HKSAR v. Choy Wai Shing

DCCC 68/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 68 OF 2016

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Reasons for Sentence

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1.This defendant has pleaded guilty to four charges:- Charge 1 is a theft of a motor vehicle between 31 October 2015 and 3 November 2015; charge 2 is using a marking on a vehicle with intent to deceive, here replacing the original number plates with fake number plates; charge 3 is driving without a valid driving licence, the vehicle being the same motorcycle stolen, and lastly charge 4 is using a motor vehicle without third party insurance.

2.The owner of this motorbike parked his property near his home after work on 31 October.  He discovered it missing several days later on 3 November.  He could not find it but had to hurry to work and reported it to the Police later that day.  He used his motorbike for work and it was valued at about $20,000. 

3.On 20 November, the Police found his vehicle under a flyover in the Sham Shui Po area.  It had false plates put on it.  The Police put the vehicle under observation.  Not long after, the Police saw the defendant near the motorcycle.  He put on a glove, carried his rucksack on his back and then put on a motorcycle helmet.  He mounted the motorbike and clearly manoeuvred it to face the road.  He was obviously about to drive away.  At that moment the Police stopped him.  He was then arrested. 

4.Under caution the defendant made a full admission.  He told the Police that he had stolen it in late October in Shatin area for his own use.  He told the Police under caution that he had to tamper with the ignition in order to steal it.   He changed the number plates to avoid detection and had driven the vehicle many times.  He told the Police that he had no driving licence.  The bike was obviously returned to the victim and the damage costs to repair the damages made by the defendant add up to about $3,000.

5.The defendant is 47 years old, married, and at the time of the offence was working at a transportation worker earning about $7,000 a month.  He had no fixed abode and was living under the flyover with the motorbike. 

6.The defendant has over 70 previous convictions obtained in 39 court appearances.  The first conviction dates back to when the defendant was only 17 years old.  It was a dangerous drug conviction and since then he has other drug convictions.  He is obviously a long-term drug addict. Since 17 he has spent most of his life in and out of prison.  He has 30 convictions for theft and those include stealing vehicles.  He has five previous convictions for driving without a valid licence.  He has six previous convictions for driving without third party insurance and one conviction of driving whilst disqualified. 

7.The defendant is a persistent nuisance and a constant danger to all road users, other drivers and pedestrians.  The defendant has never held a substantive driver's licence.  Despite many terms of imprisonment, he continues to commit similar offences.  He is clearly not deterred in any way. 

8.In his last court appearance in District Court Case 53/2014 I see from the Reasons for Sentence that the starting point was increased for the theft of a motorbike for his recidivism but that clearly did not stop the defendant.  Six months after his release from that term of imprisonment he has committed exactly the same crimes in this case.

9.I have had a letter from the defendant expressing his remorse, asking for leniency and promising that he has decided to turn over a new leaf and not commit any further offences.  However, I noticed in his last District Court case the defendant made exactly the same promise, so I treat his letter with great scepticism.  The only good mitigation today is the defendant's plea of guilty.  Mr Davies has said all he can on behalf of the defendant. 

10.There is no tariff for the theft of a vehicle. I will consider the value of the vehicle, the facts in which it was stolen, the damage caused to the bike and the nuisance to the owner who used the bike to travel on a regular basis. 

11.Defendant, please stand up.  I would normally for charge 1, theft of the bike, take a starting point of 2 years and 6 months.  However, because of the defendant's persistent re-offending and posing a constant danger to road users, I will add a further 6 months to that starting point.  The starting point for charge 1 will be one of 3 years' imprisonment.

12.For charge 2, I take a starting point of 18 months' imprisonment.

- For charge 3, I take a starting point of 6 months' imprisonment.

- For charge 4, I take a starting point of 12 months' imprisonment.

13.The defendant pleaded guilty, he is entitled to a discount of one-third.  After that discount is applied;-

For charge 1 the defendant is sentenced to 2 years' imprisonment.

Charge 2, the defendant is sentenced to 1 year imprisonment.

Charge 3, the defendant is sentenced to 4 months' imprisonment.

For charge 4, the defendant is sentenced to 8 months' imprisonment and for charge 4 the defendant is disqualified with effect from today for 3 years from driving any class of vehicle.

14.I have considered the totality principle and the dates of the offences as well as the nature of the offences and the connection to charge 1, the theft of the vehicle.  After considering those factors, I order that 6 months of charge 2 be served consecutively to charge 1 and the balance concurrently.  I order that charges 3 and 4 be served concurrently to charge 1.

15.Therefore the total sentence will be one of 2 years and 6 months' imprisonment.