HKSAR v. Cheung Ka on

CACC 120 /2024, [2025] HKCA 567

On Appeal From [2024] HKDC 861

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 120 OF 2024

(ON APPEAL FROM DCCC NO 808 OF 2023)

________________________

________________________

________________________________________

REASONS FOR JUDGMENT

________________________________________

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

1.The appellant pleaded guilty in the District Court before HH Judge Tam (“the judge”) to five offences, as follows:

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

(ii)  Attempted theft, contrary to section 9 of the Theft Ordinance, and sections 159G and 159J of the Crimes Ordinance, Cap 200 (Charge 2);

(iii)  Driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (Charge 3);

(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 (Charge 4);

(v)  Failing to display a valid vehicle licence, contrary to regulation 25(1) and 60(3) of the Road Traffic (Registration and Licensing of Vehicles) Regulations, Cap 374E (Charge 5).

2.He was given an overall sentence of 4 years’ imprisonment and was disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 3 years from the date of conviction. He has appealed against the sentence of imprisonment, following the grant of leave to appeal by the Single Judge on 19 December 2024[1].

3.On 13 June 2025, after hearing from the parties, we dismissed the appeal and said we would hand down our reasons for so doing in due course. These are our reasons.

Facts admitted by the appellant

4.On 2 March 2023, at about 4:50 am, near lamp post FB2357, Public Motor Cycle Parking Space, Tin Yan Road in Tin Shui Wai, New Territories, the appellant was seen sitting on a stationary motorcycle bearing registration number TA4695 (“V1”). V1 had no vehicle licence displayed but its engine and headlight were on. The appellant was chatting with a female seated beside him on a separate motorcycle, also with the engine and headlight on. They were both wearing helmets and gloves and were looking around as they talked. Unknown to them, they were under observation by a patrolling police constable (“PW1”), whose suspicions were aroused by their behaviour at that time of night.

5.The appellant then alighted from V1 and walked towards a third motorcycle bearing registration number WB5717 (“V2”), which was parked nearby. The appellant lifted up the cover of V2 and, after examining the motorcycle for a while, took from his rucksack a screwdriver and began tampering with the part of V2 below the hand clutch and ignition switch.

6.PW1 went up to intercept the appellant. Upon a search of the appellant and his rucksack, PW1 found and seized 6 screwdrivers, 3 pairs of pliers, 4 drills, 3 spanners, 2 hexagonal keys and one pair of gloves (collectively referred to as “the tools”). It was then discovered that the appellant’s driving licence, which was in any event subject to a lengthy disqualification order made on 20 June 2018, was only valid for private cars and light goods vehicles. The appellant was accordingly arrested.

7.PW2 and PW3, the owners of V1 and V2 respectively, were located by police. PW2 had last parked V1 at Ma Sik Road in Sheung Shui, New Territories at 10:30 pm on 20 January 2023. At 6:30 am on 24 January 2023, she found her vehicle missing and reported the matter to the police. She was able to identify V1 by its chassis number, noting that V1 had been repainted from white to black; the windbreak had been changed from colourless to brown; the motorcycle case had been replaced; and two helmets (valued together at $600), which were normally kept inside the motorcycle case, as well as the motor vehicle licence, were missing. The third party risk insurance policy in respect of V1 did not cover the appellant.

8.PW3 reported that he had parked V2 at the scene of the arrest at 9 pm on 1 March 2023. The ignition switch of V2 had been damaged as a result of the appellant’s actions, resulting in subsequent repairs of $3,000.

9.Upon arrest, the appellant claimed under caution that he had stolen V1 from a fruit market at Yau Ma Tei, Kowloon two weeks before; the tools were used to dismantle motorcycle(s); he was intending to steal V2; he had driven V1 from Hung Fuk Estate, Hung Shui Kiu in Tin Shui Wai to the scene of his arrest; and his driving licence had been disqualified at the time.

10.In two video recorded interviews conducted on 3 March 2023, the appellant further stated under caution that he had stolen V1 from a parking space at Lai Cheung Road in Yau Ma Tei; he had then driven V1 from Kowloon to Hung Shui Kiu in Tin Shui Wai, at 11 pm on 1 March 2023 to meet a friend for night snacks; he had tampered with the ignition switch of V2; and he knew that his driving licence had been terminated.

11.The appellant admitted in court that between 20 January and 2 March 2023, he stole V1, one motorcycle case, two helmets, and one vehicle licence, all belonging to PW2.

Mitigation

12.At the time of sentencing, the appellant was 51 years of age, unmarried and residing in private accommodation in Kowloon. He was working as a construction worker at the time of his arrest. It was said on his behalf that V1 and V2 were not intended for resale but for his own use.

13.The appellant had 65 previous convictions, 45 of which were similar to the present offences (save and except the offence which is the subject of Charge 5). The appellant had a record of 15 road traffic convictions, which was simply a duplication of what was contained in his criminal record.

Sentence

14.In respect of Charge 1, the judge considered that, although “only one to two weeks have elapsed before recovery of V1” (sic), it was relevant that not only was the vehicle stolen together with various accessories, but the constituent parts had also been transformed or replaced. As for Charge 2, although the appellant was not successful in stealing V2, there was damage to the ignition switch requiring repairs of $3,000. For these reasons, in respect of Charge 1, the judge took a starting point of 3 years’ imprisonment; and for Charge 2, a starting point of 2 years and 9 months’ imprisonment. Given what he described as the appellant’s “awful record” for theft offences, the judge added 3 months to these starting points in order to enhance their deterrent effect.

15.In respect of Charge 3, the judge considered that the maximum penalty for a second or subsequent conviction was a fine of $10,000 and imprisonment for 6 months. Since it was the appellant’s eighth conviction for the same offence, the judge adopted 6 months’ imprisonment as the starting point. For Charge 4, the maximum penalty was a fine of $10,000 and imprisonment for 12 months. Since this was the appellant’s twelfth conviction for the same offence, the judge adopted 12 months’ imprisonment as the starting point. And for Charge 5, the maximum penalty was a fine of $2,000 and imprisonment for 3 months. Since the appellant had no previous similar convictions, the judge adopted 30 days’ imprisonment as the starting point.

16.The judge found that the appellant had pleaded guilty in good time, but there were no other mitigating factors which were capable of reducing his sentences further.

17.In respect of disqualification, the judge was mindful that only Charge 4 called for a mandatory order, unless special reasons existed[2]. The judge then relied on section 4(2)(a) of Cap 272 which called for a disqualification order with a maximum length of 3 years from the date of conviction. The judge could not find any special reasons for not ordering a disqualification order of the maximum length. Thus, under Charge 4, the judge ordered that the appellant be disqualified from holding or obtaining a driving licence, in respect of all classes of vehicle, for a period of 3 years from the date of conviction.

18.In terms of totality, the judge considered that Charges 1 and 2 related to wholly separate offences justifying consecutive sentences[3], while Charge 4 was a concomitant offence with Charge 3, for which concurrent sentences were appropriate. Charge 5 was separate and did not flow from the theft of V1 (Charge 1), given that V1 bore genuine registration plates, which made it easily identifiable as a stolen vehicle.

19.Accordingly, the judge passed the following sentences:

(i)  2 years and 2 months’ imprisonment (Charge 1);

(ii)  2 years’ imprisonment (Charge 2);

(iii)  4 months’ imprisonment (Charge 3);

(iv)  8 months’ imprisonment (Charge 4);

(v)  20 days’ imprisonment (Charge 5).

The judge then ordered the sentences on Charges 3 and 4 to run concurrently as between themselves, making 8 months’ imprisonment in all. Of this sentence, he ordered 2 months’ imprisonment to run consecutively to the sentence on Charge 2. Thus, the aggregate sentence of Charges 2, 3 and 4 became 2 years and 2 months’ imprisonment. The judge ordered this sentence to run wholly concurrently with the sentence on Charge 5, thus making an overall sentence of 2 years and 2 months’ imprisonment in respect of Charges 2, 3, 4 and 5. Finally, he ordered 1 year and 10 months of this sentence to run consecutively to the sentence of 2 years and 2 months’ imprisonment on Charge 1, making a total sentence of 4 years’ imprisonment.

Grounds of appeal against sentence

20.Four grounds of appeal against sentence have been advanced by Mr HY Wong, on behalf of the appellant, as follows:

(i)  The initial starting point of 3 years’ imprisonment for Charge 1 and 2 years and 9 months’ imprisonment for Charge 2 were in themselves manifestly excessive.

(ii)  When ordering 1 year and 10 months’ imprisonment of the sentence in relation to Charges 2, 3, 4 and 5 to run consecutively to Charge 1, the judge failed to take the overall totality adequately into account. The total sentence of 4 years’ imprisonment on a plea (the overall notional starting point after trial being 6 years’ imprisonment) was not commensurate with the level of criminality displayed.

(iii)  The enhancement in respect of the appellant’s criminal record for theft offences was applied to both Charges 1 and 2. However, since part of the sentence on Charges 2, 3, 4 and 5 was also made consecutive to the sentence on Charge 1, there was an element of “double-counting”. As a result of this double-counting, the consecutive element of the sentences for Charges 2, 3, 4 and 5 became manifestly excessive.

(iv)  Treating the grounds individually or cumulatively, the total sentence of 4 years imprisonment after timely pleas of guilty was manifestly excessive and/or wrong in principle.

Ground 1 (starting point of “vehicle theft”)

21.Ground 1 complains that the initial starting points of 3 years imprisonment for the theft charge (Charge 1), and 2 years and 9 months imprisonment for the attempted theft charge (Charge 2), were manifestly excessive. Mr Wong drew a distinction between the case of HKSAR v Yu Chi Chiu[4], concerning the theft of a light goods vehicle, where 3 years’ imprisonment was upheld as an appropriate starting point, and HKSAR v So Pak Lun[5], involving the theft of a motorcycle, where the Court said the starting point should have been 2 years’ imprisonment[6].

22.In response, Mr Alan Chan for the respondent submitted that the type of vehicle had no bearing on the starting point. Accordingly, the judge was correct not to depart from 3 years’ imprisonment as a starting point set by the Court of Appeal as a guideline in the case of Yu Chi Chiu[7]. He also drew our attention to the authority of HKSAR v Yu Shui Kin[8], where a sentence of 2 years and 6 months’ imprisonment, following an enhancement of 25% on account of the prevalence of the offence, was deemed to be appropriate on a timely plea of guilty for the offence of vehicle theft (a motorcycle in that case)[9].

23.Mr Chan pointed out that the theft in this case was not opportunistic because V1 was stolen together with some accessories and its constituent parts had then been transformed or replaced. These matters should have been reflected in the sentencing on Charge 1. Accordingly, the judge was correct not to depart from the 3 years’ imprisonment as a starting point and to add 3 months to the initial starting points of Charge 1 and 2 so as to increase their deterrent effect, given the appellant’s appalling criminal record of similar offences.

Ground 2 (totality principle)

24.It was submitted that the total sentence of 4 years’ imprisonment on a plea (the notional sentence after trial being 6 years’ imprisonment) was not commensurate with the level of criminality displayed. The appellant relied on the case of HKSAR v Leung King Cheong[10], in which the appellant pleaded guilty to 11 charges, including four theft charges, one of which involved the theft of a motorcycle, while the other three involved the theft of properties from vehicles[11]. The appellant had 22 previous convictions, 13 of which involved dishonesty[12]. The sentence passed on all 11 charges at first instance following pleas of guilty was 34 months’ imprisonment with a 4-year disqualification order. Although the appeal only concerned the disqualification order, Mr Wong invited the Court to consider the factual similarities between that case and this.

25.Mr Chan in response pointed out that the judge had given a detailed explanation in respect of the totality of sentences for Charges 2 to 5. He was right to treat Charge 5 as a distinct offence, which was not a necessary offence flowing from the theft of V1 (Charge 1).

26.It was further submitted that Charges 1 and 2 were not closely linked offences. Although the judge mentioned “one to two weeks” between the offences, it was in fact some 1½ months after stealing V1 that the appellant rode the same vehicle to the scene of arrest, where he attempted to steal V2. However, the judge ordered only 1 year and 10 months of the sentence for Charges 2 to 5 to run consecutively to the sentence on Charge 1, which Mr Chan said was on the lenient side.

Ground 3 (double-counting)

27.Given the argument about double-counting, the consecutive element of the sentence in respect of Charges 2, 3, 4 and 5 when applied to the sentence on Charge 1 was said to have resulted in a manifestly excessive sentence.

28.In response, Mr Chan argued that despite an element of overlapping as between Charges 1 and 2, the total sentence could not be said to be excessive or unfair. Not only did the appellant have an appalling criminal record for offences of dishonesty, but Charges 1 and 2 were separate offences committed in circumstances wholly unrelated to each other.

Discussion

29.As pointed out during the leave application, this Court’s focus is more on the length of the ultimate sentence of 4 years’ imprisonment (or the overall notional starting point of 6 years’ imprisonment) than the route by which that sentence was reached. We must observe that the appellant has a truly appalling criminal record, which is in itself an aggravating factor that justifies an enhanced sentence. Of his 65 previous convictions, 20 are in respect of an offence against the Theft Ordinance, for which he was dealt with in 2007 (two convictions), 2009 (six convictions), 2012 (one conviction), 2015 (three convictions), 2018 (four convictions) and 2022 (four convictions) respectively. He also has 11 previous convictions of driving without a valid licence and/or without third party insurance, which are the same offences as Charges 3 and 4.

30.It is relevant to set out the appellant’s previous convictions and his sentences in the last decade in some greater detail:

(i)  In HKSAR v Cheung Ka On (also known as Cheung Chi Ming Andy)[13], upon his pleas of guilty to seven charges in relation to the theft and use of two motorcycles on two separate occasions, HH Judge Alex Lee (as Alex Lee J then was) used 24 months’ and 27 months’ imprisonment as the respective starting points for the two charges of theft of a motorcycle. The appellant was sentenced to a total term in respect of all seven charges of 28 months’ imprisonment.

(ii)  In HKSAR v Cheung Ka On (also known as Cheung Chi-ming, Andy and Cheung Chi-ming)[14], following his pleas of guilty to 13 charges, which arose out of two incidents of stealing a motorcycle and comprised three charges of theft, one of going equipped for stealing and no less than eight driving related offences, Deputy District Judge Kathie Cheung (as HH Judge Cheung then was) adopted 30 months’ and 33 months’ imprisonment as the starting points of the respective charges of theft of a motorcycle, and sentenced this appellant to a total term in respect of all 13 charges of 42 months’ imprisonment.

(iii)  In 香港特別行政區 訴 張家銨 (又名張家明)[15], following his pleas of guilty to eight charges of offences comprising, inter alia, four charges of theft (including three motorcycles in three incidents), Deputy District Judge Raymond Wong sentenced the appellant to 28 months’ imprisonment, having adopted 18 months’ imprisonment as the starting point for each charge of theft of a motorcycle and ordered 5 months of each of the sentences for the second and third incidents to run consecutively to the sentence for the first incident.

31.This brings us to the second observation, which is that the appellant is a very persistent offender in relation to serious criminal offences. As was pointed out by the Court in Yu Chi Chiu, at [10]:

“…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.”

It will be noted that the Court drew no distinction between the make of vehicle stolen and we do not see why a motorcycle should be treated any less seriously than a motor car. Indeed, arguably, a motorcycle is easier to conceal and disguise and makes it harder to recover.

32.The usual starting point for an offence in relation to the theft of a motor vehicle, or handling a stolen motor vehicle, is 3 years’ imprisonment, although it could go above or below that figure depending on the circumstances of the case. Several cases are relevant to that proposition, although the facts of each case will be very different:

(i)  In So Pak Lun (an authority on which Mr Wong heavily relies in support of a lower sentence), this Court said (at [30]) that the respective starting points of 2 years’ and 18 months’ imprisonment, for the theft of a motorcycle and the handling of another motorcycle, were appropriate.

(ii)  In HKSAR v Cheng Chun Ming[16], which concerned the handling of a stolen private car, which was subsequently displayed for sale at a motor show, this Court said (at [14]) that:

“We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

(iii)  In HKSAR v Muhammad Waqas[17], this Court re-affirmed the starting point of 3 years’ imprisonment for a charge of theft of a motor vehicle as appropriate.

(iv)  In HKSAR v Wong Kam Tat[18], the Court said that a starting point of 4 years’ imprisonment for the handling of a stolen car by a motor dealer was “not too high”; whereas, in HKSAR v Lam Yui Yiu[19], where the appellant dishonestly handled a stolen taxi and fitted it with false number plates, the Court regarded a starting point of 4 years’ imprisonment as lying at the top end of the range, although it was not manifestly excessive.

33.As was pointed out in the leave judgment[20], there is no reasonable complaint against each individual starting point in respect of Charges 1 and 2, neither of which exceeds 3 years’ imprisonment. However, in determining the appropriate overall sentence, we note that the appellant was last discharged from prison on 30 June 2022, having repeatedly committed similar or the same offences since 2007 on a regular basis. He committed the present offences on or after 24 January 2023, which was some 7 months after his discharge. This must be taken as showing an obvious lack of deterrent effect of the past sentences and would independently justify an enhancement in the present sentence. As the Court said in HKSAR v Chan Pui Chi[21]:

“The sentences he had received in the past had proved to be no deterrent at all, and prevention of further repetition was demonstrably in the public interest”.

34.In respect of the mitigation that the motorcycles were not intended for resale but for the appellant’s own use, we note that this assertion was neither expressly accepted nor rejected by the judge. In fact, similar mitigation was put forward by this appellant in Cheung Ka On (also known as Cheung Chi Ming Andy), at [13], and the sentencing judge expressed his reservations in accepting the proposition as well. We too are very sceptical of such a claim, bearing in mind his subsequent convictions for the same or similar offences, resulting in no less than six further motorcycles being stolen, at a time when he a disqualified driver. We might add that the appellant was fortunate that he was never charged with driving whilst disqualified in the matters before us, yet he was at the time of the offences already subject to a lengthy disqualification order.

35.Mr Wong complains about the 3 months’ enhancement of the sentences in respect of both Charges 1 and 2. But he could not have complained about a 6 months’ enhancement in respect of Charge 1 and no enhancement at all for Charge 2. Had that happened, there would have been no argument about double-counting in respect of the sentence on Charge 2 and the consecutive element of the sentences on Charges 2, 3, 4 and 5 being made consecutive to Charge 1. Indeed, given the manifest need for greater personal deterrence demonstrated by the appellant’s repeated offending of the same or similar offences over the past 18 years, he could have had no complaint if his overall sentence had been significantly enhanced beyond 6 months’ imprisonment.

36.We have also referred to the authority of HKSAR v Chin Chin Fai[22]. In that case, the applicant pleaded guilty to seven charges, including a charge of attempted theft of a private car (Charge 2), and another charge of theft of a light goods vehicle (Charge 3), which were committed on two different occasions. When the applicant was arrested after committing the theft, there was also found in his possession a small quantity of “Part I Poison” and apparatus fit and intended for the inhalation of a dangerous drug. The sentencing judge (who was the same judge as in the present case) used 3 years’ imprisonment as the starting point for each of the charges of theft/attempted theft, and reduced each by one-third to 2 years’ imprisonment. On appeal, whilst no criticism was levelled against the individual sentences, it was argued that the total sentence of 46 months’ imprisonment was manifestly excessive; in particular, there was a consecutive element when 15 months of the sentence on Charge 3 was ordered to run consecutively to the other individual sentences. It is to be noted that the applicant there had a bad criminal record consisting of 32 previous criminal convictions, including 13 convictions for theft and burglary. In those circumstances, leave to appeal against sentence was refused.

37.There can be no valid criticism by the appellant that a part of the sentence in respect of Charge 2 should run consecutively to the sentence on Charge 1, for they derived from separate and distinct criminal transactions. Given his commission of a total of five offences, against the background of an appalling criminal record of similar offences, we consider that the ultimate sentence of 4 years’ imprisonment (from a notional starting point of 6 years’ imprisonment), whilst a hefty sentence, could not be said to be manifestly excessive. The issue of double-counting has also been overtaken by the appropriateness of such ultimate sentence.

38.Accordingly, it was for these reasons that we dismissed the appeal.

Mr Alan Chan SPP, of the Department of Justice, for the Respondent

Mr H Y Wong, instructed by CS Chan & Co, assigned by the Director of Legal Aid, for the Appellant