Hon D Pang JA (giving the Reasons for Judgment of the Court):
高等法院上訴法庭法官彭偉昌頒發上訴法庭判案理由書：

This is an appeal from the District Court. The Appellant admitted one charge of “theft”, contrary to section 9 of the Theft Ordinance, Cap. 210, and was sentenced to 2 years and 4 months’ imprisonment by the trial judge (Judge Sham) and disqualified from driving for 6 years. The Appellant was aggrieved and made an application for leave to appeal against sentence. The application was dealt with by a single judge and the hearing for the appeal proper was heard by this Court. See paragraph 28 of this Judgment for the decision on the appeal.
本案源於區域法院。上訴人承認一項‘盜竊’罪，違反香港法例第210章《盜竊罪條例》第9條，被原審法官（沈小民法官）判囚2年4個月，另加取消駕駛資格6年。上訴人不服，就判刑提出上訴許可申請。此申請經單一法官批准，正式的上訴則由本庭進行聆訊，結果見本判詞第28段。

Summary of facts
案情撮要

The following is the trial judge’s summary of facts in the case:
以下是原審法官對本案案情的撮要：

“2.The facts show that the car owner Mr. Chow parked his light goods vehicle in Tsui Ping North Estate Carpark at around 9 a.m. on 13 January 2015. When he returned to the Carpark at around 6:30 p.m. on the same day to collect his vehicle, he found it missing and therefore reported the matter to the police.
「2.案情透露，車主周先生於2015年1月13日早上9 時許，將輕型貨車停泊於觀塘翠屏北邨停車場，至同日下午約6時半返回停車場打算取車時，發現車輛不翼而飛，於是報警。

3.At around 8 a.m. on the following day, the defendant drove the missing vehicle and entered the precinct of the wet market of Yue Wan Estate. He parked the vehicle there and then left. Later someone discovered the missing vehicle and called the police. The police later arrived at the scene and waited there for the suspect to show up. At around 11:30 on that day, the defendant came. He opened the light goods vehicle and sat at the driver’s seat. The police therefore took action and arrested the defendant.”
3.翌日早上8時許，被告人駕駛有關失車進入漁灣邨街市範圍，把車停泊在該處然後離去。期後有人發現失車並報警，警察稍後到場等候可疑人出現。至當日約11時半，被告人出現開啟該輛輕型貨車並坐於司機位上。警察於是採取行動，將被告人拘捕。」

Plea of mitigation
輕判請求

The following is the defence’s plea of mitigation:
接著是辯方的輕判請求：

“4.The defendant is now 40 years old and has 33 previous criminal convictions, among which 8 convictions related to acts of dishonesty. The Court adjourned sentence and called for a background report on the defendant. Simply put, the report stated that the defendant was not able to have a stable job because he often broke the law and had to go in and out of prison in the past. As for his family relationship, it was harmonious.
「4.被告人現年40歲，過往有33項刑事紀錄，8項涉及不誠實的罪行。法庭將判刑押後，以便索取一份被告人的背景報告。簡單而言，報告指出被告人過往由於經常犯事入獄，未能有一份固定工作。就家庭方面，則關係和睦。

5.The defence counsel submits that the defendant committed this crime in a moment of greed. He asks the Court for a chance to turn a new leaf. The defendant will go out to find a job and resume a decent life after he is released from prison.  The defence counsel also submits that the vehicle involved in the case was not expensive and it was found quickly. So the case only caused inconvenience to the vehicle owner for roughly only half day. The crime was committed by the defendant alone and it was not a car theft by an organized gang.”
5.辯方律師指，今次被告人因一時貪念而犯下本案，希望法庭給予被告人一次重新做人的機會。被告出獄後會找一‍份工作，重回正軌。辯方律師亦強調，涉案車輛價值不高，而且很快便被尋回，對車主造成約半天之不便。此案為被告人一人行事，並非集團式的偷車活動。」

Sentencing by the trial judge
原審量刑

Having cited briefly the case of HKSAR v Li Cheung Yin CACC 313/2011 and a few cases mentioned by the Court of Appeal in that case, the trial judge said the following:
在略述過香港特別行政區訴李翔然 CACC 313/2011一‍案，以及上訴法庭在該案判詞提到的數宗案例之後，原審法官表示：

“8.It is obvious that in respect of the present case, the vehicle stolen by the defendant was a light goods vehicle. Based on the precedents, the Court of Appeal considered that a sentence of 3 to 5 years’ imprisonment would be appropriate for this type of offences.”
「8.明顯地就本案而言，被告人盜竊一輛輕型貨車，根據有關案例，這一類罪行，上訴庭的意見為3至5年。」

He said:
他說：

“9.Apart from the defendant’s guilty plea, there is no other persuasive factor in mitigation. I take 3 years’ imprisonment as the starting point for sentencing. According to the information provided by the prosecution, the defendant was released on 11 October 2014 and the present case took place on 13 January 2015. In other words, the defendant committed another serious crime only 3 months and 2 days after his release from prison. It is an aggravating factor for the defendant to commit another crime within a short time since his release. In respect of this factor, I impose an additional 3 months’ imprisonment.
「9.求情方面，除被告人認罪外，並無其他有力的求情因素。本席以3年作為量刑起點。根據控方提供予法庭的資料，被告人於2014年10月11號出獄，而本案發生於2015 年1月13日，即出獄後三個月零兩日，被告人便干犯另一項嚴重的罪行。出獄後短時間內再干犯另一罪行，是加重這罪行的嚴重性，就這一點，本席加刑3個月。

10.As for the defendant’s criminal conviction records, he has 8 convictions that involved acts of dishonesty. In this regard, I consider that the defendant is a repeated offender of this type of crimes. The previous sentences have obviously failed to have a deterrent effect on the defendant. In respect of this factor, I impose an additional 3 months’ imprisonment. The defendant pleaded guilty and is entitled to a one-third discount. The sentence imposed is therefore 2 years and 4 months’ imprisonment.”
10.至於被告人的案底，過往有8項與不誠實有關，就此情況，本席認為被告人是這類罪行的積犯，明顯地過往的刑罰對被告人起不到阻嚇作用，就這一點，本席再加刑3 個月，認罪扣減三分一，最後刑期為2年4個月。」

As for whether a qualification order (commonly known as the suspension order) is appropriate, the trial judge made the following conclusion:
至於俗稱停牌令的適用，原審法官則有以下結論：

“11.Pursuant to section 69 of the Road Traffic Ordinance, the Court considers ordering that the defendant be disqualified from driving.  It is understood that the defendant has never had a valid driving licence. He first committed a driving offence in 1993 and reoffended in 2009. He had two similar convictions of driving offence in 2011. In view of that, I consider that it is a must that the defendant be prohibited from driving for a period of time, and that he be disqualified from obtaining a driving licence and prohibited from driving.
「11.法庭現考慮根據《道路交通條例》第69條，考慮將被告人停牌。據法庭了解，被告人其實從未擁有任何正式駕駛執照。最早干犯駕駛罪行為1993年，至2009年亦再有這類駕駛罪行，2011年亦干犯兩次此類駕駛罪行。考慮到這個情況，本席認為頒令被告人於一段時間內，不得申領任何車輛的駕駛執照及禁止被告人駕駛是必須的。

12.After consideration, it is ordered that the defendant be disqualified for 6 years, during which he is disqualified from obtaining or holding a driving licence of any class of vehicle, and is prohibited from driving.”
12.經考慮後，頒令被告人停牌6年，期間被告人不得申領或持有任何車輛的駕駛執照，亦不可以駕駛車輛。」

Granting of leave to appeal
准予上訴的許可

Originally, the Appellant acted in person in his application for appeal. His ground was that it was not fair to him because he committed only one offence and his disqualification period of 6 years was too long as compared with other offenders. Moreover, he also argued that he was only greedy for the valuables inside the vehicle. It was only when he found that the vehicle key inside the compartment that he tried to start off the vehicle and drive it away for “a joyride”. The Appellant emphasized that he had no accomplice when he committed the crime. He did not change the licence plate to cover up his act and therefore, it was a case of “taking conveyance without authority” and he should be dealt with accordingly.
上訴人原本以自辯的形式申請上訴，理由是，與別案相比，他只干犯了一項罪行，停牌的時間卻長達6年，並不公平。此外，上訴人說，他只是貪圖涉案車輛內的財物，期間發現當中有汽車車匙，才嘗試把車開動及駛走作「遊車河」的用途。上訴人強調，他犯案時沒有同夥，把車取走後沒有換掉登記號碼牌等掩人耳目的行為，所以案件只應按‘未獲授權而取用運輸工具’罪來處理。

However, according to the Judgment by the single judge, there could only be two reasons why the Appellant was granted leave to appeal. The reasons are as follows:
然而，根據單一法官的《判案書》顯示，上訴人獲批不服判刑的上訴許可，原因只有兩個：

The trial judge could have erred in principle and/or imposed a sentence that was manifestly excessive because he imposed the sentence on two grounds, namely that the Appellant committed the offence shortly after his release from prison and that he had numerous similar convictions in the past. (hereinafter as “Issue 1”)
原審法官以上訴人出獄後不久即再度犯案，及有多項同類前科兩個理由各自加刑，可能屬原則犯錯及/或令最終刑期明顯過重。（後稱‘爭議一’）

The trial judge could have made a procedural mistake as he did not comply with the provision in section 69A of the Road Traffic Ordinance to direct that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. The disqualification period of 6 years that he ordered could also be manifestly excessive. (hereinafter as “Issues 2A and 2B”)
原審法官未按《道路交通條例》第69A條，指示停牌時段不得在上訴人刑滿出獄前開始計算，可能屬程序出錯。他把停牌令的時段定為6年，也可能屬明顯過重。（後稱‘爭議二A’和‘二B’）

This appeal
本上訴

i)The question is not about the sentencing starting point
i）問題不在量刑基準

As seen from paragraph 8 above, the single judge did not allow the Appellant to appeal on the ground that the sentencing starting point was too high. The counsel for the Appellant also expressed in the course of the appeal proper that he would not pursue that ground of appeal.
從上文第8段可見，單一法官並未批准上訴人以本案量刑基準過高為由而提出上訴，在正式上訴期間才代表上訴人的大律師亦表明放棄這個理由。

However, for the sake of completeness, I will also point out that the theft of a vehicle is a serious crime for the following reasons:
不過，為求全面，本庭仍然會指出，偷車是嚴重罪行，理由包括：

Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.
不論車種，汽車本身已經是貴重物品，價值不菲。

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).
汽車也是一個私人空間，它會間中甚至長期擺放著各種個人及/或可洩露敏感資料（如電話、名片、各式文件/信件和各種記憶卡或出入閘卡）的物件。

A vehicle is often parked in the public place, making it prone to be a target of theft.
汽車經常停泊在公眾地方，容易成為竊取的目標。

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.
對於私家車的車主來說，失掉車輛是失掉代步工具，會造成很大的不便；對於商用車或用於工作的車輛的車主來說，失掉車輛是失掉生財器具，會造成額外的經濟損失甚或影響生計。

Regardless of the purpose of thieves and whether the number of vehicle thefts is rising sharply, the severity of vehicle thefts is reflected in the four points mentioned above. If other factors are involved (e.g. the vehicle theft is carefully planned, the stolen vehicle is resold or used to commit other crimes), they will be considered as aggravating factors.
無論賊人的目的何在、偷車案的數目又是否飆升，偷車案的嚴重性皆可從上述四點反映出來。若然案件涉及其他情節（如賊人計劃周詳、失車被非法轉售或用作干犯其他案件的工具），則可被視為加重罪責的因素。

For reasons stated above and in view of the actual facts in the case, we do not think that it was manifestly excessive for the trial judge to take 3 years’ imprisonment as the starting point for sentencing. That basis is consistent with the general sentencing quantum laid down in cases. The Appellant had stolen the vehicle for at least 17 hours and had not returned or discarded it during the interval, which was obviously contrary to the circumstances of “taking conveyance without authority”. As a matter of fact, the Appellant pleaded guilty to “theft”, meaning that he admitted having the intent to permanently deprive others of their property. The offence of “theft” and that of “taking conveyance without authority” are no comparison.
基於以上的考慮，以及本案的具體事實，本庭不認為原審法官以3年作為量刑基準是明顯過高。這個基準符合案例所顯示的一‍般量刑幅度。上訴人把車偷去最少十七小時而沒有歸還或放棄的跡象，也明顯與‘未獲授權而取用運輸工具’的情况有别。事實上，上訴人承認‘盜竊’，亦即承認有永久剝奪別人財產的意圖，所以跟‘未獲授權而取用運輸工具’不能相提並論。

ii)The problem of doubly aggravated sentence
ii）雙重加刑的問題

The cruxes of the case are twofold. Firstly, it is “Issue 1”.
本案的真正問題有兩個，首先是‘爭議一’。

Experience shows that some judges will enhance the sentencing starting point if the culprit commits an offence shortly after his release from prison. If the culprit has numerous similar convictions in the past (also known as a persistent offender), that will definitely be a recognized factor for enhancing the sentencing starting point: HKSAR v Chan Pui Chi [1992] 2 HKLRD 830.
根據經驗，個別法官會因犯人在出獄後不久即再度作案而把量刑基準提高。如果犯人有多項同類前科（亦即慣犯），就更肯定是調升量刑基準的認可因素：見HKSAR v Chan Pui Chi [1992] 2 HKLRD 830。

But, as McWalters J said in the judgment of HKSAR v Yeung Kam Tung CACC 427/2012 (date of judgment: 19 March 2013), in the case that both factors exist and as far as enhancing sentencing starting point is concerned, the factor of reoffending shortly after release is no different from that of having multiple similar convictions in the past. The former is at most proof of the latter. He said:
然而，正如麥偉德法官在HKSAR v Yeung Kam Tung CACC 427/2012 （判案書日期：2013年3月19日）的判詞指出，在兩者同時存在的情況下，作為提高量刑基準的因素，出獄後不久即再度犯案和有多項同類前科在性質上是沒有分別的。極其量，前者只是證明後者的證據。他說：

“12.The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant.  The first was the fact that the offence was committed on the day of his discharge from prison for a like offence.  The second was his history of offending which caused her to characterise him as a persistent offender.
“12.The judge identified two aggravating features as justifying the enhancement of the starting point that she adopted for sentencing this applicant.  The first was the fact that the offence was committed on the day of his discharge from prison for a like offence.  The second was his history of offending which caused her to characterise him as a persistent offender.

13.Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender ….”
13.Essentially, the first basis for aggravation is nothing more than potentially further evidence that the applicant is a persistent offender ….”

Given the above, the trial judge has undoubtedly committed an error in principle when he imposed an additional 3 months on the basis that the two factors co-existed.
既然如此，本案原審法官按上述兩個同時存在的因素先後加刑3個月，無疑是原則犯錯。

It is also worth mentioning that though the Appellant has 10 (and not 8 as mentioned by the trial judge) previous convictions of “dishonesty”, only 5 of which are “thefts”. And looking at the severity of the sentences imposed, those convictions could not possibly be thefts of vehicles. Regarding the convictions that are directly related to vehicles, the record shows that the Appellant has only one conviction of “taking conveyance without authority” in 1993 when he was only 18 years old.
還要一提的是，上訴人雖然有十項（而非原審法官所指的八項）‘不誠實’定罪紀錄，但當中只有五項屬‘盜竊’，而且根據其判罰的輕重來看也不可能是偷車。至於和汽車直接有關的定罪，紀錄所顯示的就只有1993年一項‘未獲授權而取用運輸工具’，但上訴人當時只有18歲。

In the circumstances, the trial judge enhanced the sentencing starting point by a total of 6 months. To us, that was manifestly excessive. We think that an enhancement of 2 months will be appropriate.
在相關的背景下，原審法官把上訴人的量刑基準提高至合共6個月，本庭認為是明顯過重。本庭認為，一個合適的調升幅度是2個月。

Conclusion: the sentencing starting point should remain to be 3 years and be enhanced by 2 months as the Appellant is a persistent offender. The Appellant has pleaded guilty and is entitled to a one-third discount, therefore the sentence to be imposed is reduced to 25 months (i.e. 2 years and 1 month).
結論：本案的量刑基準應維持於3年，之後因上訴人是慣犯而提高2個月；上訴人認罪，可得三分一的扣減，就回落至25 個月（即2年1個月）。

iii)Excessively long period of disqualification
iii）停牌時段過長的問題

A careful look at section 69A the Road Traffic Ordinance will show that the section is only applicable to a defendant convicted of “a scheduled offence” (See section 69A(1)(a) to (d)). It is not applicable to a defendant who is disqualified for a conviction of “stealing a motor vehicle”) (See section 69(1)(c)). In other words, there was no need for the trial judge to specify that the disqualification period was not to start to run until the Appellant finished serving the term of imprisonment. That would also mean that “Issue 2A” does not exist and that the disqualification period would start to run from the same day the trial judge made the order.
細看之下，《道路交通條例》第69A條只適用於以一‍系列「列表罪行」入罪的被告（見第69A(1)(a)至(d)條）。它不適用於因「偷竊汽車」（“stealing a motor vehicle”）而被取消駕駛資格的被告（見第69(1)(c)條）。換言之，原審法官並沒有指出停牌時段不得在上訴人刑滿出獄前開始計算的須要。也就是說，‘爭議二A’並不存在，有關的停牌令會在原審法官判刑的同一天開始計算。

As for “Issue 2B”, what will a 6-year disqualification period mean according to the original sentence (2 years and 4 months)? It would mean that the Appellant would be disqualified from obtaining a driving licence within 3 years and 8 months since his release from prison. If the Appellant is granted an early discharge for good conduct and behaviour in prison (usually the term is shortened by a third), he would even be disqualified from obtaining a driving licence for a longer period of 4 years and 5 months after his release from prison.
至於‘爭議二B’，若然以原本的刑期（2年4個月）來計算，一個6年長的停牌時段會意味著甚麼？就是上訴人在出獄後的3 年8個月內都沒有資格申領駕駛執照。假設上訴人在獄中行為良好而得到提前釋放（一般是提前三分一），他出獄後沒有資格申領駕駛執照的時段更會長至4年5個月。

We understand that the Appellant has never obtained a driving licence since 1993 (when he was 18 years old), but from the same year (1993) he has intermittently committed multiple offences related to driving. His last few offences were convicted in a year as close as 2012 (“driving a vehicle without a driving licence” and “driving on the road a vehicle of a class specified in schedule”) and that was why the trial judge imposed a 6-year disqualification order. The trial judge believed, “To prohibit the defendant from driving is a must!”
本庭理解，上訴人自1993年（18歲）以來都沒有考取過任何駕駛執照，卻從同年（1993年）開始即斷續犯下與駕駛有關的多項罪行，最後幾項（‘無牌駕駛’和‘在道路上駕駛附表所指的種類的車輛’等）更近在2012年，以致原審法官頒下6年長的停牌令。原審法官認為：「禁止被告人駕駛是必要的」。

But according to the authoritative decision of the England Court of Appeal in the case R v Cooksley [2004] 1 Cr App R (S) 1 in this regard, a disqualification order is forward looking and preventive rather than punitive. It is designed to protect road users in the future from an offender who has shown himself to be a real risk on the roads (See paragraph 40 of the judgment):
不過，正如英國上訴法院在這方面屬權威典據的案例R v Cooksley [2004] 1 Cr App R (S) 1指出，停牌令是屬於前瞻及預防性而非回顧及懲罰性的，它的作用在於為未來的道路使用者提供保護，免受已自證為會為道路安全帶來實質威脅的人所累（該案判詞第40 段）：

“…. The main purpose of disqualification is …. ‘forward looking and preventive rather than backward looking and punitive’.  It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”
“….  The main purpose of disqualification is …. ‘forward looking and preventive rather than backward looking and punitive’.  It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”

It is also said in paragraph 43 of the same judgment that the length of the disqualification should not be tailored to take into account the anticipated date of early release of the offender. On the other hand, an excessively long period of disqualification might be counter-productive because an offender who is obsessed with cars or requires a driving licence to earn his or her living may yield to the temptation to drive without a valid licence:
同一判詞的第43段亦指出，雖然停牌令的長短，不應以犯人的最早獲釋期為考慮，但一個不可抹殺的可能是，對迷戀汽車或以駕駛汽車為職業的人而言，一個過長的停牌令會產生反效果，令這類人士因抵受不住試探而無牌駕駛：

“We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender.  On the other hand, we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified”.
“We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender.  On the other hand, we accept that to extend the ban for a substantial period after release can be counter-productive particularly if it is imposed on an offender who is obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified”。

Coming back to the present case, the facts show that though the Appellant has persistently committed the offence of driving a vehicle without a licence, he has never been convicted of “dangerous driving” or “careless driving”. As he kept driving a vehicle, it is probably a temptation too strong for him to resist. For the above two reason, this Court is of the view that a 6-year disqualification order is undoubtedly wrong in principle and excessively severe.
反觀本案上訴人，他雖然不斷無牌駕駛，卻從來沒有因為‘危險駕駛’或‘不小心駕駛’被定罪。由於他不斷駕駛，駕駛對上訴人而言亦應該有著某種難以抗拒的試探。基於上述兩個原因，本庭認為6 年的停牌令無疑是原則有錯及明顯過重。

This Court considers that a shorter disqualification order may perhaps remind the Appellant to take the driving licence test as soon as possible. This is another signal that this Court gives him (the Appellant has on a few occasions been disqualified from driving). If the Appellant really comes to his senses, the road users will have greater protection in the future because at least the Appellant will not be driving a vehicle without third party insurance. If the Appellant really comes to his senses, he will not risk driving a vehicle or even driving a stolen vehicle whilst being disqualified.
本庭認為，一個較短的停牌令，或許會對提醒上訴人須盡快考取駕駛執照有幫助。這是法庭對他再一次提出的信號（上訴人之前曾被數度取消駕駛資格）。假如上訴人真的有所覺悟，未來的道路使用者會有更大的保障，起碼上訴人不會再在沒有第三者保險的情況下駕駛。假如上訴人真的有所覺悟，他在停牌期間也不會冒險駕駛甚或偷車駕駛。

Conclusion: the disqualification order made by the trial judge should be reduced from 6 years to one of 4 years.
結論：原審法官頒下的停牌令，應由6年減至4年。

Conclusion
總結

The Appellant’s appeal is allowed. The sentence of 2 years and 4 months is now set aside and a sentence of 2 years and 1 month of imprisonment is imposed instead. The 6-year disqualification is also set aside and the Appellant is disqualified from driving for 4 years instead.
上訴人的上訴得直。2年4個月的刑期撤銷，改判2 年1 個月。6 年的停牌令也撤銷，改判取消駕駛資格4年。

Ms Catherine Ko, SADPP(Ag), of the Department of Justice, for HKSAR
答辯人：由律政司署理高級助理刑事檢控專員高寶翠代表香港特別行政區。

Ms Sezen Chong and Mr Amos Ma, instructed by Hong Kong Bar Association Free Legal Service, for the Appellant
上訴人：由大律師公會法律義助服務轉聘莊君如大律師及馬俊敏大律師代表。