HKSAR v. Ramos Jr Fredjewell a

DCCC 795/2020

[2021] HKDC 302

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 795 OF 2020

________________________

________________________

________________________

Reasons for Sentence

________________________

1.The defendant has pleaded guilty to three charges that relate to the theft of a motorcycle. The 1st charge is theft, that is theft of the motorcycle itself, the 2nd charge is consequent upon that driving without a valid driving licence, and the 3rd charge, using a motor vehicle without third party insurance.

2.Facts are very straightforward.  The vehicle is a motorcycle with the registration mark UT6631.  It was parked on 13 July 2020 by its owner in To Kwa Wan.  The ignition key was left in the ignition of the vehicle. 

3.The next day at about midday, the owner returned, found the motorcycle was missing.  The motorcycle was finally located on 26 July 2020 at about 21.55 in the evening, when an off-duty officer saw the defendant driving the motorcycle around.  The officer was suspicious and eventually the defendant and the motorcycle were intercepted.  The defendant was unable to produce a driving licence at the time and the registration of the motorcycle was confirmed. 

4.The defendant, although holding a driving licence, does not hold a driving licence that is valid for the motorcycle in question, namely, because of the transmission of the vehicle.  He holds a driving licence for automatic transmission vehicles only.  One must assume from that the motorcycle has a manual transmission. 

5.The defendant admitted the offence under caution.  He said that he saw the car key was left in the ignition switch and then drove it away out of greed.  He used it himself between 14 July and 26 July 2020 and he seemed to have parked it in the area from his admission.  Those are the Admitted Facts which support the convictions on the three charges. 

6.Defendant himself was aged 42 at the time when his antecedents statement was taken, born in Hong Kong, educated to Secondary 5 level in Hong Kong.  He is said to be unemployed at the time of his arrest.  Mitigation suggests he was employed.  

7.Defendant has a number of previous convictions, a total of 18 previous appearances in court.  He has been convicted of theft on a number of occasions with sentences ranging from short sentences of imprisonment up to 26 months of taking conveyance without authority in 2017. Defendant was also recently convicted in 2019 of theft.  He received a sentence of 8 months’ imprisonment. 

8.Dealing with the defendant’s mitigation.  I received a comprehensive mitigation from the defendant.  The defendant’s instructions to his counsel put forward in mitigation is the defendant in fact obtained a graduate degree from the Philippines in hotel management and returned to Hong Kong in the year 2000.  He has worked as a fitness instructor and a driver and at the time of his arrest, he says he was working as a driver earning around $18,000 per month. 

9.With respect to his personal circumstances, he is a divorced man but he does have a 5-year-old daughter.  The daughter is, as I understand from mitigation, living with the defendant’s girlfriend.  He wishes to be released so that he could assist in the care for his daughter who he intends, I understand, to go to the Philippines with. 

10.The mitigation in respect to the offence is straightforward.  Again, defendant saw the vehicle, took the vehicle, he says out of greed.  He says it was an opportunistic offence.  He used the vehicle after taking it with no alterations to the vehicle and there appears to be no damage to the vehicle.  No evaluation of the vehicle is given.  One assumes it is not a high-value motorcycle. 

11.Defendant in mitigation also says he holds a valid driving licence for a motorbike vehicle with automatic transmission.  The vehicle itself was manual transmission, so the wrong type of licence was obtained.  Naturally, by stealing the vehicle, the defendant had no insurance for it. 

12.The offences themselves carry no tariff.  The two motoring offences contained in Charge 2 and 3 contain penalties of imprisonment or a fine and on the 3rd charge of driving without insurance, there should be a mandatory disqualification between 12 months to 3 years. 

13.AS far as the approach to sentence is concerned, I confirm that there is no tariff sentence in respect of theft or the theft of vehicles.  I have been referred to a number of authorities by the defence.  It would appear that in respect of the theft of motorcycles, sentences range between 27 months up to over 3 years’ imprisonment.  For the theft of motor vehicles and cars, sentences can range from 3 years and above up to over 4 years’ imprisonment.  The circumstances in which these offences are committed are many and varied and it is clearly not possible to lay down any guideline sentencing. 

14.I note that in respect of this offence, the first offence committed by the defendant, there is aggravation in the sentence of the defendant.  That is the numerous convictions of theft and also a case that is similar, taking conveyance without authority, so in respect of the 1st charge, there is an aggravating factor present. 

15.The general mitigation of the defendant is that it is an opportunistic theft.  There were no alterations or damage to the vehicle.  It was only used for its purpose, which is to use for the transport of the defendant. 

16.In respect of the 2nd charge, the defendant would say that the commission of the offence is not as serious as having no driving licence at all.  The defendant is a qualified driver but not for vehicles of manual transmission. 

17.Taking all these factors into account, in respect of the 1st charge, having regard to the way which the theft is committed, I will take an initial starting point of 27 months’ imprisonment. The aggravating factor of the previous similar convictions, in respect of that I will add a further 3 months’ imprisonment.  So the starting point for sentence in respect of Charge 1 is one of 30 months’ imprisonment.  After reduction for pleading guilty, the sentence will be one of 20 months’ imprisonment. 

18.On the 2nd charge, after deduction for plea of guilty, it will be a sentence of 4 weeks’ imprisonment. 

19.On the 3rd charge, I will take a starting point in the sentence of 4½ months’ imprisonment, reduce that to 3 months’ imprisonment for the defendant’s plea of guilty.  There will also be a 12-month disqualification from driving. 

20.Having regard to the overall totality, I will order that all the sentences be served concurrently, leading to an overall total sentence of 20 months’ imprisonment and a disqualification from driving for 12 months.