HKSAR v. WONG KAM SHING

CACC 46/2022 [2023] HKCA 726

On appeal from [2022] HKDC 150

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 46 OF 2022

(ON APPEAL FROM DCCC NO 545 OF 2021)

_______________

_______________

________________

J U D G M E N T

________________

1.  On 26 January 2022, the applicant appeared before Deputy District Court Judge M Chow (the judge) and pleaded guilty to 20 charges variously regarding theft of motor vehicles (Charges 1, 4, 8, 13 and 17); attempted theft of a motor vehicle (Charge 12); theft of the contents of a motor vehicle (Charge 16); driving while disqualified (Charges 2, 5, 9, 14 and 18); using a motor vehicle without third-party insurance (Charges 3, 6, 10, 15 and 19); forgery of documents (Charges 7, 11 and 20). On 10 February 2022, he was sentenced to 6 years’ imprisonment. On 21 April 2022, he applied for leave to appeal against his sentence out of time. He complained that the sentence was relatively heavy compared to similar cases, and the judge misapplied relevant sentencing authorities. He explained that the delay in filing his application was due to the pandemic and the restrictions on using facilities at the prison.

2.  The charges to which the applicant pleaded guilty concerned seven separate incidents between August and November 2020, in which he stole six motor vehicles, attempted to steal a motor vehicle, stole the contents of the motor vehicles, drove the stolen motor vehicles while he was disqualified and without third-party insurance, and committed forgery of documents by using false registration numbers on the stolen motor vehicles. The seven incidents occurred on 13 August 2020 (first incident), 21 August and 3 September 2020 (second incident), 14 and 20 September 2020 (third incident), 16 September 2020 (fourth incident in which he attempted to steal a motor vehicle but was arrested and released on police bail), 6 November 2020 (fifth incident), 9 November 2020 (sixth incident), and 9 and 12 November 2020 (seventh incident). He committed the offences relating to the fifth, sixth, and seventh incidents while on bail for the fourth incident. The applicant was 32 years of age at the time of sentencing with an appalling criminal record. He had on eleven occasions appeared in court regarding 30 criminal convictions involving charges of a similar nature of theft of motor vehicles, driving whilst disqualified and using a motor vehicle without third-party insurance. His last conviction was in January 2019, which involved theft of a motor vehicle and theft of its contents. He committed the offences regarding the first incident soon after his release from his last term of imprisonment in April 2020. It was accepted in mitigation that the applicant aggravated his offending by his previous convictions for similar offences and committing three incidents whilst on police bail.

3.  In sentencing the applicant, the judge noted that theft of a motor vehicle was a serious offence and applied the suggested starting point of 3 years’ imprisonment for such an offence as held in HKSAR v YU Chi Chiu[1]. In a careful and comprehensive analysis of the appropriate sentence for the separate incidents, the judge bore in mind the relevant aggravating factors and the only mitigating factor of his pleas of guilty, which entitled him to a one third discount. The judge then assessed the overall sentence by applying the totality principle. She arrived at a sentence of 6 years’ imprisonment taking also into account that the sentence should reflect a meaningful discount from the maximum ceiling of 7 years’ imprisonment in the District Court. She disqualified the applicant from driving any motor vehicle for 5 years for the offences of theft of a motor vehicle and for 3 years for the offences of driving while disqualified driving without third-party insurance, which she ordered should run concurrently from the date of sentence. The disqualification did not take into account the sentencing principles of Secretary for Justice v Hung Ling Kwok[2] and HKSAR v Wong Mun Ming[3], in which the Court of Appeal held that the period of disqualification should be longer than the prison term for it to have any real significance or meaningful effect. It is also noted that the applicant does not hold a valid driving licence.

4.  The applicant has no cause for complaint about the sentence imposed on him and is fortunate that it was not higher. This is a totally unmeritorious application, and the sentence imposed on him was not a day too long. Accordingly, the applicant’s application for leave to appeal against his sentence out of time is refused.

5.  The applicant is reminded of his right to renew his application for leave to appeal to the Court of Appeal, but he is also informed of the consequences of doing so, which may include further direction for any loss of time spent in custody pending his appeal, if the Court were to come to the view that there was no justification for the renewal of the application.