HKSAR v. Cheung Kin Lung

DCCC 1082/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1082 OF 2015

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REASONS FOR SENTENCE

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1.The defendant was charged with taking conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210; Forgery of a document, contrary to section 111(1)(a) of Road Traffic Ordinance, Cap 374; Without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272; Possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134; Failing to surrender to custody, contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

2.The defendant pleaded guilty and admitted the facts, he was convicted accordingly.  

Summary of facts

3.The private car bearing registration number TF7544 was purchased by the friend of the defendant on 16 February 2015.  As the friend did not have money for the vehicle’s third party insurance and licence fee, he just parked and left the vehicle on the roadside with its last licence containing its last registration number RT330 displayed on the front windscreen.  The defendant was present when his friend put the key of the vehicle at the left rear wheel of it before leaving.

4.At around 2328 hours on 13 May 2015, the defendant was seen driving the vehicle TF7544 with a passenger on board.  As the defendant was acting furtively after he parked and alighted from the vehicle, he was intercepted by police.  Later he was found to have in possession 7 plastic bags containing 22.8 grams of a solid containing 14.8 grams of ketamine. (Charge 4)

5.Under caution the defendant confessed that sometime in February 2015, he drove away the vehicle TF7544 without the consent of the owner, he had used the vehicle 2 to 3 times to practice his driving skill (Charge 1).  Further, he altered the information on the expired vehicle licence by black ink, causing the original expiry date 26/01/2013 to read 26/01/2015 and the original registration mark RT330 to read RT880 to avoid detection and prosecution (Charge 2).  He drove the vehicle TF7544 without third party insurance (Charge 3).

6.On 8 January 2016, the defendant indicated his plea of not guilty, the case was adjourned to 15 April 2016 for trial.  The defendant was granted court bail until 15 April 2016, but he failed to surrender to custody and was absent from his trial.  A warrant of arrest was issued against him on the same day.

7.The defendant was re-arrested on 22 December 2016 during a stop and search by the police.  The defendant did not provide any reasonable cause for failing to appear in court on 15 April 2016 (Charge 5).

Mitigation

8.The defendant aged 27, single with clear criminal and traffic record.  The defendant obtained his learner driving licence on 16 October 2014 and the licence expired on 15 October 2015.  The defendant lives with his family but the father has moved out after divorced with the wife.  The defendant is a qualified welder on daily wages.  Though he had no savings, he made regular family contribution to his mother.  He has a stable relationship with his girlfriend. 

9.The whole family and his girlfriend attend court to give him support.  The parents wrote a mitigation letter for the defendant and submitted that they noticed the defendant has reflected and regretted for the wrong he committed and urge me to allow their son a chance of rehabilitation. 

10.The defendant also in his mitigation letter states that he feels sorry that his cowardly behaviour has broken the hearts of his family but since his remand upon his re-arrest he has reflected and learns to face his responsibility with courage, he takes his time to improve himself by reading, he looks forwards for his rehabilitation upon release and urges the court for leniency.

11.The defendant is not able to surrender his driving licence, he has misplaced the licence and failed to locate it again. The defendant took the friend’s vehicle to practice his driving skill without an instructor, Mr Fung representing the defendant agreed that this was a traffic offence but urged the court to accept that it was not a serious criminal offence as such and to take a lower starting point in considering the sentence.

12.Mr Fung submitted that according to his instruction, at the material time, the defendant drove out to have some food at Tin Ching Estate, there he met a drug peddler who sold him the dangerous drug in question.  On his way home, the defendant met his friend Lam and gave him a ride home.  The drug was for the defendant’s own consumption.

13.For the traffic offences including the forgery of the vehicle licence and the absconding offence the defence urged me to consider a fine.

Sentence

14.There is no tariff for taking conveyance of vehicles without authority.  This offence could be committed in a wide range of scenario ranging from taking other’s car for a joy-ride at one end to taking other’s car with the participation of a serious crime at the other end.  The maximum penalty upon a conviction on indictment is seven years.

15.In The Queen v Tam SimonHCMA 489 & 490/1966, the appellant pleaded guilty to a total of 3 counts of taking conveyance of vehicle without authority (TCWA) and other offences in these two cases.  He was sentenced to 6 months’ imprisonment to the count of TCWA in HCMA 489/2016 and sentenced to 12 months’ imprisonment for the other two counts of TCWA to run concurrently in HCMA 490/1966.  The charge in HCMA 489/2016 can be described as a joy ride while the other two was for some other criminal purpose.  The appellant court considered that the sentence of 6 to 12 months imposed after a plea could not be regarded in any way as wrong in principle or manifestly excessive.

16.Under caution, the defendant said he took the vehicle in February 2015 to practice his driving skills 2 to 3 times prior his arrest approaching mid-night on 13 May 2015.  The defendant was not a qualified driver, he was a learner driver, he required to have an instructor next to him, every time he drove TF7544 out he was committing traffic offences.  On 13 May, in particular, he drove out to have food as if he was a qualified driver and gave a lift to a person on his way back.  I consider a starting point of 10 months is appropriate.

17.A person committed forgery of a vehicle licence by altering the information thereof is liable to a fine of $10,000 and to imprisonment for 3 years.  The defendant altered the registration mark and the expiry date of the vehicle licence to avoid detection and prosecution, I consider a starting point of 2 months’ imprisonment is appropriate in the circumstances.

18.A person used a motor vehicle without third party insurance is liable to a fine of $10,000 and to imprisonment for 12 months and shall be disqualified, unless with special reasons, from holding or obtaining a driving licence for a period between 12 months and 3 years.  No evidence of actual damage caused to any person or property, I consider a fine of $7,000 (subject to discount of his plea of guilty) would be sufficient to reflect the criminality.  The defendant had gainful employment prior to his arrest, I would allow him 3 months upon his release from custody for the present case to pay the fine, in default he will be sentenced to one month’s imprisonment. 

19.As to disqualification, I referred myself to the discussion of the Court of Appeal in R v Cooksely [2003] 3 ALL ER 40 that the purpose of a disqualification order is forward looking and preventative rather than backward looking and punitive.  The mandatory disqualification provision provided that the period should not be less than 12 months (cf the maximum sentence of imprisonment of the offence), this serves as an additional measure to remind the offender upon release from custody the risk that he has caused to the public at large, as immediate custodial sentence is inevitable in the present case, to let the disqualification have meaningful effect, the duration of the disqualification should be longer than the term of imprisonment, the defendant has been remanded since December 2016, further taking into account of possible remission for good conduct, in my view a period of 2 years is appropriate in the circumstances. 

20.A person who admitted to court bail failed to surrender to custody is liable to a fine of any amount and to imprisonment for 12 months.  In HKSAR v Lam Kin Chung CACC 27/2007, the defendant was granted court bail pending trial but he was absent from his trial on 25 April 1997.  He was re-arrested by Police on 18 September 2006.  The Court of Appeal upheld his sentence of 6 months’ imprisonment upon his plea of guilty.  In HKSAR v Yeung Kin Chai CACC 341/2008, the defendant was admitted to court bail pending his trial on 29 and 30 October 1997, he attended the first day but not thereafter.  The defendant was re-arrest in May 2008.  He was sentenced to 6 months’ imprisonment and the sentence was ordered to run consecutive with the other charge.  This sentence was not interrupted on appeal.

21.The defendant was absent from his trial including a charge of trafficking in dangerous drugs on 15 April 2016 and he was re-arrested on 22 December 2016.  Should he be convicted upon the trafficking charge he would be sentenced in term of years.  The defendant was put on wanted list since the issue of the warrant of arrest and when he could be re-arrested is a matter of chance.  The fact that the defendant was re-arrested instead of surrender voluntarily is a material factor.  I consider the appropriate starting point to be 9 months’ imprisonment.

22.Though the defendant claimed to be a drug addict on Ketamine but he has been remanded for more than 8 months and should be drug free during this period.  Further, he would be sentenced to more than 9 months for the other charges in the present case, in the circumstances I decided not to call for a DATC report before I sentence the defendant on possession of dangerous drug.

23.The usual starting point for a possession charge is between 12 months and 18 months with reference to the quantity involved. The dangerous drugs in the present case is 22.8 grammes of a solid containing 14.8 grammes of ketamine in 7 plastic bags.  This is not a small quantity, but this is the defendant’s first dangerous drug offence.  I consider and adopt a starting point of 15 months’ imprisonment.  The defendant claimed under caution that he consumed 7 to 8 grams of ketamine per day, that would mean 2 pack of the ketamine in question and the 7 packs would last for 4 days.  The defendant was carrying the dangerous drug home and he was living with his younger sibling but there is no other evidence suggest the younger sibling would have access to the drug, in the circumstances I would not enhance the starting point for any latent risk.

24.The defendant absconded for months before he was re-arrested, he has lost any entitlement to the maximum 1/3 discount for his guilty plea, he is now only entitled to a discount between 20% to 25% for Charge 1 to 4.  The defendant indicated his plea of guilty upon his re-arrest, I would allow him 25% discount on Charge 1-4.  The defendant would be allowed 1/3 discount on Charge 5.

25.I would allow a further deduction on Charge 1, Charge 2, Charge 4 and Charge 5 for the defendant’s clear record and reduce it to one of 6 months, 1 month, 10 months and 4 months respectively.  I do not consider there to be any mitigating factors called for further deduction.  All of the said four offences were of different nature and they were separate and independent incidents.  Further, I have considered the overall criminality and totality effect of the sentence.  I consider the sentence of each count in the present case should run consecutive to each other.

Order

26.Charge 1  sentenced to 6 months’ imprisonment;

Charge 2 sentenced to 1 month’s imprisonment;

Charge 4 sentenced to 10 months’ imprisonment;

Charge 5 sentenced to 4 months’ imprisonment;

all consecutive to each other, making a total of 21months.

Charge 3 fined $5,250, to be paid within 3 months from the release of the present case, in default one month’s imprisonment or until full payment of the fine, whichever is the shorter;

disqualified to hold or obtain any driving licence of all type of vehicles for a period of 2 years from the date of the order.

The defendant is warned that driving while disqualification is a serious offence and is liable for imprisonment.