HKSAR v. Lam Kai Man

DCCC 886/2017

[2018] HKDC 226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 886 OF 2017

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REASONS FOR SENTENCE

1.The defendant pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1].

2.Full details of the offences are set out in the facts admitted by the defendant on 5 February 2018.  In summary last year the defendant stole two motorcycles, one in January and one in June and also stole the vehicle licence and registration number plate of another motorcycle which he used on the motorcycle he stole in June.

Motorcycle JE 3210

3.At about 5 p.m. on 13 January last year Mr Chung parked his motorcycle JE 3210, valued at $20,000, at the rear lane near the junction of Wuhu Street and Marsh Street in Hung Hom.  About three hours later Mr Chung found his motorcycle missing. 

4.On 18 February the police found the motorcycle abandoned on Jordan Valley North Road in Sau Mau Ping.  Other than some scratch marks there was no other damage. 

Motorcycle RT 9868

5.At 7 p.m. on 7 June last year Mr Chiu parked his motorcycle RT 9868, at Tin Yat Estate in Tin Shui Wai.  The next day Mr Chiu noticed that the vehicle licence and registration number plate were missing. 

Motorcycle NY 758

6.At about 5:30 a.m. on 29 June last year Mr Fung parked his motorcycle NY 758, valued at $40,000, at the junction of Tai Po Road and Kweilin Street in Sham Shui Po.  At 11 p.m. the same day Mr Fung found his motorcycle missing.    

Arrest

7.At about 11:36 p.m. on 5 July last year the police intercepted the defendant near Pok Man House in Pok Hong Estate, Shatin when he approached a motorcycle bearing the vehicle licence and registration number plate of RT 9868.  Two keys were found on the defendant which could be used to start the motorcycle and open the storage compartment of the motorcycle. 

8.Police enquiries revealed the chassis number of the motorcycle was that of NY 758.

9.Under caution and in subsequent video recorded interviews the defendant admitted stealing both motorcycles and the vehicle licence and registration number plate of RT 9868.   

Mitigation

10.In passing sentence, I have taken into account the written and oral submissions of Mr Ng.

Theft of vehicle

11.There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[2]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

12.Mr Ng referred the court to the sentence in HKSAR v Lam Kai Chung[3] for both the appropriate starting point and totality of sentence.  The reasons for sentence being in Chinese sentence was adjourned for an agreed English translation to be prepared.

13.That translation is now available.  I have carefully considered the reasons for sentence in that case.  I need say no more than that in my view the individual sentences and total sentence imposed for what can be described as luxury motorcycles (Ducati, Harley Davidson and Triumph) was lenient.   In HKSAR v Fan Chi Wai[4] leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handing a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[5].

14.I disagree with the mitigation that the offences were opportunistic [6].  The theft of the licence and registration number plate which was used on the second motorcycle to avoid detection, whilst not sophisticated, shows a degree of planning and is an aggravating feature of the theft. 

15.Mr Ng submits that the facts of the theft of the first motorcycle are no different to that of taking a conveyance without authority, the motorcycle having been abandoned after the petrol in the tank had been used up[7]. I reject this submission.  I am satisfied when taking the motorcycle, which was not found until over one month after being taken, the defendant intended to use the motorcycle as his own regardless of the rights of the owner. 

16.Taking into account the value of the first motorcycle was $20,000, I am satisfied the proper starting point after trial for the theft of the first motorcycle is 1 year and 6 months’ imprisonment. 

17.A starting point may be increased where the defendant is a persistent offender.  The defendant has appeared in court on seventeen occasions amassing a total of thirty-two convictions, nine of which relate to dishonesty.  Although the last conviction for dishonesty was in 2011, the theft of the first motorcycle was committed within days of the defendant’s last discharge from prison[8].  I am satisfied by reason of the defendant’s persistent offending the starting point is to be increased by 6 months’ imprisonment to 2 years’ imprisonment.

18.Taking into account the value of the second motorcycle was $40,000 and the aggravating feature of stealing a vehicle licence and registration number plate from another motorcycle which were no doubt used to avoid detection, I am satisfied the proper starting point after trial for the theft of the second motorcycle is 2 years and 6 months’ imprisonment. 

19.Giving the defendant full credit for his pleas of guilty reduces the sentence on charge 1 to 1 year and 4 months and on charge 3 to 1 year and 8 months’ imprisonment.

Theft of a vehicle licence and registration number plate

20.I agree with Mr Ng the appropriate starting point is 12 months’ imprisonment[9].  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 2 to 8 months’ imprisonment.

Totality

21.Having taken into account the theft of the vehicle licence and the registration number plate and their use to avoid detection in determining the sentence for the theft of the second motorcycle, I am satisfied concurrent sentences are appropriate for charges 2 & 3. 

22.The theft of the two motorcycles having occurred on different days almost six months apart, consecutive sentences are appropriate for these two thefts. 

23.Mr Chan confirms that the only evidence of the theft of the first motorcycle is the confession of the defendant.  In HKSAR v Ma Ming[10] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

24.The Court of Appeal in HKSAR v Ngo Van Nam[11] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.

25.The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

26.Taking into account the seriousness of the offences; the defendant’s confession of the theft of the first motorcycle and the defendant’s personal circumstances, I am satisfied a total sentence of 2 years and 4 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges[12].  

27.The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 4 months with 8 months consecutive and 8 months concurrent to charge 3;

Charge 2 - 8 months concurrent to charges 1 & 3; and

Charge 3 – 1 year and 8 months;

28.The total sentence to be served is 2 years and 4 months’ imprisonment.