HKSAR v. Yu Chi Chiu

[English Translation — 英譯本]
CACC 198/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 198 OF 2015

(ON APPEAL FROM DCCC 201 OF 2015)

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REASONS FOR JUDGMENT

Hon D Pang JA (giving the Reasons for Judgment of the Court):

1.This is an appeal from the District Court. The Appellant admitted one charge of “theft”[1], contrary to section 9 of the Theft Ordinance, Cap. 210, and was sentenced to 2 years and 4 months’ imprisonment by the trial judge (Judge Sham) and disqualified from driving for 6 years. The Appellant was aggrieved and made an application for leave to appeal against sentence. The application was dealt with by a single judge and the hearing for the appeal proper was heard by this Court. See paragraph 28 of this Judgment for the decision on the appeal.

Summary of facts

2.The following is the trial judge’s summary of facts in the case[2]:

“2. The facts show that the car owner Mr. Chow parked his light goods vehicle in Tsui Ping North Estate Carpark at around 9 a.m. on 13 January 2015. When he returned to the Carpark at around 6:30 p.m. on the same day to collect his vehicle, he found it missing and therefore reported the matter to the police.

3. At around 8 a.m. on the following day, the defendant drove the missing vehicle and entered the precinct of the wet market of Yue Wan Estate. He parked the vehicle there and then left. Later someone discovered the missing vehicle and called the police. The police later arrived at the scene and waited there for the suspect to show up. At around 11:30 on that day, the defendant came. He opened the light goods vehicle and sat at the driver’s seat. The police therefore took action and arrested the defendant.”

Plea of mitigation

3.The following is the defence’s plea of mitigation:

“4. The defendant is now 40 years old and has 33 previous criminal convictions, among which 8 convictions related to acts of dishonesty. The Court adjourned sentence and called for a background report on the defendant. Simply put, the report stated that the defendant was not able to have a stable job because he often broke the law and had to go in and out of prison in the past. As for his family relationship, it was harmonious.

5. The defence counsel submits that the defendant committed this crime in a moment of greed. He asks the Court for a chance to turn a new leaf. The defendant will go out to find a job and resume a decent life after he is released from prison. The defence counsel also submits that the vehicle involved in the case was not expensive and it was found quickly. So the case only caused inconvenience to the vehicle owner for roughly only half day. The crime was committed by the defendant alone and it was not a car theft by an organized gang.”

Sentencing by the trial judge

4.Having cited briefly the case of HKSAR v Li Cheung Yin CACC 313/2011 and a few cases mentioned by the Court of Appeal in that case[3], the trial judge said the following:

“8. It is obvious that in respect of the present case, the vehicle stolen by the defendant was a light goods vehicle. Based on the precedents, the Court of Appeal considered that a sentence of 3 to 5 years’ imprisonment would be appropriate for this type of offences.”

5.He said:

“9. Apart from the defendant’s guilty plea, there is no other persuasive factor in mitigation. I take 3 years’ imprisonment as the starting point for sentencing. According to the information provided by the prosecution, the defendant was released on 11 October 2014 and the present case took place on 13 January 2015. In other words, the defendant committed another serious crime only 3 months and 2 days after his release from prison. It is an aggravating factor for the defendant to commit another crime within a short time since his release. In respect of this factor, I impose an additional 3 months’ imprisonment.

10. As for the defendant’s criminal conviction records, he has 8 convictions that involved acts of dishonesty. In this regard, I consider that the defendant is a repeated offender of this type of crimes. The previous sentences have obviously failed to have a deterrent effect on the defendant. In respect of this factor, I impose an additional 3 months’ imprisonment. The defendant pleaded guilty and is entitled to a one-third discount. The sentence imposed is therefore 2 years and 4 months’ imprisonment.”

6.As for whether a qualification order (commonly known as the suspension order) is appropriate, the trial judge made the following conclusion:

“11. Pursuant to section 69 of the Road Traffic Ordinance, the Court considers ordering that the defendant be disqualified from driving. It is understood that the defendant has never had a valid driving licence. He first committed a driving offence in 1993 and reoffended in 2009. He had two similar convictions of driving offence in 2011. In view of that, I consider that it is a must that the defendant be prohibited from driving for a period of time, and that he be disqualified from obtaining a driving licence and prohibited from driving.

12. After consideration, it is ordered that the defendant be disqualified for 6 years, during which he is disqualified from obtaining or holding a driving licence of any class of vehicle, and is prohibited from driving.”

Granting of leave to appeal

7.Originally, the Appellant acted in person in his application for appeal. His ground was that it was not fair to him because he committed only one offence and his disqualification period of 6 years was too long as compared with other offenders. Moreover, he also argued that he was only greedy for the valuables inside the vehicle. It was only when he found that the vehicle key inside the compartment that he tried to start off the vehicle and drive it away for “a joyride”. The Appellant emphasized that he had no accomplice when he committed the crime. He did not change the licence plate to cover up his act and therefore, it was a case of “taking conveyance without authority”[4] and he should be dealt with accordingly[5].

8.However, according to the Judgment by the single judge, there could only be two reasons why the Appellant was granted leave to appeal. The reasons are as follows:

(1) The trial judge could have erred in principle and/or imposed a sentence that was manifestly excessive because he imposed the sentence on two grounds, namely that the Appellant committed the offence shortly after his release from prison and that he had numerous similar convictions in the past. (hereinafter as “Issue 1”)

(2) The trial judge could have made a procedural mistake as he did not comply with the provision in section 69A of the Road Traffic Ordinance to direct that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. The disqualification period of 6 years that he ordered could also be manifestly excessive. (hereinafter as “Issues 2A and 2B”)

This appeal

i)   The question is not about the sentencing starting point

9.As seen from paragraph 8 above, the single judge did not allow the Appellant to appeal on the ground that the sentencing starting point was too high. The counsel for the Appellant also expressed in the course of the appeal proper that he would not pursue that ground of appeal[6].

10.However, for the sake of completeness, I will also point out that the theft of a vehicle is a serious crime for the following reasons:

(1) Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

(2) A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters, and all types of memory cards or access cards).

(3) A vehicle is often parked in the public place, making it prone to be a target of theft.

(4) To the owner of a private vehicle, the loss of his vehicle will cause him great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.

11.Regardless of the purpose of thieves and whether the number of vehicle thefts is rising sharply, the severity of vehicle thefts is reflected in the four points mentioned above. If other factors are involved (e.g. the vehicle theft is carefully planned, the stolen vehicle is resold or used to commit other crimes), they will be considered as aggravating factors.

12.For reasons stated above and in view of the actual facts in the case, we do not think that it was manifestly excessive for the trial judge to take 3 years’ imprisonment as the starting point for sentencing. That basis is consistent with the general sentencing quantum laid down in cases. The Appellant had stolen the vehicle for at least 17 hours and had not returned or discarded it during the interval, which was obviously contrary to the circumstances of “taking conveyance without authority”. As a matter of fact, the Appellant pleaded guilty to “theft”, meaning that he admitted having the intent to permanently deprive others of their property. The offence of “theft” and that of “taking conveyance without authority” are no comparison.

ii)   The problem of doubly aggravated sentence

13.The cruxes of the case are twofold. Firstly, it is “Issue 1”.

14.Experience shows that some judges will enhance the sentencing starting point if the culprit commits an offence shortly after his release from prison. If the culprit has numerous similar convictions in the past (also known as a persistent offender), that will definitely be a recognized factor for enhancing the sentencing starting point: HKSAR v Chan Pui Chi [1992] 2 HKLRD 830.

15.But, as McWalters J said in the judgment of HKSAR v Yeung Kam Tung CACC 427/2012 (date of judgment: 19 March 2013), in the case that both factors exist and as far as enhancing sentencing starting point is concerned, the factor of reoffending shortly after release is no different from that of having multiple similar convictions in the past. The former is at most proof of the latter. He said:

“12. The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant. The first was the fact that the offence was committed on the day of his discharge from prison for a like offence. The second was his history of offending which caused her to characterise him as a persistent offender.

13. Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender ....”

16.Given the above, the trial judge has undoubtedly committed an error in principle when he imposed an additional 3 months on the basis that the two factors co-existed.

17.It is also worth mentioning that though the Appellant has 10 (and not 8 as mentioned by the trial judge) previous convictions of “dishonesty”, only 5 of which are “thefts”. And looking at the severity of the sentences imposed, those convictions could not possibly be thefts of vehicles. Regarding the convictions that are directly related to vehicles, the record shows that the Appellant has only one conviction of “taking conveyance without authority” in 1993 when he was only 18 years old.

18.In the circumstances, the trial judge enhanced the sentencing starting point by a total of 6 months. To us, that was manifestly excessive. We think that an enhancement of 2 months will be appropriate.

19.Conclusion: the sentencing starting point should remain to be 3 years and be enhanced by 2 months as the Appellant is a persistent offender. The Appellant has pleaded guilty and is entitled to a one-third discount, therefore the sentence to be imposed is reduced to 25 months (i.e. 2 years and 1 month).

iii)   Excessively long period of disqualification

20.A careful look at section 69A the Road Traffic Ordinance will show that the section is only applicable to a defendant convicted of “a scheduled offence” (See section 69A(1)(a) to (d)). It is not applicable to a defendant who is disqualified for a conviction of “stealing a motor vehicle”) (See section 69(1)(c)). In other words, there was no need for the trial judge to specify that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. That would also mean that “Issue 2A” does not exist and that the disqualification period would start to run from the same day the trial judge made the order.

21.As for “Issue 2B”, what will a 6-year disqualification period mean according to the original sentence (2 years and 4 months)? It would mean that the Appellant would be disqualified from obtaining a driving licence within 3 years and 8 months since his release from prison. If the Appellant is granted an early discharge for good conduct and behaviour in prison (usually the term is shortened by a third), he would even be disqualified from obtaining a driving licence for a longer period of 4 years and 5 months after his release from prison.

22.We understand that the Appellant has never obtained a driving licence since 1993 (when he was 18 years old), but from the same year (1993) he has intermittently committed multiple offences related to driving. His last few offences were convicted in a year as close as 2012 (“driving a vehicle without a driving licence” and “driving on the road a vehicle of a class specified in schedule”) and that was why the trial judge imposed a 6-year disqualification order. The trial judge believed, “To prohibit the defendant from driving is a must!”

23.But according to the authoritative decision of the England Court of Appeal in the case R v Cooksley [2004] 1 Cr App R (S) 1 in this regard, a disqualification order is forward looking and preventive rather than punitive. It is designed to protect road users in the future from an offender who has shown himself to be a real risk on the roads (See paragraph 40 of the judgment):

“.... The main purpose of disqualification is .... ‘forward looking and preventive rather than backward looking and punitive’. It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”

24.It is also said in paragraph 43 of the same judgment that the length of the disqualification should not be tailored to take into account the anticipated date of early release of the offender. On the other hand, an excessively long period of disqualification might be counter-productive because an offender who is obsessed with cars or requires a driving licence to earn his or her living may yield to the temptation to drive without a valid licence:

“We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand, we accept that to extend the ban for a substantial period after release can be counter‑productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified”.

25.Coming back to the present case, the facts show that though the Appellant has persistently committed the offence of driving a vehicle without a licence, he has never been convicted of “dangerous driving” or “careless driving”. As he kept driving a vehicle, it is probably a temptation too strong for him to resist. For the above two reason, this Court is of the view that a 6-year disqualification order is undoubtedly wrong in principle and excessively severe.

26.This Court considers that a shorter disqualification order may perhaps remind the Appellant to take the driving licence test as soon as possible. This is another signal that this Court gives him (the Appellant has on a few occasions been disqualified from driving). If the Appellant really comes to his senses, the road users will have greater protection in the future because at least the Appellant will not be driving a vehicle without third party insurance. If the Appellant really comes to his senses, he will not risk driving a vehicle or even driving a stolen vehicle whilst being disqualified.

27.Conclusion: the disqualification order made by the trial judge should be reduced from 6 years to one of 4 years.

Conclusion

28.The Appellant’s appeal is allowed. The sentence of 2 years and 4 months is now set aside and a sentence of 2 years and 1 month of imprisonment is imposed instead. The 6-year disqualification is also set aside and the Appellant is disqualified from driving for 4 years instead.

Ms Catherine Ko, SADPP(Ag), of the Department of Justice, for HKSAR

Ms Sezen Chong and Mr Amos Ma, instructed by Hong Kong Bar Association Free Legal Service, for the Appellant

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr Patrick W.S. Cheung, Barrister-at-law.