HKSAR v. Hsu Lung Kiu

DCCC 532/2018

[2018] HKDC 1401

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 532 OF 2018

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 3 counts of “theft”, contrary to section 9 of the Theft Ordinance, Cap 210 (charges 1-3), one count of “forgery of documents”, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374 (charge 4), two counts of “driving without a valid driving licence”, contrary to section 42(1) and (4) of the Road Traffic Ordinance (charges 5 and 7) and two count of “using a motor vehicle without third party insurance”, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (charges 6 and 8).

Facts

2.Mr Mohammad was the regular user of a motorcycle with registration mark TZ7137 as particularized in charge 1 (“Motorcycle 1”).  The registered owner of Motorcycle 1 was Mr Mohammad’s brother.  Mr Mohammad was the only key holder of Motorcycle 1.

3.At around 0030 hours on 1 October 2017, Mr Mohammad parked Motorcycle 1 outside Yiu Lok House, Yiu Tung Estate, Sai Wan Ho (“Location 1”). When he returned to Location 1 at around 1400 hours on the same day, he found Motorcycle 1 missing.  The case was reported. (charge 1)

4.At around 2230 hours on 9 October 2017, Mr Mohammad’s brother found a motorcycle resembling Motorcycle 1 but with registration mark PK1912 near Foon Yan House, Yiu Hing Road.  Mr Mohammad later went there and confirmed the motorcycle was indeed Motorcycle 1.  He thus reported to the police.  On 10 October 2017, Mr Mohammad repossessed Motorcycle 1 after police enquiries.

5.At around 0001 hours on 3 November 2017, Mr Mohammad parked Motorcycle 1 near Location 1.  At around 1245 hours on the same day, Mr Mohammad returned to Location 1 and found Motorcycle 1 missing.  He reported to the police. (charge 2)

6.At around 1000 hours on 13 November 2017, Mr Lai found the licence plate and licence document of his motorcycle bearing registration mark SU9835 (“Motorcycle 2”) missing.  He last saw the missing items on 10 November 2017. He thus reported to the police.  (charge 3)

7.At around 0200 hours on 26 November 2017, a team of police officers were on duty at Shau Kei Wan when they spotted a motorcycle (with cover) bearing the registration mark SU9835 (later confirmed to be Motorcycle 1) with signs of pry marks on it.

8.At around 0610 hours on the same day, the defendant approached Motorcycle 1 and opened its cover.  When the defendant was intercepted, he already wore a helmet and was about to drive away by reversing the motorcycle. 

9.Upon enquiries, the defendant stated that he stole Motorcycle 1 at the beginning of the month near Yiu Hing Road.  He also said that the licence plate and the licence document was stolen at around 10 November near Hung To Road, Kwun Tong.

10.When cautioned for the offence of “Taking Conveyance without Authority”, the defendant stated “Ah Sir, the YAMAHA motorcycle was stolen by me at the beginning of November at Yiu Hing Road near Yiu Wah House for fun, and I just used it to commute to work.  Give me a chance”.

11.Mr Mohammad subsequently arrived at the scene and confirmed the motorcycle was indeed Motorcycle 1. 

12.The Transport Department confirmed there were no records of any driving licence registered under the defendant’s HKID number.

13.The estimated value of Motorcycle 1 is HKD $28,000.

14.In subsequent cautioned interviews, the defendant stated, inter alia, the followings:-

(a) for charges 1-4, he stated that he stole Motorcycle 1 twice. The first time was at around 0600 hours on 1 October 2017 outside Location 1. He stole it as he was about to go to work in Kwun Tong and he saw the ignition key was still in Motorcycle 1. At around 1600 hours on 9 October, he parked Motorcycle 1 near Foon Yan Court, Yiu Hing Road and kept the ignition key. He stole Motorcycle 1 again at around 0600 hours on 3 November near Location 1 as he still had the ignition key of the motorcycle and drove it to work in Hung To Road, Kwun Tong. When he reached Hung To Road on 3 November, he took away the licence plate and licence document of Motorcycle 1 and disposed them. He stole the licence plate and licence document of SU9835 and installed it on Motorcycle 1 on 10 November;

(b) for charges 5 and 7, he admitted he drove Motorcycle 1 without a licence on 23 November 2017 and on 26 November 2017;

(c) for charges 6 and 8, he admitted that he did not buy third-party insurance.

Mitigation

15.The defendant is aged 43, married with a daughter aged 14.  His wife left the family some time ago.  His daughter has been taken care of by Po Leung Kuk since she was aged 3.  Prior to the arrest, he worked as delivery worker earning about HK$650 per day.  He used to give HK$3,000 to his mother for monthly living expenses.  He has 5 previous conviction records, all of which are not similar to the present offences.

16.In mitigation, it was submitted that the main offences were charges 1 and 2 which involved theft of the same motorcycle on 2 separate occasions.  It was submitted that there was no premeditation of the theft, the value of the motorcycle was low and the owner suffered no loss as the motorcycle was recovered.  It was further submitted that some charges arose from the same incident and related to each other, namely, charges 3 and 4, charges 5 and 6 and also charges 7 and 8.  For the incidents relating to driving without licence, it was submitted that no accident, injury or damage was caused.  The driving incident in charge 7 only lasted for a very short period of time. Finally, it was submitted that the defendant was remorseful and the court was urged to consider the totality principle and impose partly concurrent sentences on those charges that related to each other.  There is no submission on disqualification.

Sentence

17.There is no sentencing guideline in respect of the offences in question.  In considering the sentence, I bear in mind the defendant has no previous conviction record similar to the present offences.

18.Theft of motorcycle is a serious offence which may cause substantial financial loss and considerable inconvenience to the owner.  It was stated that a starting point of 2 years would be appropriate (see HKSAR v So Pak Lun, CACC 276/2013).  Although the motorcycle was recovered in this case, I have no doubt that considerable inconvenience must have been caused to the owner.  In the circumstances, I consider the appropriate starting point for each of charges 1 and 2 is 2 years’ imprisonment.

19.For charge 3, theft of licence plate and document, I consider the appropriate starting point is 9 months. 

20.For charge 4, the offence of forgery of document, I consider the appropriate starting point to be 9 months. 

21.For the offences of driving without a valid licence, charges 5 and 7, I consider the appropriate starting point for each charge to be 3 months.

22.For the offences of using a motor vehicle without third party insurance, charges 6 and 8, I consider the appropriate starting point for each charge to be 6 months.

23.Given the defendant’s plea, he is entitled to the usual 1/3 discount and the sentences for all the charges are reduced as follows:

Charges 1 & 2: 2 years reduced to 16 months each

Charges 3 & 4: 9 months reduced to 6 months each

Charges 5 & 7: 3 months reduced to 2 months each

Charges 6 & 8: 6 months reduced to 4 months each

24.Taking into consideration the totality principle and that some of the offences arose from the same incident, I consider a total sentence of 25 months is sufficient to reflect the criminality of the defendant’s act.  The sentences are to run as follows:

Charge 1: 16 months

Charge 2: 3 months of the sentence to run consecutive to Charge 1

Charge 3: 2 months of the sentence to run consecutive to Charges 1-2

Charge 4: 2 months of the sentence to run consecutive to Charges 1-3

Charges 5 & 6: sentences of the two charges to run concurrently, 1 month of the combined sentence to run consecutive to Charges 1-4

Charges 7 & 8: sentences of the two charges to run concurrently, 1 month of the combined sentence to run consecutive to Charges 1-6

Disqualification

25.Disqualification is mandatory for charges 6 and 8 and discretionary for theft of vehicle for charges 1 and 2. Such order is “forward-looking and preventive”.  In considering the appropriate length of disqualification, the length of imprisonment should be taken into account, otherwise the order may serve no real purpose. 

26.In the light of the total term of imprisonment that the defendant is going to serve and to make the disqualification meaningful, I order a 4-year disqualification in respect of all classes of vehicle for charges 1 and 2 pursuant to section 69(1)(c) and (2)(b) of the Road Traffic Ordinance, Cap 374. 

27.For charges 6 and 8, I order a 3-year disqualification in respect of all classes of vehicles respectively pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

28.To sum up, the disqualification order for charges 1, 2, 6 and 8 are to run concurrently from date of conviction.