HKSAR v. FUNG SHUI LEUNG, BILLY AND ANOTHER

CACC17/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. CACC 17 OF 2007

(ON APPEAL FROM DCCC 1107 OF 2006)

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REASONS  FOR  JUDGMENT

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Tong J (Giving the judgment of the Court) :

1. The two appellants (D1 and D2, respectively) were charged with a total of 14 counts of offences, including theft, driving without a valid driving licence, using a motor vehicle without third party insurance, failing to stop after accident, handling stolen goods and possession of a Part I poison. 

2. They both pleaded guilty to all the offences and admitted the summary of facts.

3. What transpired was that on 9 October 2006, police officers located the appellants sitting in a light goods vehicle unloading two containers containing scrap metals in a scrap yard in Lok Uk Tsuen in Yuen Long.  The engine of the vehicle was still running but there was no ignition key found.

4. Police investigation revealed that the light goods vehicle was stolen from a motor parts company in Kam Sheung Road, Yuen Long.  The actual registration number was HH5219.  The vehicle licence of CH397 found on the windscreen of the stolen vehicle was in fact taken from another light goods vehicle.  And right after light goods vehicle HH5219 had been stolen by D2 on 30 September 2006, it had a collision with another vehicle KY3489, but D2 ran away without stopping.  It was discovered that while D1 had a driving licence, D2 had none.

5. D1 made admissions that in the evening of 8 October 2006, he was taken by D2 to the vehicle CH397 which he knew to have been stolen.  He hot-wired the vehicle and drove D2 to steal and sell scrap metals.  As to the prohibited cough syrup, D1 admitted to have purchased it for his addiction.

6. D2 also made admissions about the theft of the vehicle CH397 on 30 September 2006, the collision with KY3489, the repainting of the stolen vehicle, the replacing of the stolen plates, and the five incidents of theft of scrap metals.

7. Having listened to mitigation, Deputy Judge A. Kwok (“the Judge”) granted the usual one third discount for the guilty pleas and imposed the following sentences :

(a)	For D1 :
	(1)	Charges 9 to 11	16 months each	All concurrent
	(2)	Charge 12	2 years	Consecutive to (1)
	(3)	Charge 13	2 months	Concurrent to (1), (2) and disqualified to hold driving licence for 3 years
	(4)	Charge 14	2 months	Consecutive to (1), (2) and (3)
				(Total : 3 years 6 months)
	(5)	The term of 3 years and 6 months to run consecutively to the current sentence that D1 was serving (6 months’ imprisonment in another case of 6 counts of attempted theft from vehicle).
(b)	For D2 :
	(1)	Charges 1, 7 to 11	20 months each	All concurrent
	(2)	Charge 3	2 years	Consecutive to (1)
	(3)	Charges 2, 4 to 6	6 months	Concurrent to (1) and (2)
	(4)	Charge 5	Disqualified from holding a driving licence for 24 months
				(Total : 3 years 8 months)

8. Both appellants lodged their applications for leave to appeal against their sentences.  They acted in person as their application for legal aid had been refused.  Their leave application was heard and was allowed by Tang VP on 26 June 2007.

Grounds for the application

9. D1 complained that :

“

The case was a series of happenings, but the sentence wasn’t concurrent.  Only the sentence for charge 13 about being without third party insurance was made concurrent.  I was already sentenced to 3 months’ imprisonment for charge 13, so why should my driving licence be further suspended?  My penalty is excessive in totality; this wasn’t even considered.”

10. D2 stated that the three-year starting point was too high as his offences were not of the most serious type of theft, the stolen scrap metals were not of high value and were left unattended in open area.  The total sentence of 3 years 8 months’ imprisonment were too high as there was no threat in people’s life.

The respondent’s submissions

11. The respondent contended that the Judge had very carefully and logically, evaluated all the relevant factors before imposing the sentence, and there was no error in his approach in setting the starting points for the various offences.  The Judge had also taken into account the principle of totality in ordering which parts of the terms are to be served concurrently or consecutively.  The respondent invited this court to find that the sentences were neither wrong in principal nor manifestly excessive.

12. While we accepted that individually speaking, there was nothing wrong with the terms of sentences imposed, but the final term for the appellants would mean a global starting point of about 5 years for D2 and 4½ years for D1 given the particular circumstances of this case, such starting points would not be justified despite their criminal records.

13. We are of the opinion that the global starting point for D2 should be in the range of 4½ years and D1’s sentences should also be adjusted accordingly.  

14. We would not disturb the individual terms imposed by the Judge but in the case of D1, we would order that 8 months from the 16 months imposed for Charges 9 to 11 shall run concurrently with the 2 years imposed for Charge 12.  Hence the 42 months shall be reduced by 8 months, making the final sentence to be 34 months, that is, 2 years and 10 months. 

15. In the case of D2, we would order that 8 months out of the 20 months imposed for Charges 1, 7 to 11 shall run concurrently with the 2 years imposed for Charge 3.  The sentence would therefore be 3 years.

Conclusion

16. For the above reasons, we had allowed the appeal to the extent that D1’s sentence is reduced to 2 years and 10 months and D2’s sentence is reduced to three years.