HKSAR v. Wong Chun Yin and Another

CACC 131/2021

[2021] HKCA 1529

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 131 OF 2021

(ON APPEAL FROM DCCC NO 828 OF 2020)

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AND

CACC 133/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 133 OF 2021

(ON APPEAL FROM DCCC NO 562 OF 2020)

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(Heard together)

Before: Hon Zervos JA in Court

Date of Hearing: 15 October 2021

Date of Judgment: 18 October 2021

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J U D G M E N T

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1.Both Wong Chun Yin (Wong) and Muhammad Shehbaz (Shehbaz) applied for leave to appeal against sentence. They appeared in person at the leave hearing, having had legal aid refused. During the course of the hearing, both Wong and Shehbaz applied to withdraw their respective applications. Consequently, they were reminded of the court’s power to order loss of time and on my invitation, addressed me on this matter. In refusing the applications for leave to appeal against sentence by Wong and Shebaz, I have decided to make an order that four weeks of the time that each has spent in custody awaiting his hearing shall not be reckoned as part of the term of the sentence each is now serving. In the case of Shehbaz, the loss of time order of four weeks will apply to the total sentence of the two cases.

2.On 9 June 2021, District Court Judge Dufton dealt with two separate cases. The first was DCCC 562/2020, in which Shehbaz was charged with a single offence of burglary. He pleaded guilty to the offence and was sentenced to 2 years and 4 months’ imprisonment. The second was DCCC 828/2020, in which Wong was variously charged with handling stolen goods (Charge 1), obtaining property by deception (Charge 3), and attempting to obtain property by deception (Charge 4), and Shehbaz was charged with a single offence of handling stolen goods (Charge 2). They pleaded guilty to the charges they faced and Wong was sentenced to a total of 2 years and 4 months’ imprisonment, and Shehbaz to 20 months’ imprisonment, 8 months of which was ordered to be served consecutively to his sentence of 2 years and 4 months’ imprisonment in DCCC 562/2020.

CACC 133/2021

3.In DCCC 562/2020, Shehbaz admitted to having committed a burglary late in the evening on 31 January 2020 of residential premises while the female occupant was asleep. He ransacked her home stealing various sums of cash, a pair of earrings and the occupant’s Hong Kong identity card. The judge adopted a starting point of 3 years’ imprisonment which he enhanced by 6 months for the aggravating factors that the offence was committed on domestic premises in the early hours of the morning when the victim was at home; the applicant was a repeat offender with prior convictions for theft and burglary; and the applicant was a Form 8 recognizance holder at the time of the offence.

4.No criticism can be made for the sentence imposed by the judge. It follows the sentencing guidelines laid out in HKSAR v Lau Pang [2004] 3 HKLRD 565, and the enhancements were completely justified and consistent with relevant sentencing principles. It is to be noted that Shehbaz committed the present offence on 31 January 2020, having been released from prison on 17 August 2019 after serving a prison sentence of 12 months for burglary.

5.In his Form XI, Shehbaz complained that his sentence was manifestly excessive when compared with another burglary case that was mentioned to him by another inmate. However, the case citation did not correspond with a burglary case.

6.At the leave hearing, when Shehbaz was asked why the sentence imposed on him was wrong, he said that cases of this type receive a starting point of 36 months imprisonment and requested if he could be given a reduction in sentence. When further queried about why the sentence was wrong, he said that he wished to withdraw his application.

7.Shehbaz complains about the starting point adopted by the judge but there is no substance to his complaint. His application for leave to appeal against his sentence is refused.

CACC 131/2021

8.In DCCC 828/2020, the facts agreed by both Wong and Shehbaz were as follows. As a result of a burglary of domestic premises on 20 April 2020 various items in the value of about $18,000 were stolen, including five credit cards and an identity document. On the same day, Wong was intercepted by police having made a transaction using one of the stolen credit cards to purchase two phones for about $25,000, and an unsuccessful transaction with another of the stolen credit cards to purchase merchandise worth about $12,500. The five credit cards and an identity document that were stolen in the burglary were found on Wong who claimed under caution that he had been asked by a South Asian male if he wanted to make quick cash. He was then given the credit cards to purchase items, for which he would receive a reward of 10%. Shehbaz was intercepted by police shortly after in the vicinity carrying a rucksack that had been stolen in the burglary, which contained most of the stolen items. He claimed he had picked up the stolen items in Sham Shui Po.

9.The judge adopted a starting point of 2 years’ imprisonment on Charge 1 which he reduced by one third for Wong’s guilty plea to 1 year and 4 months’ imprisonment. He adopted a starting point of 3 years’ imprisonment for each of Charges 3 and 4, which he reduced by one third for Wong’s guilty plea to 2 years’ imprisonment respectively. After taking into account the totality principle, the judge determined that a sentence of 2 years and 4 months’ imprisonment properly reflected Wong’s criminality and culpability in the present case. He ordered that the sentences on Charges 3 and 4 be served concurrently but 4 months of the sentence on Charge 1 to be served consecutively to concurrent sentences on Charges 3 and 4.

10.In addressing the sentence of Shehbaz, the judge during mitigation rejected the assertion that he had picked up the items in Sham Shui Po. However, Shehbaz, through his counsel, indicated that he did not wish to give evidence as to how he had come into possession of the stolen goods. The judge adopted a starting point of 2 years’ imprisonment, which he enhanced by 6 months for the fact that he was a persistent offender, that he committed the offence whilst on bail for another case, and that he was a Form 8 recognizance holder at the time of the offence. After giving a discount of one third for his guilty plea, the judge sentenced him to 1 year and 8 months’ imprisonment.

11.In light of the sentence the judge imposed on Shehbaz, in DCCC 562/2020, of 2 years and 4 months’ imprisonment, he further applied the totality principle and ordered 8 months of the sentence in the present case to be served consecutively to that sentence, arriving at a final sentence of 3 years’ imprisonment for both cases.

12.In his Form XI, Wong complained that his sentence was manifestly excessive without providing any particulars. Nor did he file any grounds of appeal to support his contention that the sentence imposed on him was manifestly excessive. At the leave hearing, he said that his counsel told him that the sentence was manifestly excessive but he did not know why that was so. He then acknowledged that he had no basis to complain about the sentence and wished to withdraw his application.

13.There is no substance whatsoever in his complaint about his sentence. Whilst there are no guidelines for handling stolen goods, much depends upon the particular facts and circumstances of the case, including the nature and value of the items stolen and the close proximity of the handler to the primary offence, which in the present case concerned stolen goods that were the proceeds of a domestic burglary: R v Bernard Webbe [2002] 1 Cr App (S) 22 at 82, as applied in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360, at [55]-[58]. The judge noted in particular that Wong was using stolen credit cards, and if not for the interception of the police would have carried on using them. The judge adopted the appropriate starting points in respect of the charges and considered the separate criminality involved which was reflected in partly consecutive sentences. The judge’s approach in sentencing Wong cannot be criticised.

14.At the leave hearing, when Shehbaz was asked on what basis he was seeking to appeal his sentence, he said that he was satisfied with the sentence and wished to withdraw his application. He said he intended to withdraw the application earlier but was told by a fellow inmate to go to the hearing.

15.As already noted, there were additional aggravating factors that warranted enhancement to Shehbaz’s sentence. He has no cause for complaint for the sentence that he received, given the aggravating factors that were present in this case and the downward adjustment he received from the judge because of the totality of the sentences in the two cases.

16.The applications by Wong and Shehbaz for leave to appeal against their sentences are refused.

Loss of time

17.In CACC 131/2021, on 23 June 2021 Wong filed a notice for leave to appeal against sentence (Form XI) dated 16 June 2021, and on 24 June 2021 Shehbaz filed a notice for leave to appeal against sentence (Form XI) dated 22 June 2021. Wong stated in his notice that after “detailed and thorough consideration” he decided to apply for leave to appeal his sentence, adding that he understood that the application may attract an enhancement, reduction or affirmation of the sentence originally imposed or an order of loss of time against him. Shehbaz stated he applied to appeal his sentence and he understood that it may result in an increase in sentence.

18.In CACC 133/2021, on 24 June 2021 Shehbaz filed a notice of application for leave to appeal against sentence (Form XI) dated 22 June 2021. He made exactly the same statement in that notice as he did in CACC 131/2021.

19.No effort was made by either of them in their respective applications to explain why the relevant sentence was wrong. On 27 July 2021, legal aid was refused to both Wong and Shehbaz. On 19 August 2021, the court issued a set of directions in relation to their applications for leave to appeal, which included a direction that they file grounds of appeal and a written submission in support within 14 days of the date of the letter. The directions were also sent to the respondent, which included a direction that the respondent filed a written submission in reply together with an index and list of authorities within 28 days of the date of the letter. Neither Wong nor Shehbaz filed perfected grounds of appeal as directed. On 28 September 2021, the court received a letter from Shehbaz, in which he stated he was satisfied with the handling of stolen goods offence (DCCC 828/2020) but queried the sentence on the burglary offence (DCCC 562/2020). He asked if he could be given “a little bit less” on his sentence. He questioned why was his sentence was 28 months’ imprisonment on a starting point of 36 months after a discount of one third for his guilty plea. This ignored the enhancement of 6 months by the judge for the aggravating factors. He also compared his sentence with another case that he had been informed about by a fellow inmate who received a sentence of 36 months’ imprisonment for three burglaries.

20.On 17 September 2021, the respondent as directed filed very detailed written submissions in relation to the two sets of applications.

21.A convicted person has the right of appeal and that should not in any way, or, to any degree, be limited or restricted, except as the law provides. A loss of time order is a power available to an appellate court by the express provision under section 83W of the Criminal Procedure Ordinance, Cap 221, and when it is exercised the appellate court must state its reasons for doing so. Depriving a person of their liberty by a period of incarceration should only be done as prescribed by law and in accordance with relevant legal principles. It is not something that is done routinely by the courts, particularly when it arises as a form of punishment for failure to comply with the requirements of the court processes, or for unnecessarily and irresponsibly burdening the court processes which could have been better spent on other meritorious cases. See HKSAR v Kofi Frimpong, unrep., CACC 137/2020, 13 August 2021; HKSAR v Mwenkalley Salim Nassoro, unrep., CACC 87/2021, 30 September 2021.

22.As I stated in Mwenkalley Salim Nassoro, while a degree of latitude is given to applicants in person, if the application is patently devoid of merit or is frivolous, consideration will be given to a loss of time order. When an applicant embarks upon an appeal, he or she is initiating important court proceedings that should not be taken lightly and that is apparent from the procedural rules and forms that have to be completed and signed as the case progresses. Both applicants acknowledged in their respective Form XI that they could have their sentence increased by way of loss of time, so they have no excuse for not formally abandoning their respective applications. They took no positive steps to justify their applications, nor to terminate them when they realised they had no cause for complaint with the respective sentences.

23.The general sentiment that I wish to convey is that making an order of loss of time is an extreme measure which the appellate courts are reluctant to make but are sometimes obliged to do so in certain circumstances. Appeals that are being pursued when there is clearly no merit to them and an obvious exercise of futility must be discouraged as they severely undermine the criminal justice system by the wasteful use of valuable court resources.

24.There is one area of reform that I wish to recommend. The current Form XI sets out three notes which includes notification of the court’s power to order loss of time. I think there should be an additional note that informs applicants that if they do not wish to proceed with their application they should file a notice of abandonment in accordance with Rule 39 of the Criminal Appeal Rules (Cap 221 sub. leg. A), and in failing to do so they run the risk of having a loss of time order made against them.

25.Both applicants are reminded that if they wish to renew their respective applications for leave to appeal against sentence to the Court of Appeal, they must do so within 14 days. They are also informed that the Court of Appeal has power to make a further order for loss of any time which they have spent in custody pending their appeal, if the Court were to come to the view that there was no justification for the renewal of their respective applications.

Ms Audrey Parwani, SPP, of the Department of Justice, for the respondent in both CACC 131/2021 and CACC 133/2021

The 1^st and 2^nd applicants in CACC 131/2021 appear in person

The applicant in CACC 133/2021 appears in person