HKSAR v. Leung Kwong Kit

DCCC 326/2021

[2021] HKDC 1617

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 326 OF 2021

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REASONS FOR SENTENCE

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1.The defendant faces a total of fourteen charges.  The charges are as follows:-

Charge 1 - theft of a motorcycle^[1];

Charge 2 - using a motor vehicle without a valid driving licence^[2];

Charge 3 - using a motor vehicle without third party insurance^[3];

Charge 4 - possession of a dangerous drug^[4];

Charge 5 - possession of an apparatus fit and intended for the smoking or inhalation of dangerous drugs^[5];

Charge 6 - theft of a motorcycle^[6];

Charge 7 - theft of a vehicle licence^[7];

Charge 8 - using documents, namely a vehicle licence and a number plate, on a vehicle with intent to deceive^[8];

Charge 9 - using a motor vehicle without a valid driving licence^[9];

Charge 10 - using a motor vehicle without third party insurance^[10];

Charge 11 - dangerous driving^[11];

Charge 12 - driving a motor vehicle with any concentration of a specified illicit drug^[12];

Charge 13 - possession of a dangerous drug^[13]; and

Charge 14 - possession of Part 1 Poison^[14].

2.The charges arose out of two separate series of activities leading to the defendant’s arrest on two different days.  The defendant was first arrested on 5 June 2020 for the offences in Charges 1 to 5.  On 26 September 2020, the defendant was arrested for the offences in Charges 6 to 14, which were committed while on police bail for Charges 1 to 5.

3.As a result of plea bargaining, the defendant pleaded guilty to eleven charges (Charge 1-4, 6-11 and 13) and the remaining three charges (Charge 5, 12 and 14) were left in court file. 

4.Full details of the offences are set out in the facts admitted by the defendant.  The defendant was convicted of all these eleven charges accordingly.

5.Upon application by the prosecution, I ordered Charges 5, 12 and 14 be left in the court file and not to be proceeded against the defendant without leave of court.

Facts

The incidents leading to the defendant’s arrest on 5 June 2020 ~ the first set of offences ~ Charges 1 to 4

6.The motorcycle bearing registration number UB1997 (“Motorcycle I”) belonged to Mr Kade Chan and was valued at around HK$45,000.  On 2 June 2020, Mr Chan had parked Motorcycle I at a motorcycle parking space at Tsing King Road, Tsing Yi.  On 4 June 2020, Mr Chan returned to the parking spot and found Motorcycle I missing (Charge 1).

7.On 5 June 2020 the police recovered Motorcycle I when they found it parked outside No 4 Tak Hing Street, Jordan.  The police checked the CCTVs in the vicinity.  CCTV footages showed that at around 2:38 pm on 5 June 2020 the defendant was driving Motorcycle I arriving at the vicinity of No 4 Tak Hing Street.  At the material time, the defendant did not hold a driving licence for driving a motorcycle and there was no valid third party insurance covering him when he was driving Motorcycle I (Charges 2 and 3).

8.The defendant was then seen entering a room in the hotel at 222 Nathan Road (“the Room”). 

9.At around 5:57 pm on the same day, upon seeing the defendant coming out of the hotel and approaching Motorcycle I, inserting a key to it and opening its storage compartment, the police intercepted and arrested him.  Under caution, the defendant said he possessed Motorcycle I and had driven it earlier in Mongkok, Yaumatei and Tsimshatsui.

10.Mr Chan identified Motorcycle I was his but found that his keys could no longer be inserted into the switch.

11.At 6:42 pm on 5 June 2020, the Room was searched in the presence of the defendant and the police found two plastic bags subsequently found by the Government Chemist to be containing a total of 1.1 gram of crystalline solid containing 1.08 gram of ICE.  Under caution, the defendant admitted that the ICE was for his own consumption (Charge 4).

The incidents leading to the defendant’s arrest on 26 September 2020 ~ the second set of offences ~ Charges 6 to 11 and 13

12.In the evening of 26 September 2020, the police operated a roadblock on Tsing Sha Highway.  At 11:43 pm, the defendant was driving a motorcycle with chassis number JKAEX 400GGDA07103 (“Motorcycle II”) bearing registration mark WJ4916 (“Mark IIA”) approaching the roadblock.  The defendant initially slowed down to about 5km/h.  However, when Motorcycle II was less than 1 metre from a police officer, the defendant suddenly accelerated and drove past a gap between traffic cones and further accelerated to about 100km/h.

13.A police vehicle immediately gave chase.  The police officers on board repeatedly commanded the defendant to stop Motorcycle II but this was ignored by the defendant.  At about 11:45 pm, Motorcycle II arrived at a deadend roundabout on Chi Ngong Road. The front of Motorcycle II crashed into the right front part of the Police Vehicle which was approaching the roundabout.  The defendant fell down and was arrested by the police.

14.The chase by the police lasted for about 1 minute covering a distance of about 1.6 km.  The speed limit of the road for the initial 20 seconds or so of the chase was 80km/h and that for the rest was 50km/h.  The Police Vehicle had reached a speed of around 200km/h at the second part of the chase (Charge 11).

15.The defendant did not hold a driving licence for motorcycle and there was no valid third party insurance covering him when he was driving Motorcycle II (Charges 9 and 10).

16.Both of the Police Vehicle and Motorcycle II were subsequently examined by a motor vehicle examiner and damage was found mainly on the front of both vehicles.  The repair cost for the Police Vehicle was around HK$121,504.

17.On arrest, the defendant was found in possession of a plastic bag subsequently found by the Government Chemist to be containing 6.81 grammes of a crystalline containing 5.95 grammes of ICE (Charge 13). 

18.At the scene, the defendant failed the drug influence recognition observation test.  He was later sent to a hospital.  With his consent, a blood sample was taken from him and the Government Chemist’s report showed the presence of methamphetamine, a specified illicit drug, detected in the blood.

19.Motorcycle II belonged to Mr Yik Yuk Tim and was valued at around HK$62,000.  The registration mark of Motercycle II was VK4266, not Mark IIA.  In the small hours on 13 December 2019 Mr Yik had parked Motorcycle II bearing registration mark VK4266 on a street in Mongkok.  Later in the day when he returned to the parking spot, he found Motorcycle II missing (Charge 6).

20.When Motorcycle II was recovered by the police on 26 September 2020, it was found that it had been modified by having the ignition lock mechanism removed and it could be started without using the ignition key; and that the vehicle licence and the number plate had been changed to Mark IIA.

21.Mark IIA belonged to another motorcycle which belonged to Mr Li Kaho.  In mid-August 2020, Mr Li had parked his motorcycle bearing registration mark Mark IIA on a street in Mongkok.  On around 10 September 2020 when Mr Li returned to the parking spot, he found the vehicle licence missing from his motorcycle (Charge 7).

Criminal record

22.The criminal record of the defendant shows that he has appeared in court on 6 occasions between 1999 and 2015 amassing a total of nine convictions including convictions for driving while disqualified, possession of dangerous drug and theft from vehicle.  Mr Ng told the court, as confirmed by Ms Lo, that the defendant was last released from prison on 21 June 2019 after serving consecutive terms for one count of trafficking in a dangerous drug for which he was sentenced to 8 years and 7 months’ imprisonment on 6 November 2015 and one count of driving while disqualified for which he was sentenced to one month’s imprisonment on 4 December 2015.

23.The traffic record of the defendant shows that he first obtained a driving licence for driving a private car and a light goods vehicle in 2000 but he has never held a driving licence for motorcycle.  He has six traffic conviction records including careless driving, using a vehicle without insurance and forgery of document.

Personal and family background

24.The antecedent statement of the defendant shows that he is now 40 years old.  In her written mitigation, Ms Lo supplemented that the defendant is divorced and has a 12-year-old son who is living with his divorced wife.  Before arrest, the defendant worked as a renovation worker on casual basis.

Mitigation

25.I have heard full mitigation for the defendant from Ms Lo.

26.Ms Lo submitted that the defendant indicated his pleas of guilty at the early stage, thus saving the court’s time and public resources.

27.Ms Lo made further submissions on what she considered to be the appropriate sentence for each charge and for overall culpability.

28.Ms Lo cited the case of HKSAR v Lam Shun-choi CACC 402/2012 and the District Court case of HKSAR v Ng Lok Fung, Jerry DCCC 958/2017, both involve multiple offences of theft of vehicles and/or other related offences to assist the court.

29.In relation to the dangerous drug offences, Ms Lo points out that the quantity of the drug involved is relatively small and is for the defendant’s own consumption.  There is no real risk of latent re-distribution.

Consideration

30.Despite the defendant’s guilty pleas to all these charges, it is clear from the nature and the number of the charges, the facts pertaining to each charge and the background of the defendant that the only viable sentencing option is imprisonment.  Ms Lo has never suggested otherwise.  The only questions to be determined are the length of the sentence for each charge, and the length of the overall term of imprisonment to be served by the defendant.

31.There are no tariffs for either of these offences.  The starting point of any term of imprisonment for these offences would depend on the circumstances of each case.

32.I have considered all mitigation put forward, the facts of the case, the value of the vehicles and the damage sustained.  The only real mitigating factor in this case is the defendant’s guilty pleas.  He is entitled to the full one-third discount from starting point for each offence.

The first set of offences ~ Charges 1 to 4

33.I shall first of all deal with the sentence for each of the offences leading to the defendant’s arrest on 5 June 2020.

Charge 1 ~ Theft of Motorcycle I

34.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 CACC 356/2000.

“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.”

35.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.

36.In HKSAR v Fan Chi Wai CACC 343/2015 leave to appeal against a 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.

37.Ms Lo has also referred the court to the sentence in HH Judge Dufton’s reasons for sentence in NG Lok fung Jerry in which a term of 2 years was imposed as the starting point for a theft of a motorcycle valued at HK$40,000.

38.Each case depends on its own facts and circumstances.

39.Taking into account that Motorcycle I is valued at HKD$45,000 and that the ignition had been modified, I am satisfied the proper starting point is 2.5 years’ imprisonment (30 months).

40.The traffic record reveals that the defendant has never held any driving licence for motorcycle.  The fact that the defendant is not permitted to drive a motorcycle 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 9 months’ imprisonment (33 months).

41.Giving the defendant full credit for his guilty plea, he is sentence to 1 year and 10 months’ imprisonment (22 months) for Charge 1.

Charges 2 and 3 ~ Driving without a valid driving licence and using a motor vehicle without third party insurance

42.Driving without a valid driving licence and third party insurance are serious offences.

43.Taking into account that the defendant had one previous conviction for driving while disqualified and one for using a vehicle without a third party insurance, I am satisfied a starting point of 9 weeks’ imprisonment for driving without a valid driving licence is appropriate and 6 months’ imprisonment for using a vehicle without third party insurance.

44.Giving the defendant full credit for his pleas of guilty he is sentenced to 6 weeks’ imprisonment and 4 months’ imprisonment respectively for Charges 2 and 3.

Charge 4 – Possession of a Dangerous Drug

45.The Hon Mr Justice Hartmann in HKSAR v WAN Choi-fai HCMA 250/1998 upheld a starting point of 12 months’ imprisonment for possession of 0.686 grams of a crystalline solid containing 0.683 grams of narcotic where the appellant had no previous convictions for drug offences.  The court held that the magistrate was entitled to view ice in the same light as heroin and to sentence accordingly.  Citing HKSAR v Lam Wai-king HCMA 238 and 240 of 1997, the court held that for possessing less than a gram of heroin, a starting point of 12 months’ imprisonment was not excessive.

46.Taking into account the quantity and that this is the 4^th conviction for dangerous drug related offences, I am satisfied a starting point of 12 months’ imprisonment is appropriate. 

47.Giving the defendant full credit for his plea of guilty he is sentenced to 8 months’ imprisonment for Charge 4.

Totality ~ Charges 1 to 4 ~ the first set of offences

48.I shall next consider whether the sentences for Charges 1 to 4 should run concurrently or consecutively, be it wholly or in part. 

49.Having taken the defendant’s offending in Charges 2 and 3 in determining the sentence for Charge 1, in order to avoid double counting, I order the sentences for Charges 1 to 3 are to run concurrently, making a subtotal of 22 months’ imprisonment.

50.Charge 4 however is separate and distinct offending which adds to the culpability of the defendant.  A consecutive sentence is appropriate.  However, wholly consecutive sentence will be unduly long.

51.In my judgement, the proper overall sentence of 26 months should adequately reflect the overall criminality of these four offences.  To achieve that, I order 4 months of the sentence of Charge 4 to run consecutively to the concurrent sentence for Charges 1 to 3 and the balance concurrent, making a subtotal of 26 months for Charges 1 to 4.

The second set of offences ~ Charges 6 to 11 and 13

52.Now I am going to deal with the sentences for the offences leading to the defendant’s arrest on 26 September 2020. 

53.As confirmed by Ms Lo, the defendant committed these offences while on police bail for Charges 1 to 4.  It is clear from the authorities that a starting point may be increased where the defendant committed a second offence while on bail for the first^[15]. It shows a total disregard of the law on the part of the defendant and he is a persistent offender.  I shall enhance the starting point for each of these offences accordingly.

54.I would first deal with the sentence to be imposed on each of these charges.

Charge 6 ~ Theft of Motorcycle II

55.Taking into account that Motorcycle II is valued at HK$62,000; that a stolen vehicle licence was used and the number plate was changed to avoid detection; and that the ignition had been modified, I am satisfied the proper starting point is 2 years and 9 months’ imprisonment.

56.I also enhance the starting point by 3 months’ imprisonment to 3 years (36 months) by reason of the aggravating feature that the defendant had no valid driving licence and no third party insurance and a further 3 months’ imprisonment to 3 years and 3 months (39 months) for committing this offence while on bail.

57.Giving the defendant full credit for his plea of guilty he is sentenced to 2 years and 2 months’ imprisonment (26 months) for Charge 6.

Charge 7 ~ Theft of vehicle licence with Mark IIA

58.There are no guidelines for theft from vehicle.  In the case of Wong Kwong Yin [1998] HKC 844, the appellant pleaded guilty to 6 charges of theft from a vehicle.  The magistrate sentenced the appellant to 4 months’ imprisonment for each charge, with all the sentences to run consecutively, making a total term of 24 months.  The appellate court took the view that the sentence for each charge was beyond reproach^[16].

59.Taking into account that a vehicle licence can only be of lawful use for a motor vehicle that it belongs to, I am satisfied the proper starting point is 7 months’ imprisonment. 

60.I also enhance the starting point by 2 month’s imprisonment to 9 months by reason of the aggravating feature that the defendant committed this offence while on bail.

61.Giving the defendant full credit for his plea of guilty, he is sentenced to 6 months’ imprisonment for Charge 7.

Charge 8 to 10 ~ Using documents with intent to deceive, driving without a valid driving licence and using a motor vehicle without third party insurance

62.These are serious offences.  I am satisfied a starting point of 9 months’ imprisonment for using documents with intent to deceive (Charge 8) is appropriate, 9 weeks’ imprisonment for driving without a valid driving licence (Charge 9); and 6 months’ imprisonment for using a vehicle without third party insurance (Charge 10).

63.The defendant committed these offences while on police bail.  In the circumstances I enhance the starting point to 12 months, 3 months and 9 months respectively for Charges 8, 9 and 10.

64.Giving the defendant full credit for his plea of guilty he is sentenced to 8 month’s imprisonment for Charge 8; 2 months for Charge 9 and 6 months for Charge 10.

Charge 11 ~ Dangerous driving

65.Because of the presence of a specified illicit drug in the defendant’s blood, the maximum sentence for the offence of dangerous driving is increased by 50 per cent.  In this case, it would be up to 4.5 years’ imprisonment as opposed to 3 years’ imprisonment.

66.There is no sentencing tariff for the offence of dangerous driving.  Each case must be decided on its own facts.  The Court of Appeal in SJ v Poon Wing Kay, [2007] 1 HKLRD 660, set out the relevant sentencing principles and the matters that a sentencing court must take into account when considering an appropriate sentence.  The Court must look at the overall circumstances and the overall culpability of the offender.  The sentencing principle is one of deterrence. 

67.Culpability and a selfish disregard for the safety of other road users are often dominating factors in considering the appropriate sentence.  The Court of Appeal has repeatedly said that there is no excuse for driving dangerously since it involves taking a risk whilst in control of a potential lethal machine (see SJ v Lam Siu Tong, [2009] 5 HKLRD 601).

68.The aggravating features in this case are that the defendant drove dangerously to avoid apprehension and obviously put other road users at risk; and he was driving with specified illicit drug being present in his blood.  He failed the drug influence recognition observation test upon arrest.  These are all substantial aggravating factors.  Motorcycle II only came to a halt after it had crashed into the Police Vehicle resulting in damage on both vehicles.  In my view, it is the greatest good fortune that no one was injured and the damage was not greater.

69.Nevertheless, I also must take into account that the defendant’s driving was for a fairly short distance (1.6km) and could not be called “prolonged” in the circumstances.

70.Taking into account the circumstances of the offence and the defendant himself including his previous conviction record for careless driving, I am satisfied a starting point of 2 years’ imprisonment for dangerous driving is appropriate.

71.I also enhance the starting point by 3 months’ imprisonment to 2 years and 3 months (27 months) by reason of the aggravating feature that the defendant committed this offence while on bail.

72.Giving the defendant full credit for his plea of guilty he is sentenced to 18 months’ imprisonment for Charge 11.

Charge 13 ~ Possession of a Dangerous Drug

73.Taking into account the quantity and the defendant’s previous similar record, I am satisfied a starting point of 12 months’ imprisonment is appropriate.

74.I also enhance the starting point by 3 months’ imprisonment to 15 months by reason of the aggravating feature that the defendant committed this offence while on bail.

75.Giving the defendant full credit for his plea of guilty he is sentenced to 10 months’ imprisonment for Charge 13.

Totality ~ Charges 6-11 and 13 ~ the second set of offences

76.Having taken the defendant’s offending in Charges 7 to 10 in determining the sentence for Charge 6, in order to avoid double counting, I order the sentences for Charges 6 to 10 are to run concurrently, making a subtotal of 26 months.

77.Regarding Charge 11 (dangerous driving), whilst the offences are connected, the offence of dangerous driving is distinct from the offence of theft of a motorcycle.  In my view, the offence of dangerous driving adds to the culpability of the defendant.  Regarding Charge 13 (possession of a dangerous drug), it is separate and distinct offending which also adds to the culpability of the defendant.  Hence, it would be inappropriate to order the sentences for Charges 11 and 13 to run concurrently with each other and with that for Charges 6 to 10.  On the other hand, wholly consecutive sentences will be unduly long.

78.In my judgement, the proper overall sentence of 35 months should adequately reflect the overall criminality of this set of seven offences (Charges 6 to 11 and 13).  To achieve that, I order 5 months of the sentence of Charge 11 is to run consecutively to the concurrent sentence for Charges 6 to 10 and the balance concurrent, making a subtotal of 31 months and 4 months of the sentence of Charge 13 is to run consecutively to the sentence for Charges 6 to 11 and the balance concurrent, making a subtotal of 35 months for this set of seven offences.

Totality ~ two sets of offences ~ all eleven charges

79.I have considered the totality principle.  In my judgment, a total sentence of 42 months should adequately reflect the overall criminality of all these eleven offences.

80.To achieve that, I order the 7 months of the 26-month imprisonment for Charges 1 to 4 is to run consecutively to the 35-month imprisonment for Charges 6 to 11 and 13 and the balance concurrent, making a total of 42 months’ imprisonment for all eleven charges.

Disqualification ~ Charges 3 and 10 ~ using a vehicle without third party insurance

81.For the offences of using a motor vehicle without third party insurance, 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 of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

82.Taking into account that there are two separate occasions that the defendant was using a motorcycle without insurance and this is the defendant’s second conviction of the same offence, I am satisfied that concurrent periods of 24 months’ disqualification are appropriate for each of Charges 3 and 10.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 24 months from today for the offences of using a motor vehicle without a third party insurance.

Disqualification - Charge 11 ~ Dangerous driving

83.For the offence of dangerous driving, by virtue of section 37 of the Road Traffic Ordinance, unless the court finds special reasons there is mandatory disqualification.  Because of the presence of a specified illicit drug in the defendant’s blood, the minimum mandatory disqualification period is increased by 50 per cent.  In this case, it would be not less than 9 months as opposed to 6 months.  There are no special reasons in this case.

84.Taking into account the circumstances of the offending, I am satisfied that a period of 3 years’ disqualification is appropriate for Charge 11.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years from today, or until he has attended and completed a Driving Imprisonment Course at his own cost, whichever is the later.

85.This term of disqualification is to run concurrently with those for Charges 3 and 10, making a total of 3 years’ disqualification.

Driving Improvement Course

86.For the offence of dangerous driving, by virtue of section 72A(1A) of the Road Traffic Ordinance, unless the court finds special reasons the defendant shall be ordered to attend and complete a Driving Improvement Course.  There are no special reasons in this case.

87.I order the defendant to attend and complete a driving improvement course at his own costs within the last 3 months of the disqualification period.

88.In summary, the defendant is convicted and sentenced as follows:-

Charge 1 - 22 months’ imprisonment;

Charge 2 - 6 weeks’ imprisonment;

Charge 3 - 4 months’ imprisonment; and

disqualified for 18 months;

Charge 4 - 8 months’ imprisonment;

Charge 6 - 26 months’ imprisonment;

Charge 7 - 6 months’ imprisonment;

Charge 8 - 8 months’ imprisonment;

Charge 9 - 2 months’ imprisonment;

Charge 10 - 6 months’ imprisonment; and

disqualified for 18 months;

Charge 11 - 18 months’ imprisonment;

disqualified for 3 years; and

attend and complete a driving improvement course within the last 3 months of the disqualification period;

Charge 13 - 10 months’ imprisonment.

89.In respect of the first set of offences (Charges 1 to 4), the sentences for Charges 1 to 3 are to run concurrently making a subtotal of 22 months.  For Charge 4, of the 8 months, 4 months will be consecutive to Charges 1 to 3 and the balance concurrent, making a subtotal of 26 months.

90.In respect of the second set of offences (Charges 6 to 11 and 13), the sentences for Charges 6 to 10 are to run concurrently, making a subtotal of 26 months’ imprisonment.  For Charge 11, of the 18 months, 5 months will be consecutive to Charges 6 to 10 and the balance concurrent, making a subtotal of 31 months.  For Charge 13, of the 10 months, 4 months will be consecutive to Charges 6 to 11 and the balance concurrent, making a subtotal of 35 months.

91.7 months of the 26-month imprisonment for the first set of offences (Charges 1 to 4) is to run consecutively to the 35-month imprisonment for the second set of offences (Charges 6 to 11 and 13) and the balance concurrent.

92.In summary, the defendant is sentenced to a total of 42 months’ imprisonment.

93.All disqualification periods are to run concurrently making a total of 3 years.

94.The defendant shall attend and complete a driving improvement course within the last 3 months of the disqualification period at his own cost.

95.The defendant is warned that if he drives while disqualified, he commits a serious offence and is liable to be sentenced to prison.  The defendant is also warned that if he fails to attend and complete a driving improvement course within the prescribed time, he commits an offence and may be prosecuted.