HKSAR v. Chow Kuen Fung and Another

DCCC 650/2017

[2018] HKDC 295

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 650 OF 2017

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Reasons for Sentence

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1.The two defendants have pleaded guilty to a single joint charge of taking a conveyance without authority, and the 1st accused has entered pleas to a further five offences involving the taking of another vehicle without authority; obtaining by deception, which involves obtaining fuel for that vehicle; and then offences that occurred consequent upon his driving of that vehicle, namely driving it whilst disqualified, using the vehicle without third party insurance, and then carelessly driving that vehicle.

2.The facts of these offences have been agreed. As far as the 1st charge, which both defendants face, a charge of taking a conveyance without authority, we know that on 8 November 2016 a light goods vehicle was left in Yuen Long, and on the following morning was found missing and reported to police.  The vehicle was located some just over a kilometre away from where it had originally been parked, and the CCTV of the area disclosed the 1st and 2nd defendants, in the early hours of the morning of 9 November, pushing the vehicle along a road for about four minutes, the 1st defendant steering the vehicle through an open window and the 2nd defendant following behind as a lookout and helping to push the vehicle.  They did this for some 150 metres and then the 1st defendant got into the vehicle.  They continued pushing it for a short distance and then abandoned it.

3.They both admit their role in doing that.

4.The next series of offences concern the 1st defendant alone, and they originate with the taking of another vehicle on 20 May 2017, some six months later.  The person who was assigned the vehicle, which is private car, was a manager of the Argos Bus Services Company, and on 19 May he had left the car parked at a metered parking space in Sheung Shui in the New Territories.  When he returned on 20 May, he found that the vehicle was missing, and again a report was made by him to police.  The car was located, together with the 1st defendant inside it, on 21 May 2017. It was found to be parked at a junction in Tin Shui Wai in the New Territories.  The defendant appeared to be asleep, and the car was moving forward, and it crashed quite slowly into a set of railings.  There was found to be some tampering to the ignition.  And the defendant’s traffic record was looked at, and it was found that he was already at that time suspended from driving until 21 December 2018.  Naturally there was no third party insurance effective for that vehicle and the defendant would not have been permitted to drive it.

5.There was a search of the vehicle and various tools were found which could be used to prise parts of the vehicle.

6.The prosecution or the police also disclosed that a further offence had been committed in relation to that vehicle in relation to the obtaining of some fuel.  The company has what is known as a Caltex Star Card which is used for purchasing fuel for their vehicles.  It is a form of membership card where a discount is provided on the purchase.  Actually, in total, a sum of some $690‑odd of fuel was found to have been purchased using the card.  With the discount, that is about $572, and the prosecution’s allegation, which the defendant has admitted, is that he had refilled the vehicle using the membership card, which was eventually paid by the Argos Bus Company.

7.The defendant made some admissions under caution.  He said he had been given the private car to drive.  At that time he was denying being at the gas station to use the Caltex Star Card and also denied any knowledge of the items found in the car, but he did obviously know his driving licence was suspended.

8.As far as the defendants’ backgrounds are concerned, we can see that from the antecedents records and statements that have been provided by the prosecution.  The 1st defendant is now aged 33 and had been educated such that he went to university, but dropped out of that while studying.  The defendant’s criminal record is extensive and concerns drugs, but largely is concerned with his use of motor vehicles.  He is described in mitigation as a driving fanatic.  Clearly he has an undue interest in driving vehicles that has led him into serious criminality in relation to the driving of those vehicles.  In 2004 he started off with what was described as drunk driving and driving whilst disqualified; since then a number of offences involving dangerous driving, driving with excess alcohol, driving whilst disqualified, and the consequent offences of using a motor vehicle without being insured for third party risk; most recently, in 2015, being convicted of a series of offences involving driving whilst disqualified and dangerous driving and using a motor vehicle without third party risk, leading to sentences of imprisonment of up to 8 months’ imprisonment and a disqualification from driving of 3 years, which was still in force when these offences were committed and will still be in force until December of this year.

9.As far as the 2nd defendant is concerned, he is also aged 33, educated to Secondary 5 level, been employed as a car cleaner. His criminal record shows offences for possession of dangerous drugs, for which he has been sent to a drug addiction treatment centre, and some offences such as going equipped for stealing.

10.Turning back to the 1st defendant, there is one relevant conviction which has been pointed out to me besides the motoring convictions, and that is an offence in 2015 of taking a conveyance without authority, and so in respect of the first two offences, he faces these as a repeat offender, which is obviously an aggravating factor in sentencing; a further aggravating factor being that he committed the offences whilst on bail for the 1st offence.

11.I turn to sentencing of both defendants. Clearly, the 1st defendant faces the most extensive sentencing exercise. He has pleaded guilty and has indicated the plea in sufficient time, so he is entitled to a full one-third discount from whatever starting point for sentence I take.

12.Dealing with the first two offences for the 1st defendant, those of taking a conveyance without authority, there is no operative guideline for this offence, but generally, sentences of imprisonment will be imposed for this offence.  I am asked to take into account in relation to the 1st charge that this was only a relatively brief taking of the vehicle. They clearly could not start the vehicle, and abandoned it some one kilometre away from where it was originally taken.

13.In respect of the 2nd offence, of course, the defendant was in possession of the vehicle obviously for a longer period and had driven it and obtained petrol for it, so it is a more serious form of that offence.

14.As far as the 1st defendant is concerned, in determining the starting point for sentence for him on that offence, I take into account in respect of that offence that he was a repeat offender.  When I take a starting point for sentence then I will add in, to determine the starting point for sentence for the 1st defendant, the aggravating feature that he was a repeat offender in respect of that offence.  I would normally have taken a starting point of 9 months’ imprisonment for that offence.  The aggravating factor means I will in fact take a starting point for sentence of 12 months’ imprisonment.

15.After deduction for a plea of guilty, that leads to a sentence on Charge 1 of 8 months’ imprisonment in respect of the 1st defendant.

16.The 2nd defendant I will deal with, as this is a joint charge.  In respect of him, this is his first offence of taking a conveyance without authority.  I will take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for his plea of guilty.

17.I turn now to the other offences that the 1st defendant faces.  He faces a 2nd offence of taking a conveyance without authority.  There are two aggravating factors in respect of this offence:  the fact that it was committed whilst he was on bail, and the fact it is again a repeat offence.  That means, adding in those two aggravating factors to the normal starting point, it leads to a starting point for sentence of 15 months’ imprisonment, leading to a deduction of one‑third to a sentence of 10 months’ imprisonment on that offence.

18.The 3rd offence involves an obtaining by deception by the 1st defendant of, effectively, the petrol in the car, an offence of dishonesty, and I will take a starting point of 6 months’ imprisonment and reduce that to 4 months’ imprisonment for the defendant’s plea of guilty.

19.The 4th and 5th offences are firstly, driving whilst disqualified, and then, fifthly, using a motor vehicle without third party insurance.  Again, both of these offences are repeat offences for this defendant.  What I shall do in respect of each of these offences is take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for the plea of guilty, and in respect of those, also order a disqualification from driving for 3 years.

20.The 6th offence the defendant faces is one of careless driving.  I shall take a starting point of 3 months’ imprisonment and reduce that to 2 months’ imprisonment for his plea of guilty.

21.I have to consider what the final overall sentence should be for the 1st defendant.  These offences, save for the last three, were committed on separate occasions and can be served entirely consecutively, but if I did that, then of course it would, in my calculation, lead to an excessive sentence.

22.What I shall do:  I shall indicate that the sentences should be served as follows.  What I seek to achieve is an overall sentence of 21 months’ imprisonment.  I shall achieve that as follows.  I am going to order, as far as the 2nd offence is concerned, 7 months of the 10 months’ imprisonment should be served consecutively to the 1st offence.  In respect of the 3rd offence, I am going to order that 3 months of that sentence be served consecutively to the 1st and 2nd offences.  In respect of the final set of offences, which is 4, 5 and 6, they will be served concurrently to each other but consecutively by 3 months to the 1st to 3rd offences, and that leaves an overall total of 21 months’ imprisonment.

COURT: That is somewhat complicated. Can you tell me if you follow that calculation?

MR CHOI: Yes, we follow it.

COURT: It is a little bit complicated, but it leads to a final sentence of 21 months’ imprisonment. There is also a disqualification from driving for 3 years which would operate from today, so the defendant must be aware, for the 1st defendant, there is a further disqualification, operating from today, for 3 years.