HKSAR v. Wong Kwok Leung

CACC 198/2023, [2025] HKCA 450

On Appeal From [2023] HKDC 1540

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 198 OF 2023

(ON APPEAL FROM DCCC NO 1120 OF 2022)

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Before: Hon Macrae VP and Zervos JA in Court

Date of Hearing: 9 May 2025

Date of Judgment: 9 May 2025

Date of Reasons for Judgment: 15 May 2025

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REASONS FOR JUDGMENT

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Hon Macrae VP (giving the Reasons for Judgment of the Court):

1.On 26 October 2023, the appellant pleaded guilty before Deputy Judge Bernard Chung (“the judge”) in the District Court to six charges, namely:

(i)  Theft, contrary to section 9 of the Theft Ordinance, Cap 210 (“Charge 1”);

(ii)  Burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance (“Charges 2 and 3”);

(iii)  Attempted burglary, contrary to section 11(1)(a) and (4) of the Theft Ordinance and section 159G of the Crimes Ordinance, Cap 200 (“Charge 4”);

(iv)  Using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (“the MVIO”) (“Charge 5”); and

(v)  Driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap 374 (“the RTO”) (“Charge 6”).

(Charges 1, 5 and 6 were categorised and referred to by the judge as “Group 1” offences, and Charges 2, 3 and 4 as “Group 2” offences[1].)

2.On the same day, having sentenced the appellant to an overall term of 4 years’ imprisonment (which is not the subject of specific complaint before us), the judge disqualified him from driving for a period of 2 years (from the date of conviction) in respect of Charge 5 and for a further period of 4 years (from the date of the conclusion of his term of imprisonment) in respect of Charge 6, whilst also ordering him to attend and complete a driving improvement course at his own expense within 3 months of the conclusion of the last disqualification period.

3.By way of a Form XI Notice filed on 3 November 2023, the appellant applied for leave to appeal against the disqualification order of 4 years imposed on him in respect of Charge 6 only, on the basis that the order was without jurisdiction. Leave to appeal was granted by the Single Judge[2] on 10 December 2024.

4.The respondent, represented by Mr Fergus Chau on behalf of the Department of Justice, has conceded both at the leave hearing and before this Court that the judge had, in the particular circumstances, no jurisdiction to make the disqualification order run from the date of the appellant’s discharge from custody, but only from the date of his conviction. To that extent, the sentence was wrong in principle and he accordingly invited the Court to sentence afresh by substituting a different order for the disqualification period.

5.Mr Jonathan Lin, together with Mr Truman Stormgen, for the appellant have not sought to go further than to ask this Court to substitute a disqualification period in respect of Charge 6 that is in accordance with law, recognising that it was the judge’s intention to ensure that the appellant remains disqualified when he emerges from prison but urging that it should be for a period that is shorter than 4 years from the date of his discharge.

Facts admitted by the appellant

6.On a day between 31 July and 6 August 2022, the appellant stole a private vehicle with registration mark SU7226 (“the vehicle”), which had been parked by its owner on an unnamed road in Pok Fu Lam, Hong Kong (Charge 1).

7.On 4, 7 and 14 August 2022, the appellant, together with other persons[3], burgled two companies which had premises situated in Kwun Tong and Kowloon Bay in Kowloon (Charges 2 and 3) and attempted to burgle the premises of another company situated in Kwun Tong (Charge 4).

8.At around 1:20 pm on 15 August 2022, the appellant was intercepted by police when alighting from the vehicle, having entered a carpark in To Kwa Wan, Kowloon. The original lock cylinder of the vehicle and some paraphernalia used in the commission of Charges 2 to 4 were found inside the vehicle.

9.Upon his arrest, and in a subsequent video recorded interview under caution, the appellant admitted, inter alia, that between 6 and 15 August 2022, he had stolen the vehicle and driven it when he was disqualified from driving[4] (Charge 6) and without third party insurance (Charges 5); and further, that he had used the vehicle as a getaway car during the commission of Charge 4.

Appellant’s background and mitigation

10.The appellant was 39 years of age at the time of sentencing. He had worked as a part-time ceiling repair worker, earning about HK$45,000 per month, but was unemployed at the time of arrest. During his remand, he had obtained a scaffolding worker’s licence.

11.The appellant first acquired his driving licence in June 2018. Amongst his previous 16 convictions for vehicle-related offences[5], three were for driving whilst disqualified and four were for using a vehicle without third party insurance, for which disqualification orders were made on two occasions. On the first occasion on 2 May 2019, a disqualification order of 12 months’ duration was imposed on him (between 2 May 2019 and 1 May 2020, in respect of a charge of using a motor vehicle without third party insurance). During the disqualification period, he had committed several offences similar to the Group 1 offences in the present case, for which he was on 30 April 2021 sentenced to concurrent terms of 4 months’ imprisonment and made the subject of six disqualification orders – three for 12 months, in respect of three charges of driving whilst disqualified; and three for 2 years, in respect of three charges of using a motor vehicle without third party insurance – which were ordered to run concurrently from 30 April 2021 to 29 April 2023[6].

12.By reference to HKSAR v Yu Chi Chiu[7], defence counsel at trial (not Mr Lin or Mr Stormgen) submitted in mitigation that the appellant was “obsessed” with cars, and suggested that a period of no less than 3 years disqualification should be imposed under section 44(2)(b) of the RTO in respect of Charge 6 to run concurrently with the disqualification order under the provisions of the MVIO in Charge 5.

Reasons for sentence

13.We shall not elaborate upon the reasons for imposing the overall term of imprisonment of 4 years (based on a notional starting point of 6 years), since they were not the subject of complaint at this appeal. It may be noted, however, that the judge did not condescend into any reasons at all for making the disqualification orders he did. He merely declared as follows[8]:

“For Charge 5, I order that [the appellant] be disqualified from driving all classes of vehicle for 2 years, the disqualification period is to start to run from the date of his conviction. For Charge 6, he is disqualified from driving all classes of vehicle for 4 years. The disqualification period is to start to run after he has finished serving his terms of imprisonment. He must attend and complete a driving improvement course at his own cost within 3 months prior to the conclusion of the disqualification period before he could be allowed to apply for a driving licence.”

Ground of appeal against sentence

14.Mr Lin has advanced two arguments in support of the ground of appeal that the disqualification order of 4 years in respect of Charge 6 was wrong in principle and/or manifestly excessive, namely:

(i)  The judge erred in making a marked upward adjustment of 1 year over and above the statutory minimum period of 3 years under section 44(2)(b) of the RTO; and

(ii)  The judge was wrong to order that the disqualification period should commence only after the accompanying sentence of imprisonment had been served.

Mr Lin nevertheless recognised before us that if his second argument were correct (which Mr Chau had already conceded), then, in all the circumstances of the offence and the appellant’s bad criminal record, the disqualification period should be substantial but should not exceed 5 years from the date of conviction.

The respondent’s reply

15.Following his concession made in respect of the second of Mr Lin’s arguments, Mr Chau invited this Court to set aside the impugned order and sentence the appellant afresh[9] by imposing a sufficient period of disqualification to reflect the facts and the appellant’s criminal record for similar offences, and which should be longer than the overall concurrent imprisonment term of 4 years.

Discussion

16.There is no doubt that the judge was wrong in ordering the period of disqualification under Charge 6 to run from the completion of the appellant’s prison sentence. There is no such jurisdiction. The appellant was not convicted of a “relevant scheduled offence” under section 69A(1)(a) and (9) of the RTO, thus warranting the start of the disqualification period from the completion of his prison sentence under section 69A(2). We are therefore required to pass a proper sentence which conforms with the law.

17.We can certainly understand that the judge may well have wanted to keep the appellant off the road for a significant period, given the seriousness of the offence of driving whilst disqualified and his criminal record for like offences, contrary to section 44(1)(b) of the RTO. However, if we were to give effect to the judge’s intention in resentencing the appellant, we would have to impose a disqualification order of 8 years from the date of his conviction, so as to ensure that he is off the road not only for the time in which he is in prison but for 4 years thereafter. Alternatively, if one assumes that the appellant is entitled to a one-third remission of his sentence in accordance with Rule 69(1) and (2) of the Prison Rules, Cap 234A on the grounds of industry and good conduct, we would have to consider a disqualification period of 6 years and 8 months from the date of his conviction.

18.Either of these terms would, in our judgment, be too long. Nevertheless, the appellant does not appear to recognise the seriousness of driving whilst disqualified and thereby uninsured, is seemingly contemptuous of the road traffic laws and, in our view, deserves to be taken off the road for a significant period of time so as to afford some protection to the public. Doing our best to honour the judge’s intention, acknowledging the appellant’s appalling driving record for similar offences, but ensuring that the overall sentence is properly balanced and correct according to law, we consider that the period of disqualification on Charge 6 should be 5 years.

19.Accordingly, we allow the appeal to this extent: the period of disqualification under Charge 6 will be varied from 4 years from the completion of the appellant’s period of imprisonment, which we are currently informed will be 6 November 2025, to 5 years’ disqualification from the date of his conviction, namely 26 October 2023. The practical effect of our substituted order is that the appellant’s period of disqualification under Charge 6 is reduced by just over 1 year.

20.For the avoidance of doubt, this period of disqualification will run concurrently with the order of disqualification made under Charge 5. Furthermore, the requirement that the appellant shall attend and complete a driving improvement course at his own expense within 3 months of the conclusion of the disqualification period before he is able to apply for a driving licence shall remain intact.

Mr Fergus Chau SPP, of the Department of Justice, for the Respondent

Mr Jonathan Lin and Mr Truman Stormgen, instructed by Cheung & Liu, assigned by the Director of Legal Aid, for the Appellant