HKSAR v. Wong Kam Shing

DCCC 545/2021

[2022] HKDC 150

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 545 OF 2021

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to 20 charges of offences: -

(a)  Theft of vehicle: charge 1, 4, 8, 13 and 17

(b)  Attempt theft of vehicle: charge 12

(c)  Theft of the content of a vehicle: charge 16

(d)  Driving while disqualified: charge 2, 5, 9, 14 and 18

(e)  Using a motor vehicle without 3^rd party’s insurance: charge 3, 6, 10, 15 and 19

(f)  Forgery of documents, contrary to S 111[1][a] of the Road Traffic Ordinance, Cap 374: charge 7, 11, and 20.

2.As the summary of facts showed that the defendant committed a number of offences by stealing 6 vehicles and theft of the content of Car 6 and 7.

3.The first five vehicles (involved charge 1 to charge 15)  can be summarized in a nutshell that those 5 vehicles were parked outside or near to the garages by the car mechanics or car owners.  Cars were unlocked and keys were inside the vehicles.

4.Car cameras and CCTV captured the defendant stealing 5 stolen vehicles (they were incident 1, 2, 3, 5, 7).  As to the Car 4 incident, CCTV captured the defendant entered the car and switched on the car lights.

5.At all material time, the defendant never had any driving licence.  Defendant drove those stolen vehicles while on a disqualification order by the court (charge 2, 5, 9, 14, 18)  and without 3^rd party’s insurance.  (charge 3, 6, 10, 15, 19).

6.The defendant admitted under caution that he committed all those offences – charge 1 to 20.

7.Incident 1 (Car 1):-

Charge 1	13.8.2020	Theft of a private vehicle KA 622 and its content (total value $235,000) a.      Two sunshades b.     One bag of receipts c.      Two umbrellas d.     One box e.      9 pieces of clothing f.       One set of car camera
Charge 2	13.8.2020	Driving KA 622 while disqualified
Charge 3	13.8.2020	Using KA 622 without 3rd party insurance

8.On 28 August 2020, the police found Car 1 crashed into a road sign in Yuen Long and bore a different car number plate UZ 9082.

9.Incident 2 (Car 2):-

Charge 4	21.8.2020	Theft of a private vehicle (Car 2)
Charge 5	21.8.2020	Driving while disqualified
Charge 6	21.8.2020	Using a motor vehicle without 3rd party insurance
Charge 7	3.9.2020	Forgery of document (FU 8090)

10.PW3 was the new owner of the vehicle.  The transport department issued a new car number to his vehicle.

11.On 3 September 2020, at around noon time, PW4 came across Car 2 in Tai Kok Tsui. PW4 identified his car by its chassis number.  However, his vehicle bore a different vehicle license and car plate.

(charge 7)

12.PW4 did not suffer any loss as a result of the recovery of his vehicle.

13.Incident 3 (Car 3):-

Charge 8	14.9.2020	Theft of a private vehicle (it belonged to PW5)
Charge 9	14.9.2020	Driving while disqualified
Charge 10	14.9.2020	Using a motor vehicle without a 3rd party insurance
Charge 11	20.9.2020	Forgery of document (US 9910 on Car 3)

14.On 20 September 2020, at around midnight, the police found Car 3 in Chai Wan.  Its right side mirror and right front tyre were broken.  The Vehicle licence was still the same except that the car plate was different, it changed to US 9910. (charge 11)

15.PW5 found the car key was missing.

16.PW5’s vehicle worth about $15,000.

17.Incident 4 (Car 4):-

Charge 12

16.9.2020

Attempted theft of a private vehicle (SG 2708)

18.At around 2:33 am on 16 September 2020, PW8 heard the engine sound and saw from CCTV the lights of SG 2708 were on.  PW8 opened the gate of garage and saw the defendant came out from the driver seat of SG 2708.

19.PW8 confronted the defendant if he wanted to steal the car.  The defendant fled from the scene, but was soon caught by PW8 and he was arrested by the police soon after.

20.The incident 5 (car 5):-

Charge 13	6.11.2020	Theft of a private vehicle PN 5010
Charge 14	6.11.2020	Driving while disqualified
Charge 15	6.11.2020	Using a motor vehicle without 3rd party insurance

21.On 26 November, PW11 – the mechanic of the garage found Car 5 in a carpark in Kwai Chung, the car plate was changed to ST 915.  The original car plate PN 5010 was inside the car.

22.Car 5 worth about $160,000.

23.Incident 6 and 7 – Car 6 and Car 7 – both belonged to PW12.

24.On 8 November 2020, at about 11 pm, PW12 parked  Car 6 near to the junction of Chatham Road and Baker Street, while she parked  Car 7 outside No 2 Baker Street.

25.When she returned to Car 6 at about 3 am, she found the items in Car 6 were stolen, while Car 7 and its contents were also gone.

Charge 16	9.11.2020	Theft from a private car (Car 6)  of its contents – VN 937 One handbag Cash $5,000 One mobile phone One passport 3 credit cards 3 ATM cards One cheque book Total:- $8,000
Charge 17	9.11.2020	Theft of Car 7 and its content including a handbag and two piles of documents. Total loss of the contents and the car was $251,000

26.Incident 7 – the recovery of Car 7:-

Charge 18	12.11.2020	Driving while disqualified
Charge 19	12.11.2020	Using a motor vehicle without a 3rd party insurance
Charge 20	12.11.2020	Forgery of document

27.In the early hours of 12 November 2020, the Police saw the defendant drove SH 3418 into the Royal Park Hotel carpark.  The police intercepted the defendant when he came out from the carpark.

28.SH 3418 was located in the carpark, the police used the key found on the defendant to unlock SH 3418.  Inside the car, the original car number plate was found. (charge 20)

29.The defendant admitted under caution that he committed all the above offences.

Criminal record

30.The defendant has 11 occasions of court appearances with 30 criminal convictions.

(i)  Driving without a valid licence – 5 times (2013, 2015 and 2016 ).

(ii)  Using a motor vehicle against third party insurance – 5 times (2013, 2015 and 2016)

(iii)  Driving while disqualified – 3 times in 2016

(iv)  Theft – 8 times between 2007 to 2019. His last 2 cases in 2016 and 2019 were theft of vehicles.

(v)  Other offences including going equipped for stealing, attempt obtaining property by deception, claiming to be a member of a triad society, common assault, forged driving/vehicle document and possession of instrument fit for unlawful purpose.

31.His last conviction was in January 2019 for DCCC 1038/2018 which was also Theft of vehicle and Theft from a vehicle, the total sentence was 2 years 4 months.  He was discharged from Hei Ling Chau in April 2020.

Mitigation

32.The defendant is now aged 32, he lives with his wife before the arrest.  He was a causal worker earned about $8,000 per month.

33.He has been a habitual drug addict of ice and cocaine for 10 years.

34.The commission of the present offences was to feed his drug addiction habit.

35.There was nothing much to say on behalf of the defendant except that he is now remorseful and cooperated with the police.

36.The defence also informed this court that the defence is not relying on any authority to support its mitigation.

37.However, during discussion in mitigation, the defence is aware of the authorities that have been cited in the defendant’s previous sentences: DCCC 264/2016 and DCCC 1038/2018.  The defence chose not to mention all these cases.

38.As discussion went on, this court mentioned 2 recent cases

(a)  HKSAR v Chin Chin Fat CACC 70/2020

(b)  HKSAR v Lam See Chung Stephen CACC 225/2021, CACC 5/2021, CACC 9/2021

39.The defence then said that the defendant would receive a substantially longer sentence than the previous one and that the defendant is entitled to a meaningful reduction of sentence for his timely pleas.

Sentence

40.The maximum sentence for each offence: -

(a)  Theft – 10 years. According to S 69(1)(c)  of the Road Traffic Ordinance Cap 374 that a period of disqualification can be imposed against the defendant.

(b)  Driving while disqualified – a fine of $10,000 and 12 months imprisonment; disqualification for not less 3 years for a second or subsequent conviction,

(c)  Driving without a third party insurance – a fine of 10,000 and imprisonment for 12 months. Disqualification period is between 12 months and 3 years.

(d)  Forgery – a fine of level 3 and 3 years imprisonment.

41.To begin with, according to HKSAR v Cheng Chun Ming CACC 356/2000 paragraph 14 of the judgement that: -

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length.”

42.In HKSAR v Yu Chi Chiu CACC 198/2015 paragraph 10 of the judgement said that: -

“……… theft of a vehicle is a serious crime for the following reasons:

i. Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

ii. A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters and all types of memory cards or access cards.)

iii. A vehicle is often parked in the public place, making it prone to be a target of theft.

iv. To the owner of a private vehicle, the loss of his vehicle will cause great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.”

43.In paragraph 12 of the same judgement, the Court of Appeal also said that it was not manifestly excessive for the trial judge to take 3 years as the starting point for sentencing.

44.In the present case, there are aggravating factors to be considered:-

(1)  The defendant committed the present offence just 4 months after he was discharged from Hei Ling Chau Correctional Institution.

(2)  The defence do not dispute that the defendant is a persistent offender.

(3)  He committed charge 13 to 20 while he was on police bail for charge 12.

45.As stated in the case of HKSAR v Chan Pui Chi [1992] 2 HKLRD 830 that when the culprit has numerous similar convictions in the past (also known as a persistent offender), that will definitely be a recognized factor for enhancing the starting point as the previous sentences did not deter the defendant from re-offending.

46.The Court of Appeal in Yu Chi Chiu also quoted the case of HKSAR v Yeung Kam Tung CACC 427/2012 that when both factors exist and for enhancing the starting point is concerned, the factor of reoffending shortly after release is no different from that of having multiple similar convictions in the past.

47.As such, I will enhance sentence by 3 months for the offences which were committed before charge 12, additional 6 months after charge 12.

48.As stated in the case of R v Lui Wing-han [1997] HCMA 502/1997, the Court said that: -

“driving while disqualified and, hence, without third party insurance, is a very serious offence as other road users who are injured in any traffic accident may be left without any compensation. A term of imprisonment for driving without third party insurance is normally called for”

49.Driving while disqualified is clearly a flagrant breach of court orders. The defendant had 3 previous convictions of driving while disqualified and 5 previous convictions of driving without third party insurance.

50.As to the stolen vehicles, the prosecution informed me that Car 1 for charge 1 was a total loss as the car was crashed into the railing.  The owner suffered a loss of $235,000 and the car camera was $4,500.  The starting point should be one of 3years and 3 months imprisonment due to the loss suffered by the owner.

51.Car 2 , Car 4 and Car 5 were recovered and the owners did not suffer any loss.

52.Car 3 owner spent $3,000 to fix the broken mirror and the tyre.

53.Car 7’s repairing cost was about $35,000.  The handbag inside Car 7 worth $35,000.

54.I notice that all the offences were committed by the defendant alone, those vehicles which were unlocked and with keys kept inside the vehicles gave the defendant the opportunities to steal those vehicles.

55.As to charge 7, 11 and 20, they are charges of forgery of documents, that the defendant removed the original number plates and/or vehicle licence by using other car numbers to conceal the true identity of the vehicles.  As stated in HKSAR v Muhammmad Waqas [2019] HKCA 937 at paragraph 50 of the judgement regarding the forgery of document offence:-

“charge 2 (forgery of document)  is a serious offence and, as we have said, evidences an intention to inhibit investigation by the police of the theft of vehicle and recovery by the owner of it. It undoublty adds to the culpability of the appellant and, subject to the application of the totality principle, a court would be justified in ordering that part of the sentence for this offence should be served consecutively to the sentence of charge 1 (theft of vehicle).”

56.In such circumstances, I consider that:-

I. Charge 1 (theft of a vehicle):-

a. starting point is 3 years 3 months, increase by another 3 months, it arrives at 3 years 6 months, reduce to 2 years 4 months’ imprisonment after 1/3 discount.

b. Disqualified for a period of 5 years

II. Charge 4, 8 and 12 (theft of a vehicle)

a. Starting point is 3 years, increase by another 3 months, it arrives at 3 years 3 months, reduce to 2 years 2 months’ imprisonment after 1/3 discount.

b. Disqualified for a period of 5 years

III. Charge 13 and 17 were committed during the police bail period, therefore enhance by an additional 6 months.

a. Starting point is 3 years, increase by another 6 months, it becomes 3 years 6 months, reduce to 2 year 4 months imprisonment after 1/3 discount

b. Disqualified for a period of 5 years.

IV. Charge 2, 5, 9 (driving while disqualified)

a. starting point is 6 months, reduce to 4 months imprisonment after 1/3 discount.

b. Disqualified for a period of 3 years.

V. Charge 14 and 18 (driving while disqualified)  were committed during police bail period. It warrants an increase in the starting point of another 3 months.

a. Starting point is 6 months, increase to 9-month imprisonment, reduce by 1/3 discount, it comes down to 6 months.

b. Disqualified for a period of 3 years.

VI. Charge 3, 6, 10 (using a motor vehicle without 3^rd party insurance)

a. Starting point is 6 months, reduce to 4 months imprisonment after 1/3 discount.

b. Disqualified for a period of 3 years

VII. Charge 15 and 19 (using a motor vehicle without 3^rd party insurance)

a. Starting point is 6 months, increase to 9 months, reduce to 6 months imprisonment , after 1/3 discount.

b. Disqualified for a period of 3 years.

VIII. Charge 7, 11 (forgery of document)

a. Starting point is 12 months, reduce to 8 months imprisonment after 1/3 discount

IX. Charge 20 (forgery of document)  committed during the Police bail period.

a. Starting point is 12 months, increase to 15 months’ imprisonment, reduce to 10 months after 1/3 discount.

X. Charge 16 (theft from a private vehicle – stole items inside Car 6, total lost is $8000 including a mobile phone)

a. Starting point is 12 months, increase by 3 months, reduce to 10 months imprisonment after 1/3 discount.

57.Summary of the sentences after 1/3 discount: -

Charge	Period of Imprisonment	Period of Disqualification
1	2 years & 4 months	5 years
2	4 months	3 years
3	4 months	3 years
4	2 years & 2 months	5 years
5	4 months	3 years
6	4 months	3 years
7	8 months
8	2 years & 2 months	5 years
9	4 months	3 years
10	4 months	3 years
11	8 months
12	2 years & 2 months	5 years
13	2 years & 4 months	5 years
14	6 months	3 years
15	6months	3 years
16	10 months
17	2 years & 4 months	5 years
18	6 months	3 years
19	6 months	3 years
20	10 months

Totality principle

58.I now come to deal with the principle of totality.

a. Incident one and two all occurred in August 2020.

b. Incident 3 and 4 all occurred in September, 2020.

c. After his arrest for charge 12, the defendant did not commit any offence for a period of 2 months,

d. Then he went on to commit charge 13 to 20 which involved 3 cars within a week. That was from 6^th to 12^th of November 2020.

e. The 20 charges involved 7 cars.

59.I consider that a period of 6 years imprisonment is necessary to reflect the overall criminality and culpability of the offences committed by the defendant.

60.Given the defendant full credit for his pleas of guilty he is convicted and sentence to 6 years imprisonment, which I am satisfied to reflect a meaningful discount from the maximum of 7 years.

61.In determining what is a meaningful discount, I have considered HKSAR v Wong Ngon Ching CACC 393/2015.

62.To this end, I order 7 months from each set of the charges, namely:-

a. Charge 1 to 3

b. Charge 4 to 7

c. Charge 8 to 11

d. Charge 12

e. Charge 13 to 15

( 7 months x 5 sets = 35 months )

and 4 months from charge 16 to run consecutively to charge 17 to 20 .

Charge	Period of Imprisonment	Remarks
1	2 years & 4 months	Charge 1 to 3 to run concurrently with each other. Total : 2 years and 4 months
2	4 months
3	4 months
7 months of the sentences of Charge 1 to 3 to run consecutively to Charge 17 to 20.
4	2 years & 2 months	Charge 4 to 6 to run concurrently with each other.  Total: 2 years 2 months
5	4 months
6	4 months
7	8 months	4 months from charge 7 to run consecutively to Charge 4 to 6. Total : 2 years and 6 months
7 months of the sentences of Charge 4 to 7 to run consecutively to Charge 17 to 20.
8	2 years & 2 months	Charge 8 to 10 to run concurrently with each other. Total : 2 years 2 months.
9	4 months
10	4 months
11	8 months	4 months from charge 11 to run consecutively to charge 8 to 10. Total : 2 years and 6 months
7 months of the sentences of Charge 8 to 11 to run consecutively to Charge 17 to 20.
12	2 years & 2 months
7 months of the sentence of Charge 12 to run consecutively to Charge 17 to 20.
13	2 years & 4 months	Charge 13 to 15 to run concurrently with each other. Total : 2 years and 4 months.
14	6 months
15	6months
7 months of the sentences of Charge 13 to 15 to run consecutively to Charge 17 to 20.
16	10 months
4 months of the sentence of Charge 16 to run consecutively to Charge 17 to 20.
17	2 years & 4 months	Charge 17 to 19 to run concurrently with each other. Total : 2 years & 4 months
18	6 months
19	6 months
20	10 months	5 months of charge 20 to run consecutively to Charge 17 to 19. Total : 2 years and 9 months
Total Sentence for Charge 17 to 20:-  33 months.

63.It arrives at a total of 6 years.

Order

64.The defendant is to serve a period of 6 years imprisonment.

65.All the disqualification orders are to run concurrently from the date of sentence.  That is a period of 5 years.