HKSAR v. CHIN CHIN FAI

CACC 70/2021

[2022] HKCA 83

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 70 OF 2021

(ON APPEAL FROM DCCC NO 129 OF 2020)

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REASONS FOR JUDGMENT

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1.  The applicant (D1) pleaded guilty to 7 charges (Charges 1, 2, 3, 6, 7, 11 and 12), before HH Judge Tam (“the judge”) in the District Court on a Charge Sheet consisting of 12 offences. Charges 8 to 10 were ordered to be left on court file and not to be proceeded with without the leave of the court.

2.  On 23 March 2021, the applicant was sentenced by the judge to a total sentence of 46 months’ imprisonment, and was disqualified from holding or obtaining a driving license in respect of all classes of vehicle for a period of 12 months until he has again passed the test of competence prescribed under the Road Traffic Ordinance, Cap. 374. The applicant now applies for leave to appeal against the sentences.

3.  At the hearing of the application, I refused to grant leave but said I would hand down my reasons for doing so at a later date. This I now do.

Particulars of the Charges

4.  On 27 November 2019, the applicant stole various properties valued at HK$1,430 from private car “RZ3247” (Charge 1).

5.  Charge 2 is a charge of “Attempted Theft”[1] alleging that on the same date and at the same place as Charge 1, the applicant attempted to steal RZ3247 by prizing off the driver door lock cylinder and ignition lock cylinder (Charge 2). The total repair cost was HK$1,000.

6.  Shortly after, he stole a light goods vehicle belonging to “BUDA SURVEYING LIMITED” (“the LGV”) left unattended whilst the surveying workers went to work at the nearby manholes (Charge 3). The LGV was subsequently located at a meter parking area at Shing Wan Road, Tai Wai. The applicant was found sitting at the driver seat and D2 at the left rear passenger seat. Tapes and sprays had been applied on various parts of the LGV in order to hide the company name, logo and contacts, the removal cost of which was about HK$3,000. Further, the front and rear number plates of the LGV had been damaged and replaced by the number plates of the two light goods vehicle parked in the vicinity.

7.  In the cautioned video interview, the applicant admitted to have stolen and driven the LGV, and at that time he was under an 18 months’ disqualification order made by a District Court judge (Charge 6 “Driving while disqualified”[2]), thus he was using a motor vehicle without third party insurance[3] (Charge 7).

8.  Further, at the time of his arrest, the applicant was found to be in possession of 0.49 gramme of a tablet fragment containing sildenafil, one capsule containing sildenafil and one tablet containing tadalafil (Charge 11: “Possession of Part I Poisons”[4] and Charge 12: “Possession of apparatus fit and intended for the inhalation of a dangerous drug” in respect of an ICE flask[5]).

The judge’s Reasons for Sentence

9.  The judge, in recognition of the applicant’s timely plea, afforded him one-third discount and sentenced him to individual sentences as follows:

˗  Charge 1, 4 months’ imprisonment;

˗  Charge 2, 2 years’ imprisonment;

˗  Charge 3, 2 years’ imprisonment;

˗  Charge 6 and 7, 4 months’ imprisonment each and a disqualification order for 12 months;

˗  Charge 11, a fine of $900;

˗  Charge 12, 3 months’ imprisonment.

10.  The judge then ordered sentences for Charges 1 and 2 to run concurrently, and sentences for Charges 6 and 7 to run concurrently. He then ordered 15 months out of the sentences of Charge 3, the total sentence in respect of Charges 6 and 7, and the total sentence in respect of Charge 12 to run consecutively (i.e. 2 years + 15 months + 4 months + 3 months, making a total of 46 months’ imprisonment).

The applicant’s ground of appeal

11.  Ms Barbara Wong, for the applicant, does not challenge the individual sentences but argues essentially on one ground of appeal, i.e. the judge misapplied the totality principle in arriving at the final sentence, rendering it wrong in principle and/or manifestly excessive.

12.  It is submitted that the judge, in ordering 15 months out of Charge 3 to run consecutively to the concurrent sentences of 2 years for Charges 1 and 2, erred in not sufficiently taking into account that Charge 2 was a failed attempt; and Charges 2 and 3 were committed within such proximity of time and place that they should have been regarded as a continuous course of conduct.

13.  It is further submitted that Charges 6 and 7 were committed in the course of committing Charge 3 and it is arguable that the sentences in respect of all three charges should be ordered to run concurrently. Ms Wong submits that any stealing of a car would necessarily entail contravention of the Motor Vehicle Insurance (Third Party Risks) Ordinance. Therefore, as Charges 6 and 7 both stemmed from the actus reus of the theft of the LGV, i.e. Charge 3, these sentences should be ordered to be served wholly concurrently.

14.  Ms Wong refers this court to the case of HKSAR v Lai Lit Man[6]which involved four offences of theft of vehicles committed over a period of two months. The appellant’s overall sentence of 48 months’ imprisonment for guilty pleas tendered only after voir dire was upheld by the Court of Appeal.

15.  Thus, it is submitted that the overall sentence of 46 months on a plea is excessive. Should the judge properly apply the totality principle, he should have ordered:

(i)  Charge 2 to run wholly concurrently with Charge 1;

(ii)  12 months from Charge 3 to run concurrently with Charge 2;

(iii)  Charges 6 and 7 to run wholly concurrently with each other, and concurrently with Charge 3;

(iv)  Charge 12 is to run consecutively to Charges 6 and 7,

resulting in a total of 39 months’ imprisonment.

The respondent’s submission

16.  Ms Claudia Ng, for the respondent, opposes the application. Ms Ng refers to the approach set out by the Court of Appeal in HKSAR v Ngai Yiu Ching[7] and submits that Charge 3 (i.e. the theft of the LGV) added substantially to the applicant’s culpability in Charges 1 and 2 (i.e. the attempted theft of RZ3247 and personal properties inside RZ3247). It only shows that the applicant did not give up after failing to steal RZ3247. The offences were not opportunistic and even the counsel for the applicant in the court below conceded that his point “about opportunistic theft goes out the window” after having viewed the applicant’s criminal records.[8]

17.  The respondent submits in view of the circumstances of the present case, the aggregate sentence of 39 months in respect of Charges 1, 2 and 3 is within a reasonable range in the circumstances.

18.  Further, it is contended that Charges 6 and 7 add further criminality which demands a partial consecutiveness in sentence to reflect the applicant’s overall culpability. Whilst in some cases the offence of “Driving without a third party insurance” was an inevitable consequence of driving a stolen vehicle: HKSAR v Muhammad Waqas[9], in appropriate cases consecutive sentence to that of a charge of theft of vehicles were upheld by the Court of Appeal: HKSAR v Tsang Kwun Wing[10]; HKSAR v Yeung Chi Wa[11].

19.  In respect of the overall sentence, whilst the judge expressly said that he would not enhance the applicant’s sentence for theft for his previous convictions, the respondent draws this Court to the attention that the applicant committed the present offences only two months after his discharge from the 40 months’ sentence imposed on him on 21 February 2018 which involved a case very similar in nature to the present[12]. Same modus operandi was involved where the applicant targeted and stole unattended vehicle and the properties therein. Means was deployed to avoid detection. This, the respondent argues, shows that the overall 40 months’ imprisonment imposed previously imposed clearly had no deterrent effect on the applicant. As such, the overall sentence of 46 months’ imprisonment imposed on the applicant is neither wrong in principle nor manifestly excessive.

Discussion

20.  The applicant’s contention that the attempted theft of RZ3247 and the theft of the LGV should be viewed as one continuing transaction is misconceived. As explained in Ngai Yiu Ching, supra, the ultimate overall sentence is to reflect the “overall and true culpability”. The real point is “whether the second or other further offences add to the culpability or criminality of the first” [13].

21.  Charges 1 and 2 happened between 8:10 pm on 27 November 2019 and 5:15 am on 28 November 2019, whilst Charge 3 happened between within 50 minutes after PW2 left the LGV unattended. By pleading guilty to an attempted theft of RZ3247, it is clear that the LGV was stolen after he failed to steal RZ3247. Furthermore, sprays were applied to the body of the LGV to hide the company name, logo and contacts, and the number plates were changed. These are evidence of an intention to inhibit police investigation and recovery by the owner. Motive or purpose apart, successive thefts committed within a short period of time have been held to be “very serious offences per se”: HKSAR v Li Cheung Yin and others[14]. The two offences in the present were plainly planned and not opportunistic, and the second adds to the culpability of the first. Worse still, the applicant’s criminal record of 32 previous criminal convictions, including 4 thefts, 9 burglaries, 6 drug-related convictions and 8 traffic-related convictions was much worse when compared to the appellant in Li Cheung Yin that where the total term of 40 months’ imprisonment for 2 theft charges was upheld.

22.  Regarding the appropriateness of the consecutive sentences ordered for Charges 6 and 7 both of which involved the licence issue, Stuart-Moore VP in HKSAR v Tsang Kwun Wing[15](paragraph 9) said:

“9. We are unable to agree with Mr Kelly that the judge erred either in the starting points which he adopted for these two offences or in his decision to make consecutive terms of imprisonment to those imposed on charges 1 to 5. The applicant had no insurance to drive this stolen taxi and he was unlawfully driving it for a very considerable time. Whilst the offence of driving without insurance had arisen because the applicant was driving the stolen vehicle, and in this sense arose from the theft allegation, he created by doing so a serious hazard to other road users in general. The theft of the taxi will, no doubt, have been a major inconvenience to its owner but the offence in charge 6 affected the road-using public at large.”

23.  Counsel for the applicant has downplayed the seriousness of Charges 6 and 7 in submitting that they arose from and shared the same actus reus of the theft of the LGV. Charge 6, being a charge of “Driving while disqualified”, was committed on 28 November 2019 when his last conviction for road traffic and theft offences was on 21 February 2018 for which he received a total of 40 months’ imprisonment. He committed the present offences shortly after his discharge when he was still under the disqualification order. This shows a flagrant disregard of the court’s order and the previous sentences were of no deterrent effect to him. The situation is different from HKSAR v Muhammad Waqas[16]. It is not reasonably arguable that the judge erred in ordering consecutive sentences the way he did.

Conclusion

24.  For these reasons I refused the applicant leave to appeal his sentences. I reminded the applicant of his right to renew his application before the Court of Appeal and also reminded him that should he do so, and should the Court of Appeal find no merit in his renewed application, the Court of Appeal had the power to order loss of time under section 83W(1) of the Criminal Procedure Ordinance, Cap 221.

[1] Contrary to section 9 of the Theft Ordinance, Cap 210 and section 159G of the Crimes Ordinance, Cap 200.

[2] Contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374.

[3] Contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.

[4] Contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134.

[5] Contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138.

[6] CACC 578/2002, unreported, 13 June 2003.

[7] [2011] 5 HKLRD 690, at §§17 – 23.

[8] Appeal Bundle 39K-L

[9] [2019] 4 HKLRD 323, at §55.

[10] CACC 89/2004, unreported, 14 September 2004.

[11] [2018] HKCA 73

[12] HKSAR v Chin Chin Fai, [2011] 2 HKLRD 630

[13] paragraph 21, at page 699

[14] CACC 313/2011, unreported, 21 September 2012

[15] CACC 89/2004, unreported, 14 September 2004

[16] [2019] 4 HKLRD 323