive and partly concurrent, it may be said that the judge clearly did have the overall totality of sentence in mind.

35.  As for the 3 year disqualification period imposed, I see no reasonably arguable ground that it was manifestly excessive and/or wrong in principle.  As Mr Chan has pointed out, the period of disqualification, which was ordered to run from the date of conviction, will expire soon after the applicant’s release, assuming remission for good behaviour.  It is hardly a great hardship for him in such circumstances.

36.  In relation to the claim that the judge did not give sufficient consideration to the applicant’s forthright responses and frank admissions to the police upon arrest, or for his remorse, the judge gave the applicant a full one-third discount for his pleas.  No further discount was warranted and this ground of complaint is not reasonably arguable.

37.  Accordingly, I do not find the applicant’s home-made grounds of appeal reasonably arguable.  However, as I have pointed out, an appellate court will be concerned more with the final result than the way the sentence was reached.  I consider it reasonably arguable that 4 years’ imprisonment on a plea, which represents an overall notional starting point of 6 years’ imprisonment, was manifestly excessive for the applicant’s overall criminality.  I note, by way of example, that the facts in the recent case of HKSAR v Leung King Cheung[24], a decision of the Chinese division of the Court of Appeal, were quite similar to the present case, as was the appellant’s background, yet the sentence passed at first instance was 34 months’ (or 2 years and 10 months’) imprisonment.  However, it should also be noted that that case was only concerned with an appeal against the disqualification order rather than the sentence of imprisonment, and the decision is by no means conclusive.  It merely represents how a different court on similar facts saw that defendant’s criminality.

38.  I said I would return to the matter of the enhancement of the sentences on Charges 1 and 2 for the appellant’s appalling criminal record of similar offences.  Whilst the imposition of a 3 months’ enhancement in such circumstances would not necessarily be objectionable in itself, I note that the judge applied it to the sentences for both Charge 1 and Charge 2 and then made part of the sentence on Charges 2, 3, 4 and 5 (which included the 3-months’ enhancement) consecutive to the sentence on Charge 1 (which also included a separate 3-months’ enhancement).  It is reasonably arguable that the enhancement was thereby doubly applied, and that the consecutive element of the sentence in respect of Charges 2, 3, 4 and 5 was manifestly excessive as a result, leading to an inflated overall notional starting point.

39.  I consider that there are matters fit for the consideration of the Court of Appeal.  Accordingly, I shall grant leave to appeal against sentence, for which I shall grant the applicant an appeal aid certificate in order that he can be legally represented at the appeal.

[1]  Reasons for sentence, at [56]-[57], Appeal Bundle (“AB”), pp 21-22.

[2]  Reasons for sentence, at [22], AB, p 16.

[3]  Reasons for sentence, at [24], AB, p 17.

[4]  Reasons for sentence, at [32]-[57], AB, pp 18-22.

[5]  Reasons for sentence, at [32], AB, p 18.

[6]  Reasons for sentence, at [33], AB, p 18.

[7]  Reasons for sentence, at [34], AB, p 18.

[8]  Reasons for sentence, at [35], AB, pp 18-19.

[9]  Reasons for sentence, at [36], AB, p 19.

[10]  Reasons for sentence, at [37], AB, p 19.

[11]  Reasons for sentence, at [38], AB, p 19.

[12]  Reasons for sentence, at [39], AB, p 19.

[13]  Reasons for sentence, at [40], AB, p 19.

[14]  Reasons for sentence, at [41], AB, p 20.

[15]  Reasons for sentence, at [57], AB, p 22.

[16]  Reasons for sentence, at [47], AB, p 20.

[17]  Reasons for sentence, at [43], AB, p 20.

[18]  Reasons for sentence, at [44], AB, p 20.

[19]  Reasons for sentence, at [46], AB, p 20.

[20]  Reasons for sentence, at [48]-[52], AB, p 21.

[21]  Reasons for sentence, at [53]-[56], AB, p 21.

[22]  HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400.

[23]  Ibid., at [26].

[24]  HKSAR v Leung King Cheung (Unrep., CACC 129/2022, 27 October 2023).