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Hksar v Mukungu Collins Kityo And Another

Judgment Cited authorities 1 Cited in Precedent Map Related
Vincent
JurisdictionHong Kong
Judgment Date09 June 2023
Neutral Citation[2023] HKCA 661
Year2023
Subject MatterCriminal Appeal
Judgement NumberCACC164/2022
CourtCourt of Appeal (Hong Kong)
CACC164/2022 HKSAR v. MUKUNGU COLLINS KITYO AND ANOTHER

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 1st applicant and 2nd 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...

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