HKSAR v. Cheng Ho Man, Telly

DCCC 140/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2015

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to 3 charges as follows:

(1) Theft of a motor vehicle (1^st Charge);

(2) Forgery of documents, by way of using false registration marks on a motor vehicle with intent to deceive (2^nd Charge);

(3) Using a motor vehicle without third party insurance (3^rd Charge).

Facts

2.In the evening on 6 December 2014, PW1 parked a Toyota 7-seater private car with registration number cum marks “RW 3845” (“the Car”) on Castle Peak Road – Tam Mi, Yuen Long, New Territories (“the Location”).   The Car had been purchased by his company at $460,000 as a second-hand car in January 2013.  On 8 December 2014, he returned to the Location but found the car missing.  He reported the loss to the police. 

3.In the evening on 8 December 2014, the Defendant was arrested by the police when parking the Car into a Garage in Ta Kwu Ling, New Territories.  Instead of “RW 3845”, the Car displayed a pair of registration marks “HW 2131”.  A window of the Car was smashed.  The ignition switch, the middle seats, and the HiFi system were displaced. 

4.In the subsequent police enquiries, he made admissions as follows:

(1) The Car was stolen by him;

(2) He used a stone to smash the window of the Car at the Location;

(3) He replaced the original ignition switch with an electronic device which could operate the Car with a control key, both of which he had bought in advance in the Mainland at about RMB$500;

(4) He used the control key to operate the Car;

(5) He discarded the original ignition switch;

(6) He removed the HiFi system with a view to installing it onto his own car but discarded it upon seeing that it would not fit in;

(7) He removed the 2 middle seats and placed them at home;

(8) He purchased the pair of registration marks “HW 2131” to use on the Car from a car accessories shop because the original registration marks could be easily recognized;

(9) He discarded the original registration marks.

5.The police found the middle seats in his home.  The original ignition key could no longer operate the Car. 

6.The third party insurance of the Car would not cover an unauthorized driver.  The Defendant was driving the Car without third party insurance in force. 

Mitigation

7.He is 37 years of age, of F. 4 education level.  His wife is a Mainlander who comes to Hong Kong from time to time on a two-way permit.  Before arrest, he worked both as a heavy goods vehicle driver for a monthly salary of $10,000 and an office assistant for a monthly salary of $6,000.  He has 2 previous records not similar to any of the present case. 

8.His solicitor, Mr. Cheung, informs me that the Defendant stole the Car because he liked the 2 middle seats, which he dismantled from the Car to fetch home as furniture.  With the electronic device purchased in the Mainland, he was able to deactivate the original alarm system at the Location.  He then set up his own ignition system and alarm system before he drove home to dismantle the 2 middle seats. 

9.I am given to understand that the Car was of the model Vellfire, a luxury model favoured by affluent owners. 

Sentencing considerations

10.There are no sentencing guidelines for the 3 charges in question.  A sentence of 3 years has often been adopted as the starting point for the opportunistic handling of a stolen car (HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360).  A starting point of 3 years for the theft of 2 cars (one Lexus and the other one Daihatsu Applause) in quick succession was said to be on the low side (The Queen v Tang Hing Wong CACC 476/1994). 

Sentencing the Defendant

11.There was prior planning and the use of a special device to deactivate the original alarm system and the ignition switch as well as to set up a new ignition system and alarm system.  The original key could no longer operate the Car.  There was also the loss of the HiFi system and the damage to the window.  The owner would have to bear the loss and damage whilst the 2 middle seats can be reinstated to the Car.  There is no evidence of any syndication involved.  There was, however, the use of false registration marks to conceal the fact of the Car being stolen property.  As an unauthorized driver, he had necessarily driven the Car without third party insurance.  I take a starting point of 3 years for the 1^st Charge.  One-third off for the guilty plea, the sentence is 2 years.

12.I take a starting point of 3 months for the 2^nd Charge.  One-third off for the guilty plea, the sentence is 2 months.  Besides, I order disqualification of 12 months to commence today for all classes of vehicles.

13.I take a starting point of 3 months for the 3^rd Charge.  One-third off for the guilty plea, the sentence is 2 months.

14.As all 3 charges share the same facts, the sentences shall be concurrent.