HKSAR v. Cheung Kwong Ki

CACC 123/2023 [2024] HKCA 162

On appeal from [2023] HKDC 408

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 123 OF 2023

(ON APPEAL FROM DCCC NO 547 OF 2022)

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REASONS FOR JUDGMENT

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1.On 9 March 2023, the applicant was convicted on his own plea before District Court Judge G Lam (the Judge) of nine traffic related offences involving the illegal use of a motor vehicle on two occasions. At the time of each occasion, the applicant was 16 years and 6 months and 16 years and 8 months respectively and did not hold a motor vehicle driving licence. The last occasion involved the applicant, whilst on police bail for the first occasion, driving a motor vehicle in extremely dangerous circumstances, breaching a police roadblock and evading a police pursuit. Taking into account that the applicant had spent 16 months on remand, the Judge sentenced the applicant to detention in a Training Centre.

2.On 26 June 2023, the applicant filed a notice of application for leave to appeal against sentence out of time.

3.On 16 February 2024, after receiving submissions from counsel, I refused the application for leave to appeal against sentence, and for an extension of time for so applying. I said I would hand down the reasons for my decision in due course. These are my reasons.

The agreed facts

4.The first occasion was late on the evening of 10 September 2021 when the applicant was intercepted for illegally using a motor vehicle. While the applicant’s friend was inebriated, he took his vehicle without his permission. He picked up a friend and was observed driving the vehicle in Shek Kip Mei by a female police officer, who intercepted him.

5.As a result, the applicant was charged and put on police bail for the offences of driving without a valid driving licence, contrary to s. 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (RTO) (Charge 7); using a motor vehicle without third-party insurance, contrary to s. 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (MVI) (Charge 8); and taking conveyance without authority, contrary to s. 14(1) of the Theft Ordinance, Cap 210 (TO) (Charge 9).

6.The second occasion was early in the morning of 14 November 2021. While on police bail for the previous infractions involving a motor vehicle, the applicant took another friend’s motor vehicle without his permission. He had three passengers with him in the vehicle. At about 4:00 am, he came to a police roadblock on Tsing Kwai Highway and ignored a police officer’s direction to stop. Two police vehicles immediately gave chase. He evaded the police pursuit over a distance of 42 kilometers, lasting about 20 minutes. He drove extremely dangerously, travelling at high speeds (at one stage exceeding 200 km/h), jumping multiple red lights (not less than 15 times), disobeying traffic signs and road markings, and aggressively preventing police vehicles from overtaking his vehicle. The police pursuit ended when the applicant crashed his vehicle through the barrier gate at an exit of Nan Fung Industrial City in Tuen Mun while travelling against the traffic. He reached an entrance of Nan Fung Industrial City and crashed through another barrier gate. He then abandoned the vehicle and fled. He was arrested and cautioned several hours later. He admitted that he stole the vehicle from his friend, who was drunk at the time. He boarded the vehicle with his friends at about 3:00 am and intended to go for a joy ride. He acknowledged he did not have a motor vehicle driving licence and was aware that the motor vehicle would not be covered by third-party insurance.

7.As a result, the applicant was charged with taking conveyance without authority, contrary to s. 14(1) of the TO (Charge 1); driving without a valid driving licence, contrary to s. 42(1) and(4) of the RTO (Charge 2); using a motor vehicle without third party insurance, contrary to s. 4(1) and(2)(a) of the MVI (Charge 3); dangerous driving, contrary to s. 37(1) of the RTO (Charge 4); failing to report an accident involving damage, contrary to s. 56(2A) and (6) of the RTO (Charge 5); and failing to stop after accident whereby damage was caused to other things, contrary to s. 56(1)(b) and (5) of the RTO (Charge 6).

The applicant’s mitigation

8.The applicant’s date of birth is 14 March 2005. At the time of the offences, on the first occasion, he was 16 years and 6 months, and on the second occasion, he was 16 years and 8 months.

9.Counsel representing the applicant gave a very detailed submission in mitigation. He emphasised that the applicant was a young offender who was of clear record. He noted that he had already served 16 months on remand. He examined the individual offences and the likely sentences for each one. He submitted that the dangerous driving was not the worst case of its kind compared with other cases and that the Judge should adopt a starting point of 24 months’ imprisonment, which would result in a sentence of 16 months’ imprisonment after a reduction of one third for the applicant’s guilty plea. However, he also submitted that if the Judge considered the additional term of imprisonment should be imposed it was within his discretion to make an order for Detention Centre or Training Centre in addition to the time already served in custody.

10.The Judge called for a Training Centre Suitability Report, which concluded that the applicant was suitable for detention in a Training Centre.

The reasons for sentence

11.After an extensive review of the facts and circumstances of the case, the Judge noted that the applicant was 16 years of age when he committed the offences and at the time of sentence, he had 9 days before turning 18 years of age. He also noted that he had a clear record.

12.The applicant had been remanded in jail custody for about 16 months since his arrest in November 2021. The Judge acknowledged that if he imposed a Training Centre Order, “his period of detention may well be longer than the actual time he would need to serve in prison if he was sentenced to imprisonment.” He said that he would bear this matter in mind when determining the appropriate punishment for the applicant. The Judge was obviously appalled by the applicant’s driving in the offences that he had committed, which could have resulted in far more serious consequences to person and property. However, he was acutely aware he was dealing with a young offender that was a relevant consideration in determining a just and appropriate punishment. He noted that the Training Centre Report was positive and explained that as a general principle, “rehabilitation (rather than punishment) plays an important role in reforming young offenders.”

13.In passing sentence, the Judge said, “I have borne in mind the fact that the defendant has been remanded in custody for 16 months and the likely prison term and offender over the age of 21 would get in the present case.” He noted that the period in a Training Centre ranges from 6 months to 3 years, and the applicant’s release will depend on his performance. He made a Training Centre Order in respect of all charges, emphasising that it will benefit the applicant “most in terms of disciplinary training, rehabilitation and punishment.”

The leave application out of time

14.The applicant filed his application for leave to appeal against sentence on 26 June 2023, which was out of time by about 9 weeks after the expiry of 28 days from the date of sentence on 23 March 2023. His explanation for the delay in filing his application is that he was under the mistaken belief that he satisfied the requirement by notifying the prison staff. Mr Beney Wong, for the respondent, submitted that the applicant’s explanation was not convincing and that in any event he had not shown any reasonable chance of success in his appeal against sentence.

15.Notwithstanding the delay in filing the leave application, I have looked at the merits of the application to ensure that I was not shutting out a meritorious ground of appeal.

16.Mr Randy Shek, for the applicant, advanced two grounds of appeal against sentence. Ground 1 complained that the sentence was manifestly excessive. Ground 2 averred that the Judge failed to adequately take into consideration the applicant’s pre-trial detention period.

17.Mr Shek argued that when taking into account the pre-trial detention of 16 months and the usual one third discount for remission and guilty plea, the applicant had served an equivalent sentence of 36 months’ imprisonment. He contended that the total period of pre-trial detention and detention at the Training Centre would be longer than a term of imprisonment for an adult offender for the same offences. He pointed out that the applicant would be subject to an indeterminate duration of detention at a Training Centre which was between 6 months and 3 years and this was unduly harsh for the applicant. He submitted that the proper sentence should have been a probation order.

18.Mr Shek questioned how a sentencing court should approach the sentencing of a young offender whose period of pre-trial detention is equal to, or exceeds, the term of imprisonment an adult would have received for the same offence. Allied to this submission is that a young offender should only be sentenced to a term of imprisonment as a last resort: s. 109A of the Criminal Procedure Ordinance, Cap 221. He argued that in normal circumstances in which an adult offender received a term of imprisonment for the offending perpetrated by the applicant, time spent on remand would be treated as reducing the sentence of imprisonment by the operation of s. 67A(1) of the Criminal Procedure Ordinance. He pointed out that the section only applies to “the length of any sentence of imprisonment”, and hence the applicant would not receive any credit or deduction for the period of remand from the time he will spend in a Training Centre. When a similar issue has arisen, the English courts have held that courts should bear in mind when deciding a proper length of sentence that allowance should be made for time spent on remand in custody prior to sentence. This anomaly had been considered in R v Fairhurst & Ors (1986) Cr App R (S) 346, 351; R v Secretary of State for the Home Department, ex parte A [2000] 2 AC 276.

19.There were two major obstacles to the argument advanced by Mr Shek. First, it presupposed that if the applicant had been punished by way of a term of imprisonment it would not have exceeded 3 years. Mr Shek focussed solely on the fact that the applicant had been charged with a single offence of dangerous driving for which he would have received a sentence close to the maximum of 3 years’ imprisonment. However, this ignored the other offences for which terms of imprisonment would also have been warranted for the offending involved, such as taking a conveyance without authority, which has a maximum sentence of 7 years’ imprisonment. The applicant admitted that he stole the motor vehicle on the second occasion. It also ignored that there were other factors that aggravated the applicant’s offending, such as that there were two sets of offences and that on the second occasion he was on bail for the first occasion and evading apprehension by the police. There is no doubt that the applicant’s offending on the second occasion was one of the worst cases of its kind, committed by an unlicensed young offender. His driving was extremely dangerous, putting at risk the lives of himself, his passengers, the general public and the police. There were clear and distinct episodes of dangerous driving on the second occasion that could have been the subject of separate offences. However, the overall dangerous driving was encapsulated in one offence. The applicant could very well have been sentenced to a term of imprisonment and one that exceeded 3 years.

20.Secondly, it failed to properly acknowledge that the Judge did conscientiously take into account that the applicant had spent 16 months in pre-trial detention in deciding the appropriateness of a Training Centre Order. Moreover, the applicant’s counsel urged the Judge to take into consideration as an appropriate form of punishment a Training Centre Order. I was informed that the applicant has spent nearly 1 year in the Training Centre and was likely to be discharged within 6 months. During this period of detention, the applicant had undertaken academic and vocational training.

21.I was unable to find fault with the Judge’s approach in sentencing the applicant in light of the grievous circumstances of the offending and the personal circumstances of the applicant. Whilst addressing very serious criminal misconduct, the Judge was also focused on the applicant’s rehabilitation, and that was plainly apparent from the Judge’s reasons for sentence. I was not persuaded that there is a reasonably arguable ground of appeal against sentence.

Conclusion

22.It was for these reasons that I refused the application for leave to appeal against sentence, and for an extension of time for so applying. The applicant was nevertheless informed of his right to renew his application for leave to appeal against his sentence out of time to the Court of Appeal, but he was also warned of the consequences of doing so, which could include a 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 his application.

Mr Beney Wong, SADPP, of Department of Justice, for the respondent

Mr Randy Shek, instructed by O Tse & Co, for the applicant