HKSAR v. CHOW KUEN FUNG

CACC 136 /2024, [2025] HKCA 518

On Appeal From [2024] HKDC 980

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 136 OF 2024

(ON APPEAL FROM DCCC NO 578 OF 2023)

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J U D G M E N T

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A. Background and charges

1.  The applicant pleaded guilty in the District Court before Deputy Judge KH Cheang (“the judge”) to a total of 15 charges (paragraph 2 infra), for which he was convicted and sentenced to 67 months’ imprisonment.  In respect of Charges 4, 5, 6 and 8 only, the judge also made two consecutive disqualification orders, which together made up a period of 7 years’ disqualification.  The applicant seeks leave to appeal against his sentence of imprisonment and the disqualification orders.

2.  The 15 charges in question emerged from no less than eight incidents of theft (or attempted theft) of vehicles in the Yuen Long district and can be grouped into five distinct offences, as follows:

(a)     Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1, 2, 9, 10, 11, 12 and 13).

(b)     Attempted theft, contrary to section 9 of the Theft Ordinance and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 3).

(c)     Driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374 (Charges 4 and 5).

(d)     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 (Charges 6 and 7).

(e)     Forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance (Charges 8, 14 and 15).

B.  Facts accepted by the applicant

B.1.1.  Charge 1

3.  In the morning of 14 September 2022, it was discovered that the warehouse of Kwong Yu Plastic Factory Limited in Yuen Long had been burgled.  On being informed of this fact, Mr Chan Man Hin found that his private car KY 325, which had been parked inside, was missing.  He then appealed for information on Facebook.  On 18 September 2022, his car was recovered in Hong Po Road with false registration plates affixed.

B.1.2.  Charge 2

4.  In the evening of 16 September 2022, it was discovered that another warehouse near DD104, Lot 2934, Castle Peak Road Mai Po, had also been burgled.  On the evening before, Mr Cheung Kwong Ping (PW2) had parked his private car TB 1605 there and left.  CCTV evidence showed that his car was driven away by an unknown person on 16 September at 5:18 am.  The car was recovered by the police on 23 September 2022.

B.1.3.  Charges 3, 4, 5, 6, 7 and 8

5.  On 21 September 2022, at 12:05 am, when Mr Wong Ka Wai (PW3) was returning to his private car XZ 3453, which he had parked near lamppost FB 3861 on Tin Yuet Road, Yuen Long, he noticed a stranger (who was the applicant) attempting to drive his car away, with the applicant’s co-accused, D2, assisting in directing the traffic flow to enable the applicant to leave. PW3 immediately approached his car and knocked on the window, and successfully stopped the theft.  In the end, the applicant fled with D2 in a car that was driven by the applicant.  The ignition switch of PW3’s car had been damaged by the applicant. 

6.  When attempting to steal XZ 3453 (which constituted Charge 3) and driving the getaway car, the applicant was in fact subjected to a driving disqualification order (between 21 December 2021 and 20 June 2025) (which constituted Charges 4 and 5 respectively).  In addition, there was no third party insurance in effect in respect of his driving of XZ 3453 and the getaway car (which constituted Charges 6 and 7 respectively). Furthermore, false registration number plates had been affixed to the getaway car (which constituted Charge 8).

B.1.4.  Charge 9

7.  On 7 October 2022, at 7 pm, when returning to his private car RJ 5493, which he had parked near lamppost FB2556 Fung Kat Heung, Pat Heung some 6 hours earlier, Mr Kok Yiu Keung (PW4) found that it had been stolen.  On 29 October 2022, the applicant led police to a place near lamppost FC0008, Chi Ho Road, Pat Heung when the vehicle was recovered.  The hi-fi, automotive head unit, front number plate and vehicle licence were found to be missing, and the ignition switch and rear number plates were damaged.

B.1.5.  Charges 10 and 14

8.  On 17 October 2022, Mr Lam Chun Lung (PW8) parked his private car KL 8449 at Fai Wong Garage, 100 Kam Tin Road, Pat Heung. Seven days later (on 24 October 2022), he returned and found his car missing. These facts constituted Charge 10. 

9.  On 29 October 2022, the car was recovered by the police outside Yuet Wah House, Tin Shui Wai, with the replacement of new registration number plates relating however to another car traceable by a different chassis number (which constituted Charge 14).

B.1.6.  Charge 11

10.  On 18 October 2022, at 9 am, a private car VK 3727 belonging to Mr Chan Hon Cheong (PW6) was found missing from DD13, Lot 106, Ho Pui Tsuen, Kam Ho Road, Pat Heung.  CCTV evidence showed the applicant appearing at the location on 17 October 2022 at 12:28 pm and driving the car away at 12:31 pm.  On 29 October 2022, the car was recovered from Lam Tai West Road in Yuen Long, without any registration number plates.

B.1.7.  Charge 12

11.  On 23 October 2022, at 9 pm, Ms Ng Suk Wa Doby (PW9) parked her private car UF 4797 near lamppost AD7259 Pat Heung Road and left.  She returned on 25 October 2022 at 5 pm to find her car missing.  On 29 October 2022, that car (together with the other car in Charge 11) was recovered from Lam Tai West Road in Yuen Long without any registration number plates. The offside rear windows at the passenger seat had been broken, and the ignition switch removed.

B.1.8.  Charges 13 and 15

12.  On 26 October 2022, at 3:30 pm, Mr Afsar Khan (PW10) parked his private car PG 635 outside DD114, Lot 215216, Lo Uk Tsuen, Kam Tin Road, Pat Heung and left.  He returned on the following day and found his car missing.  The theft of the car constituted Charge 13.  On 29 October 2022, the car was found by the police, in the presence of the applicant, in Nga Tat Car Park, Tin Yip Road, Tin Shui Wai, with false registration number plates, which constituted Charge 15.

B.2.  Arrest and caution

13.  On 22 September 2022, the applicant was arrested by the police for the offence of Attempted taking conveyance without authority and Forgery of documents.

14.  On 29 October 2022, at 1:35 pm, the applicant was intercepted by the Police outside Yuet Wah House, Tin Yuet Estate, Tin Shui Wai (where the stolen car in Charge 10 was recovered).  When searched, seven car keys were discovered inside his bag.  Under caution, he disclosed that he had stolen a total of three cars, namely the subject matter of Charges 9, 10 and 13.

15.  A total of 10 cautioned video recorded interviews were conducted between 23 September and 31 October 2022.  Apart from his previous admissions, the applicant also admitted that he had driven whilst disqualified.

16.  When pleading guilty, the applicant accepted his commissions of all the offences in the 15 charges.

C.  Mitigation and sentence

17.  The applicant was 40 years of age at the time of sentence and unemployed at the time of his arrest.  He had 37 previous convictions and those relevant to the present offences include:

(a)     3 convictions of taking conveyance without authority (one entered in 2015, and two in 2018 during the same court appearance);

(b)     2 convictions of theft (entered in 2022 during the same court appearance);

(c)     One conviction of obtaining property by deception (entered in 2018);

(d)     6 convictions of driving whilst disqualified (entered in 2004, 2012, 2015 (two during the same court appearance), 2018 and 2022 respectively);

(e)     6 convictions of using a motor vehicle on a road against third party risks (each of them was entered at the same time as the convictions for driving whilst disqualified); and

(f)     2 convictions of possession of forged driving/vehicle document (entered in 2022 during the same court appearance).

18.  The most recent previous convictions of the applicant concerned his appearance in HKSAR v Chow Kuen Fung [2022] HKDC 38 on 7 January 2022 in respect of, inter alia, two charges of theft (of vehicles), two charges of possession of a forged driving/vehicle document and one charge of using a motor vehicle on a road without insurance against third party risks, for which he was sentenced to 36 months’ imprisonment and disqualified from driving for 3½ years (taking into account the fact that it was his 6^th conviction for a similar offence).  He was discharged from prison on 14 April 2022^[1].

19.  In relation to the present offences, the judge adopted a starting point of 3 years’ imprisonment for Charges 1, 2, 3, 9, 10, 11, 12 and 13; 7 months’ imprisonment for Charges 4, 5, 6 and 7; and 7½ months’ imprisonment for Charges 8, 14 and 15.  In view of the aggravating features, the judge enhanced each of the sentences of imprisonment in respect of Charges 1, 2, 3, 9, 10, 11, 12 and 13 by six months (on the basis of the applicant’s previous convictions; his commission of those offences some 5 months after his discharge from prison; and the commission of the last five offences whilst on police bail^[2]), and each of the sentences for Charges 4, 5, 6 and 7 by 2 months (on the basis of his previous convictions^[3]). Whilst noting the applicant’s two similar previous convictions, the judge did not enhance the sentences in respect of Charges 8, 14 and 15^[4].  He gave the applicant a one-third discount for each individual sentence^[5].  

20.  The judge used the resulting sentence of 28 months’ imprisonment for Charge 13 as the base sentence, to which he ordered the sentences for nine of the other charges to run partly consecutively^[6] (and the other sentences to run concurrently), resulting in a total sentence of 67 months’ imprisonment. 

21.  In addition, pursuant to the applicable statutory requirements, the judge made two disqualification orders against the applicant.  In respect of Charges 6 and 7 (using a motor vehicle without third party insurance), he made an order under section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance that the applicant be disqualified from driving for 3 years from the date of conviction.  As to Charges 4 and 5 (driving whilst disqualified), he made a further order under section 44(2)(b) and (3) of the Road Traffic Ordinance that the applicant be disqualified (in the case of a second or subsequent conviction) from driving for 4 years.  Instead of directing that the second disqualification order also run from the date of conviction, the judge directed that it be “in addition to” the first disqualification order^[7].

D.  Grounds of appeal

22.  Ms Chong, for the applicant, has advanced three grounds of appeal.  Ground 1 avers that the judge should have directed that the two disqualification orders run concurrently with each other from the date of conviction, since it was wrong in principle to impose consecutive disqualification terms, which related to two pairs of charges (Charges 4 and 5 and Charges 6 and 7) arising out of the same incident.  

23.  Ground 2 alleges that the judge was wrong in ordering partly consecutive sentences for Charges 4 and 5, which are again said to arise out of the same incident.

24.  Ground 3 is a catch-all ground which complains that the overall sentence of 67 months’ imprisonment is manifestly excessive.

E.  Respondent’s submissions

25.  Ms Cheng, for the respondent, does not oppose leave being granted on Ground 1, to the limited extent of the proper interpretation of section 44(3) of the Road Traffic Ordinance when read together with section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, notwithstanding her position that the total length of disqualification is otherwise entirely appropriate in the present case.

26.  In respect of Grounds 2 and 3, Ms Cheng submits that the applicant’s commission of the offence in Charge 5 added to the culpability of his commission of the offence in Charge 4, which justified a partly consecutive sentence.  They were two different offences involving two different vehicles.  She also argues that the total sentence was not excessive since it was a very bad case involving a multiplicity of offences committed by the applicant whom, she describes, as a serious or serial recidivist.  She further points to the applicant’s numerous previous similar convictions; his commission of offences, or further offences, shortly after being released from prison and whilst on police bail; and the fact that Charge 3 was the result of a joint enterprise.  Accordingly, she invites the Court to refuse leave on Grounds 2 and 3.

F.  Consideration

27.  Section 44 of the Road Traffic Ordinance places a mandatory requirement on the judge, having convicted a person of driving whilst disqualified (the subject offences of Charges 4 and 5), to impose a disqualification order (save for special reasons).  Section 44(2) states that:

“If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified—

(a) …

(b) in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 25 of the repealed Ordinance, for a period of not less than 3 years,

unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.”

28.  In respect of the start of the disqualification order, section 69A(1) and (2) of the Road Traffic Ordinance specifically provides that, where a person is convicted of a “relevant scheduled offence” and such conviction is his second or subsequent conviction of such offence, the judge must direct that the disqualification period is not to start to run until he finishes serving the term of imprisonment or detention, or finishes serving any other term of imprisonment or detention which he is undergoing at the time, save and except where special reasons apply.  A “relevant scheduled offence” is further defined under section 69A(9) as an offence mentioned in the Schedule to the Road Traffic (Driving-offence Points) Ordinance, Cap 375; however, such an offence does not encompass the offence of driving whilst disqualified. 

29.  Since section 69A does not apply to the offence in question, and section 44(3) deals with a disqualification period in addition to one ordered under the same Ordinance, it is a reasonable argument whether the judge had the power to defer the effective date of the second disqualification order until after the expiry of the first disqualification order he had passed in respect of Charges 6 and 7 (at which no criticism is levelled).  Such an argument will engage the issue of whether a 7-year disqualification period, which is 4 years in excess of the minimum requirement under section 44(2)(b), is excessive in the circumstances of the present case, irrespective of how it was worked out by the judge.  I shall grant leave on Ground 1 to enable those matters to be fully argued before the Court of Appeal.

30.  As to the other complaints against sentence, it should be remembered that the applicant has an appalling criminal record, with no less than six previous convictions in respect of offences against the Theft Ordinance, driving whilst disqualified and using a motor vehicle without third party insurance.  He should consider himself fortunate that his two previous convictions for possession of forged driving/vehicle document were excluded by the judge for the purpose of sentencing.  One must also not lose sight of the serious aggravating feature that the applicant committed most of the present offences whilst on bail on five different occasions.  The fact that those offences were committed some 5 months after his discharge from prison for similar or the same offences is further indicative of the lack of deterrent effect of the past sentences and, perhaps, a need for greater personal deterrence.

31.  Although Ground 2 focuses on the mechanics by which the judge came to the final sentence, I should point out that the ultimate question for the Court is whether such sentence is manifestly excessive.  Given the facts and aggravating features present, I do not see any reasonable argument that the sentence of 67 months’ imprisonment was manifestly excessive and/or wrong in principle. 

32.  Accordingly, leave to appeal against sentence is granted on Ground 1 only but it is refused on Grounds 2 and 3.  The applicant is advised that he has the right to renew his application for leave, on the two grounds on which leave has been refused, before the Court of Appeal, but he is also warned of the consequences of so doing, which may include a direction for the loss of any 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]  Reasons for Sentence, at [30].

[2]  Reasons for Sentence, at [36].

[3]  Reasons for Sentence, at [37]-[38].

[4]  Reasons for Sentence, at [39].

[5]  Reasons for Sentence, at [40].

[6]  Namely, 5 months of the sentence for Charge 1, 5 months of the sentence for Charge 2, 5 months of the sentence for Charge 3, 2 months of the sentence for Charge 4, 2 months of the sentence for Charge 5, 5 months of the sentence for Charge 8, 5 months of the sentence for Charge 10, 5 months of the sentence for Charge 11 and 5 months of the sentence for Charge 12: Reasons for Sentence, at [47].

[7]  Reasons for Sentence, at [42].