HKSAR v. Cheung Ka on

DCCC 378/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 378 OF 2015

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REASONS FOR SENTENCE

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INTRODUCTION

1.The defendant has pleaded guilty to a total of seven charges which relate to his theft and user of two motorcycles on separate occasions.  The first three charges are respectively theft of the first motorcycle (registration no. NR 6187) (Charge 1); driving without a valid driving licence (Charge 2); and using the first motorcycle without third party insurance (Charge 3).  The remaining four charges are respectively theft of the second motorcycle (registration no. PU 8909, chassis number MF06-1202111) (Charge 4); theft of a number plate and a vehicle licence pertaining to a third motorcycle (Charge 5); driving without a valid driving licence (Charge 7); and using the second motorcycle without third party insurance (Charge 8).

2.There is also a charge of using documents on a vehicle with intent to deceive (Charge 6) to which he has pleaded not guilty.  However, on the application of the prosecution and with the consent of the defence, that charge is ordered to be left on court file.

FACTS

3.Shortly stated, on 15 February 2015 the defendant stole the first motorcycle.  About a week later on 22 February 2015, the owner of the first motorcycle happened to find that the defendant was riding on the motorcycle with a passenger.  The defendant was then duly intercepted but the passenger managed to escape.  The Police was called.  Under caution, the defendant admitted having stolen the first motorcycle and stated that he did not have any driving licence or third party insurance.  He said also that he used to have a learner licence which had already expired. 

4.On 28 February 2015, which was only about a week after the defendant was arrested in relation to the first motorcycle and whilst he was still on police bail, he stole the second motorcycle.  On 9 March 2015 when the defendant was in control of the second motorcycle and was starting the engine intending to ride back home, he was intercepted and arrested by the Police.  At the time, he was also found in possession of the registration mark and vehicle licence pertaining to the third motorcycle and he admitted having stolen those two items as well.

5.I am further informed by the prosecution that the first motorcycle was worth $18,000 and the second one $20,000.  The figures are not disputed by the defence.

ANTECEDENT AND RECORDS

6.The defendant is now aged 43.  He is single and living with his family.  Before the arrest, according to Mr Hemmings, the defendant worked as a crane operator earning about $15,000 a month.

7.The defendant has a poor record.  He had seven court appearances between April 1996 and November 2012, resulting in a total of 35 convictions including possession of offensive weapon, misleading police officer, common assault, assaulting police officer, taking and attempted to take conveyance without authority (x3), driving without a valid licence (x4), driving whilst disqualified (x3), using a motor vehicle without third party insurance (x6), possession of forged vehicle document (x2), theft (x5), going equipped for stealing, dangerous driving (x2), failing to stop in case of accident whereby personal injury was caused, failing to report an accident, possession of dangerous drug (x2) and possession of equipment fit and intended for smoking dangerous drug. 

8.Furthermore, I am told by Mr Hemmings, counsel for the defendant, that the vast majority of the defendant’s aforesaid records concerned motorcycles.  In fact, the five convictions of theft on 31 July 2009 (DCCC 183/2009) were all about theft of motorcycles. 

9.As regards disqualification, I note that the first time a disqualification order was imposed on the defendant was on 24 April 1996 (SPK 361/1996) and that order was for 18 months.  Then, on 18 May 2007, there was another disqualification order imposed on him for 2 years (KC 2551/2007).  Finally, on 31 July 2009 the defendant was for the third time ordered to be disqualified for a total period of 10 years (DCCC 183/2009).  That order does not end until July 2019. 

MITIGATION

10.Despite the fact that the defendant is a drug addict, Mr Hemmings said that the addiction was not the reason for the present offence, for the defendant had a job earning a decent income after his last release from prison.  The reason for the present offence, Mr Hemmings said, was the defendant’s craving for motorcycles. However, the defendant has never managed to pass the driving test and therefore he could not have ridden a motorcycle legally.  Mr Hemmings confirms that the defendant has not been suffering from any psychiatric or psychological conditions. 

11.Mr Hemmings, with his customary pragmatism, accepted that apart from the timely plea not much can be said on behalf of the defendant by way of mitigation.  Mr Hemmings also accepted that an immediately custodial term and a period of disqualification are called for. 

SENTENCING CONSIDERATIONS

Theft

12.Theft of a motorcycle is a serious offence.  It may cause significant financial loss as well as considerable inconvenience to the owner.  In HKSAR v So Pak Lun (CACC 276/2013), the Court of Appeal says that a starting point of 2 years’ imprisonment would be appropriate for this type of offence.

13.The defendant through his counsel indicated that he committed the two thefts under consideration not because of any financial difficulties but only to gratify his personal desires.  Whether or not that is true, in any event the causal way in which the defendant took away the others’ motorcycles and kept them for his own use and the short time gap between the two thefts show that he had no respect whatsoever for the proprietary right of the owners.  Besides, the defendant’s previous similar convictions for taking conveyance without authority (2007), theft (2009) and attempted taking conveyance without authority (2012) show that he is a repeated offender and that he has failed to learn any lesson from his previous punishments.  In view of the above, a heavy deterrent sentence for the present case is more than justified.

14.As regards the second theft (Charge 4), there is the added aggravating factor in that it was committed just over a week after he had been arrested for the first one and whilst he was still on police bail: HKSAR v Leung Ting Fung & Anor (CACC 109/2014).  I note also that it was not the first time that he committed further offences whilst on bail (DCCC 183/2009). 

Driving without a valid licence and

Driving without third party insurance

15.As regards the offence of driving without a valid licence, this is not the first time that the defendant is convicted of this offence.  I note that in case of a second or subsequent conviction the offence carries a maximum sentence of 6 months imprisonment and a fine of $10,000.  The defendant should count himself lucky that he is not charged with the more serious offence of driving while disqualified with carries a higher maximum sentence.

16.As regards the offence of driving without third party insurance, the maximum sentence is 12 months’ imprisonment and a fine of $10,000. 

17.Although the defendant had not in fact caused any traffic accident or created any dangerous scenes in the present case, in my view his riding had posed a risk to the safety of other road users.  He knew that he had never passed the driving test and therefore he should not have ridden a motorcycle at all.  Moreover, he knew that other people would not be able to obtain any compensation for personal injuries or losses in case of an accident. 

18.The defendant did not need to drive to earn a living and had no necessity to ride a motorcycle.  Viewing in that light and the number of similar previous convictions that the defendant had got, the defendant had acted deliberately and consistently in a selfish and irresponsible manner by insisting on riding a motorcycle.  I note also on 31 July 2009 the defendant was sentenced after plea to imprisonment terms of 4 months and 8 months respectively for offences of driving without a valid driving licence and driving without third party insurance.  The starting points adopted by the court then were 6 months and 12 months which are the respective maximum imprisonment terms that can be passed for the said two offences. However, those sentences apparently had failed to deter the defendant from committing further similar offences.  Moreover, the fact that the defendant had repeatedly fouled the disqualification orders imposed on him shows that he had little respect for court orders.  As such, he must expect the law to be applied to him in its full rigour. 

19.As regards Charges 2 and 3, in my view there is an aggravating factor in that the defendant admitted that he was at the time giving a lift to a passenger from Mong Kok to Lo Wu. Whether or not the passenger knew that the defendant had no licence, carrying a passenger behind him would make it more difficult for the defendant to balance himself whilst riding.  Moreover, the intended journey from Mong Kok to Lo Wu would be a long one.  These two factors would have increased to the risk of an accident.  However, the defendant had shown no hesitation in taking the risk. 

20.As regards Charges 7 and 8, although the defendant was starting the engine when he was intercepted and arrested, there is the aggravating factor that the offences were committed whilst the defendant was on police bail.

SENTENCE

Offences relating to NR 6187

21.In view of the above, in relation to the first group of offences, the individual sentences after the one-third discount for plea are as follows:-

Charge 1: 24 months’ imprisonment, reduced to 16 months

Charge 2: 6 months’ imprisonment, reduced to 4 months

Charge 3: 12 months’ imprisonment, reduced to 8 months

Offences relating to PU 8909

22.As regards the second group of offences, the individual sentences after the one-third discount for plea are as follows:-

Charge 4: 27 months’ imprisonment, reduced to 18 months

Charge 5: 6 months’ imprisonment, reduced to 4 months

Charge 7: 6 months’ imprisonment, reduced to 4 months

Charge 8: 12 months’ imprisonment, reduced to 8 months

Disqualification

23.As regards disqualification, I am alive to the sentencing principles stated in Secretary for Justice v Ko Wai Kit [2001] 3 HKLRD 751 and Secretary for Justice v Hung Ling Kwok [2010] 4 HKLRD 365, in particular disqualification is primarily forward-looking, with protection of the public being a significant factor.

24.I note that the defendant has already been subject to a current disqualification order which does not end until July 2019.  However, in view of the imprisonment term that the defendant is going to serve and in order that there can be a meaningful period of disqualification for the present offences over and above the current one, I order a 5-year disqualification period for in respect of all classes of vehicles Charges 1 and 4 respectively pursuant to s 69(1)(c) & (2)(b) of the Road Traffic Ordinance, Cap 374.  I also order a 3-year disqualification period in respect of all classes of vehicles for Charges 3 and 8 respectively pursuant to s 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. 

Totality

25.In my judgment, the appropriate overall sentence for the first group of offences is 27 months’ imprisonment before plea which is reduced to 18 months’ imprisonment after plea.  To achieve this, I order that the sentences on Charges 2 and 3 be served concurrently and that 2 months of that combined sentence be served consecutively to the sentence on Charge 1.

26.In my judgment, the appropriate overall sentence for the second group of offences should be 33 months’ imprisonment before plea which is reduced to 22 months’ imprisonment after plea.  To achieve this, I order that:-

(a) 1 month of the sentence on Charge 5 be served consecutively to the sentence on Charge 4; and

(b) the sentences on Charges 7 and 8 be served concurrently and 3 months of that combined sentence be served consecutively to the combined sentence on Charges 4 and 5.

27.As regards the total sentence for all the offences, the aforesaid two groups of offences are separate and distinct which would normally call for consecutive sentences. However, in view of totality and after standing back to view the overall culpability of the defendant from a distance, I order that 8 months of the overall sentence on the second group of offences be served consecutively to the overall sentence on the first group of offences, thus making a total sentence of (18+10=) 28 months’ imprisonment.

28.Furthermore, I order that all the disqualification periods imposed above are to run concurrently starting from today: see R v Bain [1973] RTR 213 and R v Tang Sik Hung [1995] 1 HKC 723.  Thus, the total disqualification period for the present case is one of 5 years.