HKSAR v. Andrianiaina Adrien Luck Yu Pau

DCCC 104/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 104 OF 2016

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REASONS FOR SENTENCE

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Introduction

1.On 29 March 2016, the defendant appeared in this court and pleaded guilty to a total of four charges.  They were, firstly, taking conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210; secondly, dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap 374; thirdly, 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; and fourthly, robbery, contrary to section 10 of the Theft Ordinance, Cap 210.  The defendant agreed to the facts recounted in the Summary of Facts provided by the prosecution in support of the four offences; he was accordingly convicted as charged.

Facts

2.On the morning of 17 November 2015, in order to collect some waste products at a restaurant, the driver of a light goods vehicle KK4542 left his car temporarily unattended outside Ground Floor, No.50 Pitt Street, Mongkok, Kowloon.  The defendant took advantage of the situation, boarded the car and drove it away. 

3.He proceeded along Pitt Street and turned left into Waterloo Road.  He drove past the junction between Waterloo Road and Dundas Street, halted and then reversed the car against the flow of traffic on Waterloo Road back to the junction.  There he made a left turn into Dundas Street.  He went from there to Yin Chong Street in the direction of Fa Yuen Street, ramming into several street stalls along the way.  Next, he reversed the car at speed, once again against the flow of traffic; on reaching the junction of Yin Chong Street and Kwong Wah Street, he backed the car into Dundas Street, against the flow of traffic, until he reached the junction between Dundas Street and Waterloo Road.  Next, he careered onto and travelled in the pavement of Waterloo Road, reaching the entrance of a McDonalds Restaurant. He stopped and then backed the car, firstly, along the pavement and then onto the carriageway of Waterloo Road; in the course of doing so, he damaged a set of traffic lights and a segment of the metal railing on the pavement.  He drove forward on Waterloo Road and arrived at the junction of Waterloo Road and Yim Po Fong Street.  There he made a left turn into Yim Po Fong Street and halted.

4.He got out of the car and entered the lobby on the ground floor of Stanford Hotel at No.118 Soy Street, Mong Kok, Kowloon.  Pointing a screwdriver at a hotel staff at the front desk, he shouted in Punti: “Robbery, sound the alarm,” and walked behind the desk to pick up the speaker of a telephone.  Later, he took away the mobile phone worth $2,000, belonging to the staff member, and left the hotel via the rear entrance. 

5.About 10 minutes later, the police found the defendant at a location some 20 metres from the hotel, namely, outside No.15 Kwong Wah Street, and arrested him, at which time he was found to have two screwdrivers in his left, rear pocket.  The mobile phone he took away from the hotel was never recovered.  Under caution, he said he had driven the car away since he found its key inserted in the ignition, and that he had entered the hotel to ask for the use of their toilet but was refused by the hotel staff, so he declared robbery and took the mobile phone away which he later discarded at a rear lane outside the hotel.

6.In a subsequent video recorded interview, the defendant admitted to the offences, adding he had consumed “ice” – a common name given to a form of dangerous drug – in a park shortly before the incident, he had driven the stolen vehicle away for fun, and that he had had the two screwdrivers with him for work purposes.  

7.The manner of the defendant’s driving left a skid mark of 21.3 metres in length on the pavement of Waterloo Road and another skid mark measuring 30 metres originating from the damaged railing on the pavement to the carriageway of Waterloo Road.  Twelve oil buckets had fallen from the light goods vehicle and were dispersed on Waterloo Road.  Four street stalls at Yin Chong Street and three shops on Waterloo Road, the railing measuring three metres in length on the pavement of Waterloo Road, and a set of traffic lights were damaged.  The estimated costs of repair to the four stalls totalled in excess of $10,000, and those for the three shops exceeded $94,000.  The estimated cost of repair in respect of the car was around $70,000.  At the time of the incident, the defendant drove the car without third party insurance coverage.  

Mitigation

8.The defendant was born, according to his antecedent statement, in Madagascar in January 1961 and is now 55 years old.  He has received education in Hong Kong up to Form Five level and works as a decoration worker.  He has a criminal conviction record entered against him in May 1982 for an offence of selling ticket or possession of tickets for unauthorized sale; for the purposes of the present proceedings, he is treated as if he is a person of previous good character.  Apart from a fixed penalty ticket for failing to comply with traffic signals, he has no conviction records for any traffic offences.

9.In his plea in mitigation, Mr Victor Cheung appearing for the defendant says the defendant was born in France instead and that he came to Hong Kong when he was eight years old.  As a decoration worker, the defendant makes, according to Mr Cheung, around $20,000 a month.  Mr Cheung submits that the defendant’s parents have passed away a long time ago.  In respect of the factual scenario leading to the commission of the offences, Mr Cheung repeats in gist what the defendant himself has told the police subsequent to his arrest.  Mr Cheung asks the court to give the defendant the full one-third discount in view of his guilty pleas and to consider imposing a concurrent sentence on the defendant, the four offences having arisen, argues Mr Cheung, out of the same common factual origin.  Mr Cheung adds that the defendant is not in a position to make any compensation to the victims concerned.

Consideration

10.Taking somebody’s conveyance without authority for a joy-ride in the expectation that the vehicle would in the end be restored, sound and save, to its rightful owner is one thing.  Doing so having consumed a dangerous drug, plus driving the car in a dangerous manner resulting in substantial damage to property and then committing a serious offence of robbery, is quite another.

11.There is no sentencing tariff for the offence of taking conveyance without authority, which carries a statutory maximum sentence of seven years’ imprisonment[1]. In determining the proper starting point for this offence, the court should take into account the reason why the defendant took the conveyance: it could be for a joy-ride, but it could, in worst cases, be for the purposes of committing a serious offence, such as abduction or bank robbery.  In the circumstances of this case, there is insufficient justification to say that the defendant has had the intention to commit a robbery when he drove the car away.  That said, his conduct did result in substantial damage to the car and in the loss of the waste products on board.  In all the circumstances, the proper starting point for the first charge should be one of 12 months’ imprisonment.  He is entitled to one-third discount for his guilty plea and is sentenced to eight months’ imprisonment in respect of that charge.

12.The statutory maximum sentence for the offence of dangerous driving committed by the defendant is one of three years’ imprisonment[2] (the threshold conditions[3] for a 50% enlargement of the maximum sentence[4] not being satisfied[5] in this case).  The offence of dangerous driving can be committed in a wide variety of circumstances, ranging from a serious lapse in concentration to ferocious driving in order to avoid lawful apprehension.  In the present case, there are a number of obvious aggravating factors, all of which are extremely serious.  First, the defendant admitted to the police that he had consumed “ice” shortly before the incident.  Secondly, as evidenced by the skid marks, he had driven the car at speed and had done so in an erratic manner: backing or reversing the car against the flow of traffic and on the pavement, ramming into four street stalls, and running into three shops.  Thirdly, his manner of driving had caused damage to private property of a significant value.  Fourthly, some of the damaged property belonged to the government.  The fact that no one has been injured by the defendant was entirely fortuitous.  A proper starting point for the second charge is one of 24 months’ imprisonment, which is reduced by one-third, on account of his guilty plea, to one of 16 months’ imprisonment.

13.The offence of using a motor vehicle without third party insurance is punishable by imprisonment for 12 months.[6]  This case involves property damage of substantial value.  The appropriate starting point should be nine months’ imprisonment; the defendant is sentenced, after plea, to six months’ imprisonment for the third charge.

14.In Mo Kwong-sang v The Queen[7], the Court of Appeal said: “We suggest that, in future, the appropriate sentence in an ordinary case of armed robbery, where the accused was carrying a knife or other dangerous weapon which he displayed to his victim, should normally be five years.”  There is no reason whatsoever in the instant case not to adopt five years’ imprisonment as the starting point for the fourth charge.  That the defendant has committed this serious offence under influence of a dangerous drug can hardly amount to a mitigating circumstance.  For the offence of robbery, taking into account his guilty plea, the defendant is sentenced to 40 months’ imprisonment.

15.The court agrees that the first to the third charges do share the same factual origin, justifying a consideration of a concurrent sentence, either in whole or in part, for the three offences.  The court is unable to see how those three offences and the robbery charge can be said to be connected, causally or logically.  Applying the totality principle, it is ordered that the sentences for the first and the third charges be served concurrently, resulting in a concurrent sentence of eight months’ imprisonment for the two offences.  Four months of the concurrent sentence for the first and the third charges are to be served consecutively to the 16 months’ imprisonment in respect of the second charge, making a total sentence of 20 months for the three offences.  It is ordered that the 20-month sentence for the first three charges is to be served wholly consecutively to the 40 months’ imprisonment for the robbery offence in the fourth charge.  The final sentence for the four offences is one of 60 months’ imprisonment.

16.Nothing in the defendant’s personal background and the circumstances in which the offences were committed would call for any further discount in sentence.

17.In view of the overall culpability of the offences concerned, an effective global starting point for the four charges of seven and a half years’ imprisonment is, in the court’s judgment, warranted.  In addition, it is the court’s view that the final sentence of 60 months’ imprisonment has allowed for a meaningful discount from the court’s jurisdictional limit of seven years (see HKSAR v Li Yan[8] and HKSAR v Wong Ngon Ching[9]).

Conclusion

25. For the offences in the four charges of which he stands convicted, the defendant is sentenced to five years’ imprisonment.

26. In addition, on account of the aggravating features identified above, in connection with the second charge, the defendant is disqualified from driving all types of vehicles in Hong Kong for a period of 18 months as from the date of his sentence[10]; and for the third charge, he is disqualified – likewise – for 18 months, effective as from the date of his conviction[11].

27. Finally, it is ordered that the defendant do, within the three months of his discharge from prison, attend and complete at his own costs a driving improvement course.[12]