HKSAR v. RAMOS JR FREDJEWELL A

CACC 88/2021

[2021] HKCA 1010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 88 OF 2021

(ON APPEAL FROM DCCC NO 795 OF 2020)

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J U D G M E N T

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1.  The applicant was charged with one charge of theft^[1], one charge of driving without a valid driving licence^[2] and one charge of using a motor vehicle without third party insurance^[3]. On 24 February 2021, he pleaded guilty to all three charges before HH Judge Casewell (“the judge”) in the District Court. On the same day, the judge sentenced the applicant to a total of 20 months’ imprisonment and disqualified him from driving for 12 months.

2.  On 21 April 2021, the applicant filed a Notice of Application for leave to appeal against sentence out of time, by which date he was out of time by four weeks.  No explanation has been forthcoming from the applicant as to why this application is out of time.

The facts

3.  At about 8 pm on 13 July 2020, a Mr Leung parked his motorcycle with registration mark UT6631 (“UT6631”) near a lamppost on Lok Shan Road at the junction of Maidstone Road in To Kwa Wan, Kowloon.  He left the vehicle without removing the key from the ignition.  At about noon on 14 July 2020, Mr Leung returned to find UT6631 missing.  He duly made a report to the police.

4.  On 26 July 2020, an off-duty police officer, PC23075, saw the applicant driving UT6631.  Feeling suspicious, the officer followed the applicant.  The applicant was later seen parking the motorcycle on Sung On Street in To Kwa Wan.  Shortly thereafter, the applicant got on the motorcycle again and the officer intercepted him.  The applicant failed to produce his driving licence when requested by the officer.   

5.  Transport Department records revealed that the applicant had a valid driving licence for vehicles with automatic transmission only, but not for vehicles with manual transmission.  The applicant was accordingly arrested.  Under caution, he stated that he took the motorcycle out of greed.  When further cautioned and interviewed, he said that he took UT6631 for his own use. The applicant further admitted that he only possessed a valid driving licence for vehicles with automatic transmission.

6.  The applicant accordingly admitted the three offences of stealing UT6631, driving without a valid driving licence and using UT6631 without third party insurance.

Reasons for sentence

7.  The applicant was 42 years of age, born in Hong Kong and educated locally to Form 5 standard.  He had earned a graduate degree from the Philippines in hotel and restaurant management and worked as a fitness instructor and driver in Hong Kong, earning about $18,000 per month at the time of his arrest.  The applicant had a 5‑year old daughter, for whom he was responsible.  The judge observed that the applicant had previously appeared before the courts on no less than 18 occasions and had a number of convictions for theft, as well as one in 2017 for taking a conveyance without authority, for which he was sentenced in the District Court to 26 months’ imprisonment.  His last conviction was for theft in 2019, for which he was sentenced to 8 months’ imprisonment.

8.  Regarding the present charge of theft, the judge remarked that it was an aggravating factor that the applicant had numerous convictions for dishonesty as well as one for taking a conveyance without authority. Nevertheless, he accepted that it was an opportunistic theft and that no alteration or damage had been caused to the motorcycle.  He adopted an initial starting point of 27 months’ imprisonment and enhanced it by 3 months for the aggravating factor of repeated commission.  The sentence was then reduced by one-third for the applicant’s timely plea, resulting in an overall sentence of 20 months’ imprisonment.

9.  In respect of the charge of driving without a valid driving licence, the judge accepted that the applicant held a licence for vehicles with automatic transmission so, to that extent, he was a qualified driver but not for vehicles with manual transmission.  The judge imposed a term of 4 weeks’ imprisonment, which was presumably discounted from a starting point of 6 weeks’ imprisonment.

10.  In respect of the charge of using a motor vehicle without third party insurance, the judge adopted a starting point of 4½ months’ imprisonment and reduced it to 3 months’ imprisonment for plea.  He also imposed a disqualification order for 12 months, which is the subject of the present application.

11.  After considering totality, all sentences were ordered to run concurrently, resulting in a sentence of 20 months’ imprisonment and 12 months’ disqualification from driving.

Grounds of appeal

12.  In the affirmation attached to his Notice of Application for leave to appeal against sentence, the applicant has stated that he will be discharged from prison in September 2021.  Accordingly, he wishes to appeal the 12-month disqualification order, since he intends to take employment as a driver after his discharge.

13.  By a further letter dated 3 June 2021, the applicant expressed the same wish to have his disqualification order reduced because he would need his driver’s licence in order to obtain employment, since he is the only one to provide for his family.  The applicant expressly had no complaint about the terms of imprisonment imposed by the judge, which he described as “reasonable”.

The respondent’s position

14.  The application is opposed by Mr Lau, on behalf of the respondent.  He pointed out that the disqualification term imposed under the relevant section is a mandatory period of 12 months’ disqualification which the court was obliged to imposed, and that there were no “special reasons” connected with the commission of the offence, as distinct from the personal circumstances of the applicant, which would justify the making of a different order.  Indeed, the applicant’s own counsel had properly accepted in mitigation that there were no such “special reasons”[4].

Consideration

15.  As Mr Lau correctly submits, section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 imposes a mandatory requirement of disqualification for not less than 12 months nor more than 3 years from the date of conviction, “unless the court for special reasons thinks fit to order otherwise”.  A circumstance peculiar to the offender, as distinct from the offence, is not a special reason: see HKSAR v Lui Kim Ying [2000] 3 HKLRD 622, at 626B-C.  The fact that the applicant would like his licence back in order to be able to earn his living after he comes out of prison cannot amount to a special reason justifying a court in not ordering disqualification for 12 months.

16.  There is no reasonably arguable ground of appeal that the applicant should not have been disqualified.  As I have said, the judge was obliged under the law to order disqualification for at least 12 months.  I should also say that I have looked at the other sentences passed, since the application for leave must necessarily engage the whole sentence, but I find no reasonably arguable grounds of appeal against any of the sentences passed.  Nor has any explanation been given as to why this application is four weeks out of time.

17.  The application for leave to appeal against sentence out of time is refused.  The applicant is advised that he may renew his appeal against sentence out of time to the Court of Appeal, but he is also warned, should he do so, that the Court has the power to make an order for the loss of any time which the applicant has spent in custody pending his appeal, if it were to come to the view that there was no justification for the renewal of such application.

[1] Contrary to section 9 of the Theft Ordinance, Cap 210.

[2] Contrary to section 42(1) and (4) 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] AB, p 17A.