HKSAR v. Mak Mun Fai

DCCC 377/2020

[2020] HKDC 687

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 377 OF 2020

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REASONS FOR SENTENCE

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1.The defendant, a 41-year-old man who has never ever had a driving licence, stole two motorcycles from the streets within a space of 7 weeks for his own use.

2.On the second occasion, he even removed the vehicle licence and number plate of the first stolen bike (It is worth $41,800) before abandoning it and then put them onto the second stolen bike (It is worth $36,000).

3.On the first occasion (17 November 2019), its rider left his bike (the first stolen bike) at the junction between Shing Kai Road and Wang Kwong Road; a few days later, its owner returned to fetch it only to find it missing. A report was made to the police.

4.About 7 weeks later on 4 January 2020, the owner parked his bike (the second stolen bike) outside at Hang King Shopping Arcade, Wing Fong Road, and by the time he returned on the following day, the bike was gone already. The owner then went to the police to report it.

5.A few days later on 9 January 2020, police discovered the second stolen bike on the pavement outside a hotel in Kawi Chung. Checking with the CCTV footage of the hotel, police found that the defendant was the guest of the hotel who had parked the bike there hours before.

6.Following the CCTV lead, the police were able to find out where the defendant was staying at the hotel. Having obtained a search warrant for his room, the police paid him a visit later in the day.

7.When police got there, they found the defendant and some drug paraphernalia, i.e. a glass bottle and four glass tubes with a bulb open end in the room. Despite a subsequent more thorough search by a police dog unit, the police could not find any drugs in the room. When asked for his ID papers, the defendant could not produce any.

8.He told the officers that the apparatus described in the preceding paragraph was for taking “ice”. Regarding the bikes, he made a full confession to the police that he took them away for his own use; before abandoning the first bike in Yuen Long areas, he removed its vehicle licence and number plates and fixed them on the second bike.

9.As is clear from his confession, the defendant, who had never held any driving licence, had been riding the bikes since they were stolen, so there are at least 3 charges associated with each of the theft of the bike –

1)- theft of the bikes (charges 1[1] & 4);

2)- driving without a valid driving licence (charges 2[2] & 5);

3)- using a vehicle without third party insurance (charges 3[3] & 6).

10.As he had put on the second stolen bike vehicle licence and number plate of the first stolen bike – these acts are deceiving – that explained why he faced two more charges:

1)- using marking on a vehicle with intent to deceive (charge 7[4]);

2)- using vehicle licence on a vehicle with intent to deceive (charge 8[5]).

11.Additionally, he had no ID card on him and was found in possession of drug paraphernalia, he faced another two charges:

1)- possession of apparatus fit and intended for inhalation of a dangerous drug (charge 9[6]);

2)- failure to produce proof of identity (charge 10[7]).

12.The defendant pleaded guilty before me to all 10 charges.

13.Being no stranger to the court, the defendant has amassed 16 prior convictions in the past 23 years – mainly to do with drugs and dishonesty offences. His first conviction is theft from vehicle in 1997 for which he was put on probation, while his last conviction is drug trafficking in 2016 for which he was sent to prison for 4 years.

14.There is no traffic record for the defendant for he has never held a driving licence before.

15.In mitigation, the court heard that the defendant was born in the Mainland and came to settle in Hong Kong in 1995; he is married with no children.

16.He used to be a waiter at a Chinese restaurant earning about $15,000 a month but was sacked in May 2019 due to social disturbances, and thereafter he could only do part-time waiter with a salary of $500 a day, and at the time of arrest, he was out of job.

17.In his letter to the court, the defendant expressed remorse for what he did and told the court that his wife, a diabetes patient, needed to go to hospital very often for insulin injection, he was worried sick about her doing all this on her own.

18.Counsel for the defendant, Miss Ma, said that the defendant had learned how to drive a motorcycle; though without a licence, he was confident that he could handle a motorcycle on the road without problems. He used the first bike to go to work but when he stole the second bike, he was out of job and only used it to visit friends. He changed the vehicle licence and number plate of the second bike in order to avoid being caught.

19.Defendant had been using ice for some time, Miss Ma continued, the apparatus found was used by him to take ice.

20.Miss Ma submitted that there was no accident on the days when the defendant used the bikes, and the theft of a motorcycle is less serious and would attract a lower starting point than that of the theft of a motor vehicle. She cited the case of Yeung Chi Wa CACC 224/2017 in which a starting point of 3 years for the theft of a taxi was approved by the Court of Appeal.

21.It is only fortunate that no accidents occurred as a result of the defendant riding a motorcycle on the road, I think it is a matter of time that will happen unless he is deterred from doing so. 

22.Confident though he was, he was not qualified to ride a motorcycle without first passing a competent test; the law here is to protect the public at large – other road users. The consequences following an accident in defendant’s situation could be dire – the victim could be maimed or even killed with the likelihood of no compensation at all. The defendant’s behaviour is totally irresponsible. 

23.Given the facts of the case, for the theft of the motorcycle, I would take 30 months as the starting point; 3 weeks for driving without licence[8]; 3 months for driving without insurance[9]; 3 months for the deceiving offences involving the vehicle licence[10] and number plate; 6 months for possession of drug paraphernalia. For the last charge of having no proof of ID on him, I think a fine will suffice to dispose of the matter.

24.Insofar as mitigation is concerned, apart from his guilty pleas, there is not anything of substance. Discounting one-third for the timely pleas, the individual starting points are reduced as follows:

Charge 1 – 20 months;

Charge 2 – 2 weeks;

Charge 3 – 2 months;

Charge 4 – 20 months;

Charge 5 – 2 weeks;

Charge 6 – 2 months;

Charge 7 – 2 months;

Charge 8 – 2 months;

Charge 9 – 4 months;

Charge 10 – fine of $500

25.Taking into account the totality principle, I order that the term of charge 1 be run consecutively to 6 months of charge 4, one month of charge 7, and 3 months of charge 9, the rest are concurrently. The total term is one of 30 months’ imprisonment.

26.There being no reasons for any further reduction in sentence, the defendant is therefore sentenced to 30 months’ imprisonment.

27.Regarding disqualification, the offence of driving without insurance carries a mandatory disqualification unless there are special reasons for not doing so, while section 69 of the Road Traffic Ordinance gives the court the discretionary power to ban the offender from driving for the offence of stealing a motor vehicle.

28.Miss Ma has not put forward any reasons not to disqualify her client, I order the defendant to be banned from driving (all classes of vehicle) for a period of 4 years for the theft of the motorcycle (charges 1 & 4) and a period of 12 months for driving without insurance (charges 3 & 6). All periods are to run concurrently. The total ban is one of 4 years.

29.The defendant is given 14 days to pay the fine; in default, he is to serve a term of 7 days instead which is to run consecutively to his existing term.