HKSAR v. Mukungu Collins Kityo and Another

Case No.CACC 164/2022[2023] HKCA 661

Court

Court of Appeal

Date05 Jun 2023

Judge—

Case Document

100%Judiciary

CACC 164/2022 [2023] HKCA 661

On appeal from [2022] HKDC 1073 and

[2022] HKDC 1088

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 164 OF 2022

(ON APPEAL FROM DCCC NO 325 OF 2021)

_______________

	HKSAR	Respondent
	v
	Mukungu Collins Kityo	1st Applicant
	Jemba Sami	2nd Applicant

_______________

Before:

Hon Zervos JA in Court

Date of Hearings:	30 May and 5 June 2023
Date of Judgment:	5 June 2023
Date of Reasons for Judgment:	9 June 2023

__________________________________

REASONS FOR JUDGMENT

__________________________________

1.The 1^st applicant and 2^nd applicant, who were D1 and D2 respectively at trial, appeared before District Court Judge Isaac Tam (the judge) jointly charged with theft of a motorcycle (Charge 1) and going equipped for stealing (Charge 4). D1 faced additional charges of dangerous driving (Charge 2), using a motor vehicle without third-party insurance (Charge 3) and two offences of forgery of a document (Charge 5 and 6).

2.D1 pleaded guilty to all the charges that he faced, while D2 contested the charges against him and proceeded to trial. At the conclusion of the trial, D2 was convicted of Charge 1 but acquitted of Charge 4. The judge sentenced D1 to 2 years and 10 months’ imprisonment and D2 to 2 years and 11 months’ imprisonment.

3.D1 applied for leave to appeal against his sentence and was represented by Mr James McGowan in the leave hearing. While D2 applied for leave to appeal against his conviction and sentence and was represented by Ms Patricia E. Alva, who also appeared on his behalf at trial.

4.At the last leave hearing, I refused D1 leave to appeal against sentence and D2 leave to appeal against conviction and sentence. I said I would hand down my reasons for doing so in due course and this I now do.

The brief facts

5.The brief facts of the case were as follows. At about 3:47 am on 28 November 2020, a police officer observed a black 7-seater motor vehicle stop near a motorcycle parked in Reclamation Street, Mong Kok. D1 and D2 alighted from the vehicle and loaded the motorcycle into the vehicle. The motorcycle did not belong to D1 or D2. The registered owner was Wu Chuan Yi (Wu) (Charge 1). The vehicle, driven by D1, then left and was pursued by police officers in a police vehicle. At about 4:04 am, the vehicle stopped at a set of traffic lights on Lai Chi Kok Road. Meanwhile, other police officers in a police van were alerted of the pursuit stopped in front of it, but the vehicle collided with the police van along its side (Charge 2). D1 and D2 tried to flee but were subdued by the police officers and arrested. At the time of the arrest, D2 was wearing gloves. A search of the vehicle, recovered two pairs of cutting pliers and two pairs of gloves (Charge 4). D1 admitted that these items were to be used for stealing. The front of the vehicle had a false number plate (Charge 5), as did the back, but with a different false number (Charge 6). D1 admitted that he used the false number plates with the intent to deceive. The vehicle was not covered by third-party insurance at the time of the offence (Charge 3).

The trial of D2

6.At trial, D2 applied to stay the proceedings on the ground that Wu, the registered owner of the motorcycle, was not called to give evidence for the prosecution because he could not be located. The defence argued that the failure to call Wu rendered the trial unfair and amounted to an abuse of process. The defence claimed that there was a real possibility that Wu had abandoned his motorcycle, and his absence from the trial meant that the defence could not cross-examine him on this issue. Wu had given a witness statement to the police on 2 December 2020 in which he had identified the motorcycle as his own. He stated he purchased a Hartford VI motorcycle for $15,000 in mid-June 2019. He had two keys for the motorcycle. He usually parked the motorcycle in the vicinity of his residence in Tseung Kwan O. However, in December 2019, he got very drunk and forgot where he had parked the motorcycle in the localities of Mong Kok and Yau Ma Tei. In July 2020, he received a fixed penalty for the motorcycle, which he paid. He intended to inquire about the motorcycle’s location but was busy with work. He stated, “I recognised and confirmed that the motorcycle is my VI”. The judge concluded that the defence could not show that Wu would give evidence to assist the defence and rejected the stay application.

7.D2 testified in his defence. He said he met D1 by chance that evening and they walked together while he was looking for clothes. D1 offered him a lift, which he accepted. D1 drove the vehicle stopping at various locations, and on the last occasion, D1 got out and spoke to a Chinese male. When D1 returned, he asked D2 to help him lift a motorcycle and gave him a pair of gloves. He did as requested. He said the motorcycle was old and dirty, with broken parts, and neither covered nor chained. He asked D1 about the motorcycle, who told him the Chinese male had given it to him. He did not remove the gloves because D1 had told him to help load the motorcycle. He said that when the police vehicle came in front of the vehicle, D1 fled, and he followed him out of panic.

8.According to D2, he believed the motorcycle had been given to D1 by the Chinese male to whom D1 had spoken earlier. In other words, it was not D2’s case that he believed the motorcycle was abandoned and therefore took it.

The conviction of D2

9.On 27 September 2022, the judge gave a lengthy set of reasons for convicting D2 of charge 1 and acquitting him of Charge 4.

10.The judge acquitted D2 of Charge 4 basically because the 7-seater motor vehicle belonged to D1, and D2 had been on board for only an hour or so when arrested for the offence under Charge 1. There was also no evidence that D2 had contact with the items.

11.In addressing Charge 1, the judge, after an extensive summary of the evidence of the police officers and D2, identified the following issues in dispute that he had to resolve: (a) whether there was a possibility that the motorcycle had been abandoned by its owner; (b) to a lesser extent, whether there was a possibility that D2 believed that the motorcycle had been abandoned; (c) whether D2 had the mens rea to steal the motorcycle; and (d) did D2 flee from the police because he knew he had committed theft.

12.The judge did not find D2 to be a credible witness and rejected his explanations for taking the motorcycle and fleeing from the police. He noted that a certificate from the Transport Department confirmed that the registered owner of the motorcycle was Wu and he rejected the contention that Wu had abandoned it. He also pointed out that there was no evidence that D2 believed the motorcycle had been abandoned as he had testified that he believed the motorcycle had been given to D1. He found that D1 and D2 carried out the theft in the early hours of the morning when there were few people around. The 7-seater motor vehicle had a large rear compartment which could store items and was used to load the motorcycle. He found that D2 was a knowing participant in the crime. D2, wearing gloves when he was arrested, was far away from his home and travelled on the 7-seater motor vehicle to the scene to help upload the motorcycle into it. He found that the D2 had run away from the police and struggled with them to evade arrest for a crime he knew he had committed[1].

The sentencing of D1 and D2

13.The judge imposed the following sentences on receiving mitigation from counsel for D1 and D2.

14.As for Charge 1, the judge adopted a starting point of 2 years and 6 months’ imprisonment, which he increased to 2 years and 9 months’ imprisonment for the aggravating factor that it was a joint enterprise. He further increased the starting point by 3 months to 3 years’ imprisonment for the aggravating factor that both D1 and D2 were Form 8 recognizance holders at the time of the offence. The judge reduced D1’s sentence by one third for his guilty plea to 2 years’ imprisonment and D2’s sentence by one month for his previous clear record to 2 years and 11 months’ imprisonment.

15.As for the remaining charges against D1, the judge sentenced him as follows. Of Charge 2, he adopted a starting point of 9 months’ imprisonment, which he did not enhance for the aggravating factor of D1’s immigration status. The sentence was reduced to 6 months’ imprisonment for D1’s guilty plea. He further imposed a driving disqualification period of 6 months and attendance at a driving improvement course. Of Charge 3, he adopted a starting point of 6 months’ imprisonment, which he again did not enhance for the aggravating factor of D1’s immigration status. The sentence was reduced to 4 months’ imprisonment for D1’s guilty plea. He further ordered a driving disqualification period of 12 months. Of Charge 4, he adopted a starting point of 12 months’ imprisonment, which he enhanced for the dual aggravating factors of joint enterprise and D1’s immigration status by 3 months to 15 months’ imprisonment. The sentence was reduced to 10 months’ imprisonment for D1’s guilty plea. Of Charges 5 and 6, he adopted a starting point of 6 months’ imprisonment for each charge, which he again did not enhance for D1’s immigration status. The sentences for each charge was reduced to 4 months’ imprisonment for D1’s guilty plea.

16.The judge ordered that the sentences on Charges 5 and 6 be served concurrently and 2 months of the concurrent sentence be served consecutively to the sentence of Charge 3, thus resulting in a sentence of 6 months’ imprisonment for those charges. He also ordered that 3 months of the sentence on Charge 2 and 4 months of the sentence on Charge 4 run consecutively to the sentence on Charge 1, thus resulting in a sentence of 2 years and 7 months’ imprisonment for those charges. He finally ordered that 3 months of the sentence of the first group of charges he served consecutively to the sentence of the second group, making an aggregate sentence of 2 years and 10 months’ imprisonment. He ordered that the disqualification orders be served concurrently and that D1 attend a driving improvement course within 3 months after completion of his overall imprisonment sentence.

The leave application of D1

17.Mr McGowan advanced the following five grounds of appeal against D1’s sentence.

18.Ground 1 averred that the judge erred in adopting a starting point of 2 years and 6 months’ imprisonment for Charge 1. A starting point of 3 years’ imprisonment for the theft of a motor vehicle was usually considered an appropriate level of punishment and therefore could not be said to be manifestly excessive: HKSAR v Yu Chi Chiu[2] and HKSAR v Muhammad Waqas[3]. This level of sentence was acknowledged by D1’s counsel in mitigation before the judge[4]. A sentencing court would consider the value of the vehicle, the facts in which it was stolen, the damage caused to the vehicle and the nuisance to the owner. It appears the judge considered these matters in reducing the starting point by 6 months. This offence occurred in the early hours of the morning, and D1 and D2 were clearly intending to locate items to steal and load in the 7-seater motor vehicle. The starting point was high but the criminality involved warranted a severe sentence in the circumstances. I was not persuaded that the starting point was manifestly excessive and therefore did not consider this ground to be reasonably arguable.

19.Ground 2 averred that the judge erred in adopting a starting point of 9 months’ imprisonment for Charge 2. The collision by a private vehicle into a pursuing police van is a grave matter. The point of collision was the left side of the police van from where the officers were about to alight. There was a real likelihood of potential injury to the officers inside or about to alight from the police vehicle. A starting point of 9 months’ imprisonment was not excessive in the circumstances. This ground of appeal was not reasonably arguable.

20.Ground 3 complained that the judge erred in treating Charges 4, 5, and 6 as separate offences when they were part and parcel of Charge 1. Charge 1 related to the actual theft of the motorcycle, Charge 4 related to the equipment found in the 7-seater motor vehicle, which D1 admitted were for stealing, and Charges 5 and 6 related to the vehicle plates, which D1 admitted were false. It was correct for the judge to treat these charges as separate offences, and in doing so he appropriately calibrated the sentences of each offence to arrive at an overall sentence for the total criminality involved. The question was whether the ultimate sentence was proper for the offences for which D1 was found guilty, and in my view it was. See HKSAR v Nguyen Thu Ha[5].

21.Ground 4 complained that the judge erred in enhancing the sentences on Charges 1 and 4 for D1’s immigration status. It was complained that D1’s status as a Form 8 recognizance holder had been counted twice in the two sentences passed upon for these charges. Charges 1 and 4 were two separate offences, and D1’s immigration status had aggravated the crime committed under each charge and therefore was not counted twice: HKSAR v Sahil Kumar[6]. It was an aggravating factor in these two offences and was correctly taken into account. This ground of appeal was not reasonably arguable.

22.Ground 5 contended that the overall sentence of 2 years and 10 months’ imprisonment was manifestly excessive and wrong in principle. As already noted, the ultimate sentence for the crimes D1 admitted he committed was proper, and this ground of appeal was not reasonably arguable.

23.D1, a Form 8 recognizance holder, admitted that he was driving an uninsured vehicle in the early hours of the morning equipped with items to steal property. The number plates of the vehicle were false to avoid detection. He was pursued by a police vehicle and a police van. He collided with the police van, which was in front of him, to hinder and prevent his arrest after stealing a motorcycle belonging to another. He tried to flee but was foiled in his attempt by the pursuing police officers. In these circumstances, it cannot be said that the ultimate sentence of 2 years and 10 months’ imprisonment after pleas of guilty was manifestly excessive or wrong in principle.

The leave application of D2

24.Ms Alva advanced grounds of appeal against conviction, which can be distilled as follows: the judge wrongly refused a stay of proceedings (i) due to the unwillingness of the owner of the motorcycle to testify as a prosecution witness and without properly mitigating the lack of evidence from him (Ground 1); and (ii) by speculating about the owner’s unwillingness to give evidence (Ground 2). The judge did not properly evaluate the evidence and consider that the motorcycle had been abandoned and could not make an irresistible inference in the circumstances of the case (Grounds 3, 4, 5, 6, and 7).

25.These grounds can be dealt with together because they all concerned the absence of evidence from the motorcycle owner. It is appropriate to set out several relevant principles regarding an application for a stay of proceedings on the basis of a missing witness. In such an application, the accused has the burden of showing on a balance of probability that the trial is so prejudiced by the missing witness that no fair trial could be held: R v Holgate (No 1)[7]. In assessing the importance of a missing witness, it is necessary for the court to consider all evidence relevant to the issue, including any statement made by a witness. The evidence that a missing witness is expected to give need not be determinative of the issues of the case but must, in a material way, assist the accused. Therefore, the absence of such evidence would result in unfairness at trial: HKSAR v Chan Kong On[8].

26.In Holgate (No 1), the Court of Appeal held that the witness’s absence had not prejudiced the applicant to the extent that no fair trial could be held. The Court observed that this was especially so when the trial was by judge alone, who would ensure that the applicant had a fair trial despite the absence and potential importance of the witness. The Court went on to note that there was nothing in the reasons for verdict which indicated that the trial judge considered the extent to which the applicant might have been handicapped by the absence of the witness at the trial. It was held that the trial judge should have directed his mind as to how the unavailability of the absent witness affected the issues he had to decide, adding that there should have been given some indication in his reasons for verdict reference to the absence of the witness and its possible effect on the case[9].

27.In his reasons for verdict, the judge correctly explained that in addressing the stay application he had to consider the extent to which the absent witness might support the defence case. He set out in detail Wu’s statement to the police and, in his analysis, concluded that the defence had not successfully shown that what Wu would say would likely assist their case. He also reminded the defence that it was open to them to adduce Wu’s statement pursuant to section 65B of the Criminal Procedure Ordinance, Cap 221, and that the burden of proof would be different at trial. The judge’s analysis was set out in the following passage in his reasons for verdict[10].

“PROCEDURAL HISTORY

58.  Before trial proper, defence applied for a permanent stay of proceedings (regarding Charge 1) on the basis of a missing witness namely Wu Chuanyi who was the registered owner of the motorcycle subject of Charge 1. The defence submitted that no fair trial would be possible and continuing the prosecution would amount to an abuse of process. The defence acknowledged that the burden is on the defence to show on a balance of probabilities that no fair trial can be held. The defence wanted to cross-examine Wu because there was a real possibility that Wu had abandoned his motorcycle rendering the theft charge untenable.

59.  Prosecution accepted that it has been unable to locate Wu despite the best efforts of the police. Prosecution even accepted that Wu deliberately avoided the police’s attempts to locate him. Upon enquiry, prosecution informed me that witness summons had been taken out but could not be served on Wu.

60.  Prosecution opposed the application. Prosecution submitted that if necessary, the court could give itself directions on the evidence adduced and the absence of other possible evidence, and remind itself of the handicap and impact suffered by D2 in running his defence of abandonment due to Wu’s absence so as to avoid unfairness. Prosecution also submitted that remedial steps could be taken such as the production of Wu’s witness statement in the trial under section 65B of the Criminal Procedure Ordinance, Cap 221.

61.  I have considered the written submissions from both sides supplemented by their oral submissions.

62.  I have reminded myself of Archbold Hong Kong 2022 para 4-56 which deals specifically with the topic of ‘Missing witness/exhibits’.

63.  The issue seems to be whether it can be said that there is some basis to show what the witness would say and how it would be likely to assist the defence case. In short, the court should consider the extent to which the absent witness might support the defence case.

64.  To this end, I have asked for the witness statement of Wu in order to evaluate what possible evidence Wu could give to assist the defence to run the defence of abandonment. Wu gave a statement in Sham Shui Po Police Station 2 December 2020 ie only a few days after the alleged offence. In it, Mr Wu said:-

(a)  He was a construction site worker;

(b)  In early June 2019, he applied for a temporary driving licence for driving a motorcycle which would be valid for one year;

(c)  In mid-June 2019, he bought the subject motorcycle second-hand with its vehicle licence which would be valid until February 2020;

(d)  In October 2019, he failed his driving test so he drove less;

(e)  He continued to keep his vehicle keys;

(f)  In December 2019, he parked the motorcycle somewhere in the vicinity of Mong Kok and Yau Ma Tei; however being affected by alcohol, he could not remember the exact location and he could not find it;

(g)  Being too busy at work, he did not re-appy for a driving test for the purpose of obtaining a driving licence and he did not proactively look for the motorcycle and forgot to follow up the matter regarding the missing motorcycle;

(h)  When he last saw the motorcycle, the rear number plate and vehicle licence were still on;

(i)  In February 2020, he did not renew the vehicle licence because he was too busy at work;

(j)  In June 2020, his temporary driving licence also expired and he did not renew it;

(k)  In July 2020, he received a fixed penalty ticket regarding the motorcycle; he paid the penalty but because he was too busy at work, he did not follow up the matter of why and how; and

(l)  On 2 December 2020, he went to the Sham Shui Po Police Station and identified the motorcycle as his own, but the rear number plate and vehicle licence were missing; otherwise the rest was all normal and nothing different.

65.  In his witness statement, I note Mr Wu said he had kept the keys to the motorcycle; that he parked the motorcycle in the vicinity of Mong Kok and Yau Ma Tei, which of course included Reclamation Street; that he paid the fixed penalty even as late as July 2020, 7 months since he last saw his motorcycle; that he gave explanations for his various inactions regarding the motorcycle but they were not related to abandonment.

66.  Bearing in mind the burden was on the defence albeit on a lower standard of proof, I do not find that the defence has successfully shown what Mr Wu would say would likely assist the defence case.

67.  Therefore, I refused the defence’s application to stay the proceedings permanently in relation to Charge 1. I reminded parties that the photos which I have seen and the contents of the witness statement of Mr Wu which I have read will form no part of the case against D2 in the trial unless by some means they are adduced as evidence in the trial.

68.  During the application, I did remind the defence that it was open to it but it would be a matter for the defence whether to adduce Mr Wu’s statement under section 65B and that the burden and standard of proof would be different at trial.”

28.Later in his reasons for verdict, the judge addressed the issue of abandonment of the motorcycle and how Wu’s absence may have impacted on the defence case[11].

“ABANDONMENT AND THE BELIEF OF ABANDONMENT

140.  I note that the motorcycle was dusty and had some scratches on it and had no number plates at front or back. These pieces of information only shows that the motorcycle became out of use. A motorcycle per se is a valuable piece of property. This particular one was reasonably new at the time – it was manufactured in 2016 and the date of its first registration was 5 December 2017 (see P3). There is no clear evidence it had been abandoned by its owner. On the contrary, a closer examination of its photos (see P1(10-12)) shows its various parts were intact and it could be taken apart for sale of its parts. What’s more, P1(10) shows that the left side pedal has been tied by a red string which could be taken to mean that the owner did not want the motorcycle to be tampered with.

141.  Defence tried to make a point that since the owner Wu Chuanyi appears to have avoided the police’s attempts to locate him with a view to calling him as a witness, it must mean that he had abandoned the motorcycle at the time of the alleged offence. With respect to Ms Alva, I beg to disagree. The offence is said to have occurred on 28 November 2020. As I understand it, a witness statement has been taken from Wu. It was only many months after that the police wanted to locate him for court purposes. I do not think one could equate Wu’s attempts to evade the police for court purposes, if that be so, to an indication of an intention to abandon the motorcycle back at the end of November 2020.

142.  I alerted myself to the evidence adduced and the absence of other possible evidence which might assist the defence; and I reminded myself of any possible handicap and impact that might be suffered by D2 in running his defence of abandonment due to Wu’s absence. I concluded there is no unfairness to D2.

143.  Regarding the possibility of D2’s belief that the motorcycle had been abandoned, the simple fact is he never said so in evidence. There is therefore no evidence he held or possibly held that belief.”

29.It has been stated as a general principle that a person cannot be guilty of theft if the property in question has been abandoned. In R v Small [12], the English Court of Appeal, after a review of several authorities held that they gave rise to two propositions: “first, that one cannot steal abandoned property, and secondly, that an honest belief that property was abandoned is a defence.”[13] In the present case, there was no question of D2 believing the property was abandoned because his evidence was that D1 had told him that the property had been gifted to D1 by the Chinese male that D1 had previously spoken to that night. So it was only in respect of the first proposition that the absence of Wu’s was an issue at trial.

30.The essence of Ms Alva’s challenge against D2’s conviction for theft was that the judge wrongly refused the stay application. She contended that the judge did not properly assess the impact, quality and credibility of Wu’s potential evidence. She claimed that there remained a real possibility that Wu had abandoned his motorcycle.

31.Ms Alva revisited the evidence in some detail and was critical of the judge’s analysis and findings, emphasising her own interpretation of Wu’s statement, which the judge did not accept. I cannot agree with her submissions. The judge was clearly focused on whether Wu’s potential evidence was likely to assist the defence on the question of whether Wu had abandoned the motorcycle. It was open for the judge to find from an appraisal of Wu’s statement that there was no indication that he had abandoned the motorcycle. Wu confirmed he was the owner of the motorcycle and that it belonged to him. He had not indicated that he had relinquished his ownership of the motorcycle.

32.Since making his statement on 2 December 2020, it was accepted before the judge that Wu could not be found or did not want to be found for whatever reason. The police had made numerous attempts to contact him. This factor had been used by the defence to support their contention that Wu had abandoned the motorcycle. This argument was rejected by the judge who reasoned that Wu’s attempts to evade the police for court purposes could not be equated with an indication of an intention to abandon the motorcycle back at the end of November 2020[14]. It would appear that the prosecution in its submission to the judge on the stay application pointed out that remedial measures open to the Court were to grant an adjournment to conduct further attempts by the police to locate were or to direct itself on the evidence of the handicap and impact that might be suffered by D2 in running his defence due to Wu’s absence so as to avoid unfairness. It was noted that the option of an adjournment might be unviable given the long time lapse between the last trial and the upcoming trial and the previous unsuccessful attempts to locate Wu.

33.Central to Ms Alva’s complaint was that the defence was denied the opportunity to cross-examine Wu on whether he abandoned the motorcycle, but that issue had already been addressed in the judge’s ruling refusing the stay. When addressing the case’s procedural history, the judge discussed the stay application, providing a detailed analysis of Wu’s statement and the impact, if any, on the case because Wu not giving evidence[15]. He set out his reasons for refusing the stay application. Ms Alva questioned the judge’s reasons for doing so, but they were open for him to make based on the evidence.

34.As noted, the judge also considered the question of abandonment and the belief of abandonment. He noted there was no clear evidence that the owner had abandoned the motorcycle. He further noted that there was no evidence from D2 that he held or possibly held the belief that the motorcycle had been abandoned. He specifically took into account and mitigated Wu’s absence as a witness. He explained in his reasons that he had reminded himself of any possible handicap and impact D2 might suffer in running his defence of abandonment due to Wu’s absence. He plainly had the principles enunciated in Holgate (No 1) in mind when he concluded that there was no unfairness to D2[16]. The judge’s reasoning on the subject of abandonment and belief of abandonment have to be read together with his reasoning on refusing the stay application, in which he discussed the potential impact of Wu’s likely evidence based on his statement and other matters[17].

35.I carefully considered Ms Alva’s submissions. However, I could not agree with her contention that it was not reasonable for the judge to conclude as he did on the question of abandonment. As noted by the judge, Wu was the registered owner of the motorcycle and he had paid a fixed penalty ticket in July 2020, about 4 months before D1 and D2 stole it in November 2020. Furthermore, it was D2’s defence that he had been told by D1 that the motorcycle had been given to D1 by a Chinese male that he had previously spoken to that night.

36.The matters complained about by Ms Alva were properly attended to by the judge, and hence, I was not satisfied that it was reasonably arguable that the judge had erred in approaching the issue of Wu’s absence as a witness. I, therefore, refused D2 leave to appeal against his conviction.

37.In the appeal against sentence, it was complained that the sentence was wrong in principle and manifestly excessive in the circumstances of the case. I have already addressed the question of the sentence the judge imposed on D1 for which D2 was a co-accused. The judge adopted a starting point of 2 years and 6 months’ imprisonment, which he enhanced by 3 months for the joint enterprise and a further 3 months for D2’s status as a Form 8 recognizance holder at the time of the offence. He reduced the notional sentence of 3 years’ imprisonment by one month for D2’s clear record to 2 years and 11 months’ imprisonment. I have previously mentioned that the starting point was high but given the criminality involved it warranted a severe sentence. Whilst the purchase price and value of the motorcycle were low, this was but one of various factors to be taken into account in assessing the criminality involved. This was a joint enterprise between D1 and D2 to steal in the middle of the night by using a vehicle that had a large compartment in which items could be stored. I did not consider in light of the overall circumstances of this case and the way it was perpetrated by D1 and D2 that the sentence was manifestly excessive or wrong in principle.

Conclusion

38.For the reasons I have given, I refused D1 leave to appeal against sentence and D2 leave to appeal against conviction and sentence.

39.The applicants are reminded of their right to renew their applications for leave to appeal to the Court of Appeal, but they are also informed of the consequences of doing so, which may include a further direction for any loss of time 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 application.