HKSAR v. BIKRAMJIT SINGH AND ANOTHER

CACC 109/2019

[2019] HKCA 1206

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 109 OF 2019

(ON APPEAL FROM DCCC NO 630 OF 2018)

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BETWEEN

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J U D G M E N T

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Introduction

1.  On 19 March 2019, the applicants pleaded guilty to the following charges of theft before Deputy District Judge K H Cheang (the judge):

- for the 1^st Applicant: charges 2-7, 9-11, 14 and 15;

- for the 2^nd Applicant: charges 2-15.

(Charge 1 was a charge of theft of a credit card laid against the 2nd Applicant which was ordered to be left in the court file.)

2.  On 7 May 2019, the 1^st Applicant applied for an extension of time to give notice of application for leave to appeal against sentence.  On 4 April 2019, the 2^nd Applicant filed a Notice of Application for leave to appeal against sentence. 

3.  The facts admitted by both applicants revealed that they had used a credit card belonging to another person for making multiple purchases within a span of 12 hours on 25 February 2018.  The goods obtained included iPhones, supermarket stuff and wine.  Other than charges 8, 12 and 13 which were committed by the 2^nd Applicant alone, the two applicants admitted that they had jointly committed the other offences.  The total value of the goods obtained in relation to the joint charges was about HK$88,000 whereas the 2^nd Applicant obtained goods valued at about HK$24,000 for charges 8, 12 and 13.  In respect of the credit card, it was a genuine card with a credit limit of HK$1 million found to have been lost after the card owner had been notified of the above purchases. 

The Applicants’ Background and the Judge’s Reasons for Sentence

4.  Both applicants were Form 8 holders at the time of the offences.  The 1^st Applicant has got one previous conviction of theft in December 2017 in respect of which he was fined HK$1,000.  The 2^nd Applicant has got two previous convictions, one of breach of condition of stay and the other possession of dangerous drugs for which he was respectively sentenced to a suspended term of 4 weeks’ imprisonment in 2013 and a fine of HK$6,000 in 2017. 

5.  In sentencing, after considering the relevant authorities, the judge adopted a starting point of 3 years for each of the charges and reduced it to 2 years to take account of the guilty pleas.  As the amounts involved and the number of charges were not identical, for the 1^st Applicant, the judge ordered that 1 month’s imprisonment in each of charges 2-4 was to run consecutively to the 2-year term for charge 15, making a total of 2 years and 3 months.  For the 2^nd Applicant, he ordered that 1 month’s imprisonment in each of charges 2 to 5 was to run consecutively to the 2-year term for charge 15, making a total of 2 years and 4 months’ imprisonment. 

Grounds of Appeal and the 1^st Applicant’s Grounds for Making the Application Out of Time

6.  For the 1^st Applicant, he explained that he did not make his application within time because he had to find some cases to support his application.  In respect of the grounds of appeal, he claimed that it was his first offence and that he was only recruited by the 2^nd Applicant to help carrying the goods. 

7.  For the 2^nd Applicant, he merely stated that his wife was in poor health and was waiting for his company.  He also mentioned about having a young baby. 

Consideration

8.  In my view, no criticism could be mounted against the judge for adopting a starting point of 3 years for each charge which was a starting point generally in line with the relevant authorities.  In fact, the starting point might be regarded as a lenient one given that the potential loss was large in the present case as the credit card had a limit of HK$1 million. 

9.  The final terms of 2 years and 3 months for the 1^st Applicant and 2 years and 4 months for the 2^nd Applicant were also appropriate since they had respectively admitted committing 11 and 14 charges involving HK$88,000 and HK$113,000.  In this connection, it should be noted that although both applicants were Form 8 holders, the judge did not enhance the sentence which enhancement, if ordered, would have been justified given the previous offending of both applicants while awaiting the processing of their claims. 

10.  In short, I do not consider the reason put forth by the 1^st Applicant for the delay to be a good reason.  Insofar as his grounds of appeal are concerned, I do not consider them to be reasonably arguable. 

11.  In respect of the 2nd Applicant, again, the grounds advanced are not, in my view, reasonably arguable. 

Conclusion

12.  For the above reasons, I refuse the 1^st Applicant’s application made out of time for leave to appeal against sentence.  I also refuse the 2^nd Applicant’s application for leave to appeal against sentence. 

13.  I now remind both applicants of their right to renew the applications before the Court of Appeal but I warn them that should they do so, and should the Court of Appeal find no merit for the renewal of the applications, the Court of Appeal might order loss of time which the applicants have spent in custody pending their appeals.