HKSAR v. Wong Kam Ho

DCCC 958/2017 [2018] HKDC 1412 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 958 OF 2017 ____________   HKSAR     v     WONG KAM HO (D1) ____________ Before: HH Judge Dufton Date: 16 November 2018 Present: Mr Geoffrey Chang, counsel on fiat, for HKSAR Mr Kamlesh Sadhwani, instructed by Yip & Partners, assigned by the Director of Legal Aid for D1

Offences:	(1) (2) & (7) Theft (盜竊罪)
	(3) Making off without payment (不付款而離去)
	(4) & (8) Driving without a valid driving licence(駕駛時無有效駕駛執照)
	(5)& (9) Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車)

REASONS FOR SENTENCE

1.D1 pleads guilty to three charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 2 & 7); one charge of making off without payment, contrary to section 18C of the Theft Ordinance (charge 3); two charges of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[2] (charges 4 & 8) and two charges of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[3] (charges 5 & 9).

2.Full details of the offences are set out in the facts admitted by D1 on 14 November 2018.

Charges 1, 2, 3, 4 & 5 – theft of motorcycle SW 504; theft of number plate; making off without payment and driving without a valid driving licence and third party insurance

3.In summary at around 4:40 p.m. on 19 June 2017 the police recovered a motorcycle bearing registration number plate MG 615 under the bridge outside On Chiu House in Cheung On Estate.  The motorcycle had been modified by installing a button to enable the motorcycle to be started without using the ignition key.

4.The motorcycle belonged to Mr Mohammed Tufail and was valued at $9,000.  The registration mark of Mr Tufail’s motorcycle was SW504 (“V2”).  Mr Tufail had parked his motorcycle outside Shek Yi House, Shek Lei (II) Estate in Kwai Chung at around 10 p.m. on 2 June 2017.  The next morning Mr Tufail found the motorcycle missing.

5.The registration number plate MG 615 belonged to another stolen motorcycle (V3)[4].  The motorcycle belonged to Ms Lai Pui Yam, Joe.  Ms Lai parked her motorcycle in the parking space at Choi Hei Road, Ngau Tau Kok at around 8:30 p.m. on 1 June 2017.  At around 8:30 p.m. on 5 June 2017 Ms Lai found her motorcycle missing.

6.CCTV footage showed D1 driving V2 into Kwai Fong Car Park 1 at 8:04 a.m. on 5 June 2017 without using an Octopus card or resident card.  At around 3:30 p.m. the same day a security guard clamped V2, which was bearing the number plate of V3, because there were no records of monthly or hourly rental for V2.  

7.At around 4:15 a.m. on 7 June 2017 another security guard discovered that V2 was missing and the clamp had been removed and left on the ground.  CCTV footage showed D1 removing the clamp and driving V2 out of the car park at 1:42 that morning without paying the clamping fee of $320 and the parking fee totalling $697. 

8.D1 was arrested on 20 June 2017. In two video recorded interviews D1, inter alia, admitted that in early June he stole V2 from Shek Lei Estate by breaking the keyhole cover using pliers and hotwiring V2; he repainted V2; when driving V2 he discovered the number plate was missing and then found the number plate of V3 which he affixed on V2; and he parked V2 in a car park and on discovering the car had been clamped he broke the lock and removed the clamp. 

9.D1 also admitted he did not have a valid driving licence and said he did not know he needed third party insurance to drive a motorcycle.

Charges 7, 8 & 9 – theft of motorcycle TZ 7926 and driving without a valid driving licence and third party insurance

10.In summary at around 3 a.m. on 7 June 2017 Mr Lee Siu Ming parked motorcycle TZ 7926 outside On Chiu House, Cheung On Estate in Tsing Yi.  At 9 a.m. the same morning Mr Lee found the motorcycle missing.  The motorcycle belonged to Association Electrical Engineering Limited and was valued at $40,000 (“V1”).

11.CCTV footage captured two males entering Cheung On Estate at 5:03 a.m. on 7 June 2017 on one motorcycle and five minutes later at 5:08 a.m. two males leaving Cheung On Estate each riding a motorcycle.   

12.At around 2:10 a.m. on 19 June 2017 police officers on patrol in the car park of Phase II, Cheung On Estate intercepted and arrested Ng Lok Fung, Jerry (D2). 

13.On 21 June 2017 D1 led the police to recover V1.  In the video recorded interviews D1, inter alia, admitted that on a day unknown he stole V1 from outside Cheung On Estate with the assistance of D2, who helped him drive away V2 while he stole V1. 

14.V1 had also been modified by installing a button to enable the motorcycle to be started without using the ignition key.  V1 was also found to bear the number plate of a different motorcycle JE 1755 (“V5”).  In the video recorded interview D1 admitted that he stole V1 by using a pair of pliers to prize open the keyhole cover and hotwired V1 and taking V5’s number plate and vehicle licence which he used on V1 because he did not want others to find out that V1 was stolen. 

15.The police discovered that D2 had installed on his mobile phone an application which recorded all his telephone conversations including conversations on 6 & 7 June 2017 when D1 told D2 his motorcycle had been clamped and asked D2 to go to the car park and help him drive a motorcycle away and on 9 June 2017 when D1 told D2 to remind his friend to change the number plate of V2. 

16.D1 did not hold any driving licence at the material time, his learner licence having expired in 2016 and had no valid third party insurance.

Mitigation

17.In passing sentence, I take into account everything said on behalf of D1 by Mr Sadhwani together with D1’s mitigation letter.   I take into account D1 has a son aged 9, who is looked after by D1’s mother.  I take into account that although D1 has previously been sentenced to imprisonment he has no similar previous convictions.

18.Mr Sadhwani asks that I take into account D1’s frank admission and cooperation with the police, including leading the police to recover V1. 

Theft of vehicle

19.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[5]:

“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.”

20.In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic.

21.In HKSAR v Fan Chi Wai leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[6].   

22.Mr Sadhwani has also referred me to my reasons for sentence of D2[7] and in HKSAR v Lam Kai Man[8].

23.Each case depends on its own facts and circumstances.

Sentence

Charge 1 – theft of V2

24.Taking into account that the motorcycle is valued at $9,000; D1 repainted V2 and used a stolen number plate no doubt to avoid detection and that the ignition had been modified, I am satisfied the proper starting point after trial is 2 years’ imprisonment.

25.The traffic record reveals that D1 has never passed a driving test having only held a provisional driving licence which expired in 2016. The fact that D1 is not permitted to drive a vehicle is in my view an aggravating feature of the theft. Similarly having no third party insurance thereby placing all other road users at risk is also an aggravating feature of the theft.  In the circumstances I enhance the starting point for the theft by 3 months to 2 years and 3 months’ imprisonment.

26.Giving D1 credit for his plea of guilty he is convicted and sentenced to 1 year and 6 months’ imprisonment.

Charge 2 – theft of the number plate of V3

27.The prosecution accepting the claim made by D1 to the police that he found the number plate and did not steal the number plate from the motorcycle, I am satisfied the proper starting point after trial is 3 months’ imprisonment.

28.Giving D1 credit for his plea of guilty he is convicted and sentenced to 2 months’ imprisonment.

Charge 3 – making off without payment

29.Taking into account that the total amount unpaid was just over $1,000, I accept the submission of Mr Sadhwani this is not the most serious offence of making off without payment.  I am satisfied the proper starting point after trial is 3 months’ imprisonment.

30.Giving D1 credit for his plea of guilty he is convicted and sentenced to 2 months’ imprisonment.

Charges 4 & 5 – driving without a valid driving licence and third party insurance

31.Driving without a valid driving licence and third party insurance are serious offences, in particular where an offender has never passed a driving test.    

32.I am satisfied a starting point of 6 weeks’ imprisonment for driving without a valid driving licence is appropriate and 3 months’ imprisonment for using a vehicle without third party insurance.

33.Giving D1 credit for his pleas of guilty he is convicted and sentenced to 4 weeks and 2 months’ imprisonment respectively. 

Charge 7 – theft of V1

34.Taking into account that the motorcycle is valued at $40,000; the number plate was changed to avoid detection and that the ignition had also been modified, I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment.

35.I am satisfied a higher starting point is appropriate than that taken for D2 by reason that the role of D2 was very different to D1[9].

36.I also enhance the starting point by 3 months to 2 years and 9 months’ imprisonment by reason of the aggravating feature that D1 had no valid driving licence and no third party insurance.

37.Giving D1 credit for his plea of guilty he is convicted and sentenced to 1 year and 10 months’ imprisonment.

Charges 8 & 9 – driving without a valid driving licence and third party insurance

38.I am satisfied the same starting points for charges 4 & 5 are appropriate, namely 6 weeks’ imprisonment for driving without a valid driving licence and 3 months’ imprisonment for using a vehicle without third party insurance.

39.Giving D1 credit for his pleas of guilty he is convicted and sentenced to 4 weeks and 2 months’ imprisonment respectively. 

Totality

40.Mr Sadhwani submits that as all the offences were committed in a very short space of time concurrent sentences are appropriate.  I disagree.  In my view sentence must reflect that two motorcycles belonging to two different victims were stolen from two different locations on two different days. 

41.Having taken into account D1 used the stolen number plate to avoid detection in determining the starting point for the theft of V2 and driving without a licence and insurance in aggravation of the theft, I am satisfied concurrent sentences are appropriate for charges 1, 2, 4 & 5. 

42.Although the making off without payment can be said to be separate and distinct from the theft of the motorcycle, taking into account totality of sentence, I am satisfied a concurrent sentence is also appropriate. 

43.Similarly having taken into account the driving without a licence and insurance in aggravation of the theft of V1, I am satisfied concurrent sentences are appropriate for charges 7, 8 & 9.   

44.Taking into account the seriousness of the offences; two motorcycles were stolen; D1’s assistance in leading the police to recover V1 and D1’s personal circumstances, I am satisfied that a total sentence of 2 years and 8 months’ imprisonment properly reflects D1’s overall criminal culpability on the eight charges[10].

Disqualification

45.By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

46.Taking into account there are two separate occasions that D1 was using a motorcycle without insurance, I am satisfied that concurrent periods of 18 months’ disqualification are appropriate on charges 5 & 9.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today. 

47.The defendant is warned that after serving his prison sentence he will still be disqualified from driving.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.

48.D1 is sentenced as follows:

Charge 1 - 1 year and 6 months’ imprisonment;

Charge 2 - 2 months’ imprisonment;

Charge 3 - 2 months’ imprisonment;

Charge 4 - 4 weeks’ imprisonment;

Charge 5 - 2 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today;

Charge 7 - 1 year and 10 months’ imprisonment;

Charge 8 - 4 weeks’ imprisonment; and

Charge 9 - 2 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.

49.The sentences on charges 1, 2, 3, 4 & 5 are ordered to be served concurrent to each other and the sentences on charges 7, 8 & 9 are ordered to be served concurrent to each other with 14 months consecutive and 8 months concurrent to charges 1, 2, 3, 4 & 5.  The total sentence to be served by D1 is 2 years and 8 months’ imprisonment. 

(D. J. DUFTON) District Judge