HKSAR v. Yuen Ka Kui and Another

DCCC 415/2020

[2021] HKDC 85

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 415 OF 2020

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REASONS FOR SENTENCE

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1.D1 pleads guilty to ten charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1-5, 7, 8, 11, 13 & 18); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[2] (charge 14); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[3] (charge 15) and one charge of possession of dangerous drugs, contrary to section 8 of the Dangerous Drugs Ordinance[4] (charge 20).

2.D2 pleads guilty to one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance (charge 16); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance (charge 17); one charge of theft, contrary to section 9 of the Theft Ordinance[5] (charge18) and one charge of careless driving, contrary to section 38(1) of the Road Traffic Ordinance (charge 19).

3.Full details of the offences are set out in the summary of facts admitted by the defendants today[6]. In summary between August 2019 and December 2019 D1 stole property from nine different motor vehicles (charges 1-5, 7, 8, 11 & 18). 

4.In addition, D1 is charged with theft of motorcycle LV 8432 (charge 13).  D1 and D2 were arrested on 4 December 2019 when stealing property from a private car (charge 18).  When the police approached in a government rented private car D2, who was on motorcycle LV 8432, suddenly drove away in the process of which he lost balance and crashed into the private car (charges 14-17 & 19).

5.D1 is also charged with possession of dangerous drugs found on arrest (charge 20).

Charges 1-5, 7, 8, & 11 – theft from vehicles

6.Full particulars of the offences are set out in the summary of facts[7].  The following is a brief summary of each offence.

Charge 1

7.On the night of 19/20 August 2019 D1 stole one hydraulic supporter, valued at $25,000, from a medium goods vehicle which was parked on the street in Kai Tak.

Charge 2

8.On 26 August 2019 D1 stole a portable grinder, valued at $1,000, and a wire clip from the rear storage box of a motorcycle which was parked on the street in Kwun Tong and RMB50 which was in the seat compartment.  The wire clip was recovered by the police.

Charge 3

9.On 4 September 2019 D1 stole a key chain with six keys and one Octopus card with $386.50 stored value from a motorcycle which was parked in a bus terminal in Kowloon Bay.  The Octopus card was used the same day in a convenience store and a supermarket with total purchases in the sum of $387.40.

Charge 4

10.On the night of 21/22 September 2019 D1 smashed the emergency door window of a school bus which was parked on the street in Kwun Tong and stole a wallet left behind by a student.  The wallet contained an identity card, student card, an ATM card and $100 cash.  The emergency door window cost $300 to repair.

Charge 5

11.On the night of 20/21 October 2019 D1 smashed the right rear door window of a company car which was parked on the street in Ngau Tau Kok and stole two pairs of testing plates (T plates) used by the company.  The value of the T plates was about $1,333 and the repair cost of the window was $1,500.

Charge 7

12.On the night of 29/30 October 2019 D1 smashed the left rear passenger door window of a private car which was parked on the street in Kai Tak and stole a car camera valued at $500; a computer hard disc valued at $300 and $100 cash.  The repair cost of the window was $2,000.

Charge 8

13.On 8 November 2019 D1 smashed the left rear window of a private car which was parked on the street in Kai Tak and stole thirty red packets containing a total of $1,500 and an external hard disc valued at $1,200.  The repair cost of the window was $800.

Charge 11

14.On the night of 22/23 November 2019 D1 smashed the left passenger seat windows of a medium goods vehicle which was parked on the street in Kowloon Bay and stole a set of car washing equipment, valued at $1,000; a mobile phone charger, valued at $100; about $30 cash and twenty-four cans of coffee, valued at $100.  The repair cost of the windows was $1,000.

15.In a video recorded interview D1 admitted all eight thefts[8].

Charges 13-19 – theft of vehicle, driving without a valid driving licence, using a motor vehicle without third party insurance, theft from vehicle and careless driving

16.In summary at around 6:30 p.m. on 29 November 2019 Mr Yuen parked motorcycle LV 8432 under the footbridge opposite Lei Yue Mun Plaza in Yau Tong.  A helmet and jacket were stored in the seat storage compartment and a second helmet was stored in the rear storage box.  At 8:15 a.m. on 4 December Mr Yuen returned to the parking spot and found the motorcycle missing (charge 13). 

17.At around 5:24 a.m. on 4 December 2019 police officers, who were on board a government rented private car, were told to follow the defendants who were riding motorcycle LV 8432. 

18.LV 8432 stopped at the intersection of Muk Tai Street and Shing Kai Road in Kai Tak where private car WE 9932 was parked.  D1, who was the passenger, alighted from the motorcycle and approached WE 9932 while D2 remained on the motorcycle. 

19.The police approached in the private car when D2 suddenly drove off.  D2 lost his balance and crashed into the government rented private car (charges 16, 17 & 19)[9].

20.At the same time D1 tried to run away but was intercepted by the police at which time D1 dropped on the ground a box of medicine, two external chargers and an electronic cigarette which was stolen from WE 9932.  The police found the left front passenger seat window of WE 9932 had been smashed.  The value of the stolen property was $1,100 and the cost of the repair of the window was $2,500 (charge 18).

21.Mr Yuen identified motorcycle LV 8432 was his which was valued at $12,000.  The key inserted in the ignition lock was not Mr Yuen’s key; the ignition lock cylinder and rear container had been prized and the two helmets and jacket stored in the motorcycle were missing.  The cost of the repair of the ignition lock cylinder and rear container was about $5,000 and the value of the helmets and jacket was $2,500 (charge 13).

22.D1 did not hold any driving licence at the material time and D2 only held a driving licence for a private car and light goods vehicle which had expired in 2011. 

23.No valid third party insurance covering the driving of D1 and D2 had been issued[10].

24.Under caution and in a subsequent video recorded interview D1 admitted, inter alia, stealing motorcycle LV 8432 on 2 December 2019 (charge 13), which he drove (charges 14 & 15); stealing from WE 9932 (charge 18) and that he had no driving licence[11].

25.Under caution and in a subsequent video recorded interview D2 admitted, inter alia, this was his first time stealing with D1 (charge 18) and that he drove the motorcycle without a licence for a short distance (charges 16 & 17)[12].

Charge 20 – possession of dangerous drugs

26.On arrest D1 was found in possession of a cigarette box containing two pieces of paper each wrapping white powder found by the Government Chemist to be 0.43 gramme of a mixture containing midazolam and heroin hydrochloride.  Under caution and in a subsequent video recorded interview D1 admitted the white powder was for his self-consumption[13].

Mitigation

27.In passing sentence, I have carefully considered the oral and written submissions of Mr Mak, I take into account D1 aged 42, was at the time of arrest unemployed and homeless[14]. 

28.I have carefully considered the oral and written submissions of Mr Chan, I take into account D2, aged 53, lives with his mother aged 90 and was working as a construction worker prior to his arrest[15].

Sentence

D1

Charges 1-5, 7, 8, 11 & 18 - theft from vehicle

29.Mr Mak submits that D1 was just an opportunist and did not engage in a sophisticated plan to steal from vehicles[16].  To describe D1 as an opportunist with respect overlooks that this was a course of conduct over a period of four months during which the defendant stole from no less than nine vehicles.

30.There are no guidelines for theft from vehicle.  Apart from charge 1 where the stolen property was valued at $25,000, the property stolen was of small value ranging from a few hundred dollars to less than three thousand.  Six of the vehicles however had windows smashed resulting in inconvenience and repair costs, including the private car subject of charge 18 which theft was committed together with D2.

31.I am satisfied a starting point of 12 months’ imprisonment is appropriate for charge 1 and 9 months’ imprisonment for charges 2-5, 7, 8, 11 & 18.  Giving D1 credit for his pleas of guilty reduces the sentence on charge 1 to 8 months’ imprisonment and on charges 2-5, 7, 8, 11 & 18 to 6 months’ imprisonment.

Charge 13 - theft of a motorcycle

32.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[17]:

“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.”

33.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.

34.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[18].   

35.Mr Mak has also referred the court to the sentence in HKSAR v Wo Yan Lung[19] and to my reasons for sentence in HKSAR v Wong Kam Ho[20]. 

36.Taking into account that the motorcycle is valued at $12,000 and that the ignition and rear container had been prized, I am satisfied the proper starting point after trial is 2 years’ imprisonment.

37.The traffic record reveals that D1 has never held any driving licence and therefore never passed a driving test.  This in my view is 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.

Persistent offender

38.A starting point may be increased where the defendant is a persistent offender.  D1 has appeared in court on twenty occasions since 1993 amassing a total of thirty-four convictions.  Ten convictions are for offences of dishonesty, including offences in 2017 relating to motor vehicles at which time the defendant was also convicted of driving without a valid driving licence and using a motor vehicle without third-party insurance. 

39.I am satisfied D1 is a persistent offender and enhance the starting point by a further 3 months to 2 years and 6 months’ imprisonment.  Giving D1 credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment.

Charges 14 & 15 – driving without a valid driving licence and using a motor vehicle without third party insurance

40.Taking into account this is the third conviction for each offence I am satisfied a starting point of 3 months’ imprisonment is appropriate for driving without a valid driving licence and 6 months’ imprisonment for using a vehicle without third party insurance.  

41.Giving D1 credit for his pleas of guilty reduces the sentence on charge 14 to 2 months’ imprisonment and on charge 15 to 4 months’ imprisonment. 

Charge 20 – possession of dangerous drugs

42.Taking into account the small quantity and that this is the seventh conviction for possession of a dangerous drug, I am satisfied a starting point of 3 months’ imprisonment is appropriate.  Giving D1 credit for his plea of guilty reduces the sentence to 2 months’ imprisonment. 

Totality

43.In my view sentence must reflect that over a period of almost four months D1 stole from nine vehicles and stole a motorcycle.  I am satisfied that a total sentence of 2 years and 6 months’ imprisonment is appropriate for the theft charges. Having taken into account driving without a valid driving licence and no insurance in aggravation of the theft of the motorcycle, I am satisfied concurrent sentences are appropriate for charges 14 & 15. 

44.Possession of a dangerous drug is however a separate and distinct offence which adds to the culpability of the defendant.  A consecutive sentence is appropriate. 

45.I am satisfied that a total sentence of 2 years and 7 months’ imprisonment properly reflects D1’s overall criminal culpability on the thirteen charges[21].

Disqualification

46.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.

47.I note that on his last conviction D1 was disqualified for 15 months.  I am satisfied the same disqualification is appropriate.  D1 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 15 months from today. 

48.D1 is warned that after serving his prison sentence he is likely to still be disqualified from driving.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.

49.D1 is convicted and sentenced as follows:

Charges 13-15

Charge 13 - 20 months’ imprisonment;

Charge 14 – 2 months’ imprisonment concurrent to charge 13;

Charge 15 – 4 months’ imprisonment concurrent to charges 13 & 14 and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 15 months from today;

Charges 1-5, 7, 8, 11 & 18

Charge 1 - 8 months’ imprisonment consecutive to charges 13, 14 & 15;

Charges 2-5, 7, 8, 11 & 18 - 6 months’ imprisonment concurrent with 2 months consecutive to charges 1 & 13-15;

Charge 20 – 2 months’ imprisonment with 1 month consecutive and 1 month concurrent to charges 1-5, 7, 8, 11, 13-15 & 18.

50.The total sentence to be served by D1 is 2 years and 7 months’ imprisonment. 

D2

51.Mr Chan has referred the court to five cases[22] including my reasons for sentence in HKSAR v Ng Tak Yin & another[23].

Charge 18 – theft from vehicle

52.Taking into account that this is D2’s second conviction for theft from vehicle; the theft was committed together with D1 and the value of the property stolen, I am satisfied the proper starting point after trial is 9 months’ imprisonment, the same starting point adopted for D1. 

53.Giving D2 credit for his plea of guilty reduces the sentence to 6 months’ imprisonment.

Charges 16 & 17 – driving without a valid driving licence and using a motor vehicle without third party insurance

54.Taking into account D2 has no similar convictions, I am satisfied a starting point of 6 weeks’ imprisonment is appropriate for driving without a valid driving licence and 3 months’ imprisonment for using a motor vehicle without third party insurance.

55.Giving D2 credit for his pleas of guilty reduces the sentence to 4 weeks’ imprisonment and 2 months’ imprisonment respectively. 

Charge 19 – careless driving

56.Whilst no one was injured and the damage to the private car rented by the police was minor, the driving occurred when D2 tried to escape.  I am satisfied a starting point of 3 weeks’ imprisonment is appropriate.

57.Giving D2 credit for his plea of guilty reduces the sentence to 2 weeks’ imprisonment.

Totality

58.Mr Chan submits that all the offences arise from the same incident[24].  I disagree.  Whilst the offences are connected the offences of careless driving and driving without a valid driving licence and using a motor vehicle without third party insurance are distinct from the theft from vehicle charge.  In my view these offences add to the culpability of the defendant.

59.I am satisfied that a total sentence of 8 months’ imprisonment properly reflects D2’s overall criminal culpability on the four charges[25].

Disqualification

60.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.

61.I am satisfied the minimum disqualification is appropriate.  D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months from today. 

62.D2 is convicted and sentenced as follows:

Charge 18 - 6 months’ imprisonment;

Charge 16 – 4 weeks’ imprisonment;

Charge 17 - 2 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months from today; and

Charge 19 – 2 weeks’ imprisonment.

63.The sentences on charges 16, 17 and 19 are ordered to be served concurrent to each other but consecutive to charge 18.  The total sentence to be served by D2 is 8 months’ imprisonment.