HKSAR v. Jim Hoi Ming

DCCC 819/2021

[2022] HKDC 539

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 819 OF 2021

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REASONS FOR SENTENCE

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1.The defendant is convicted on his own plea and agreement to Summary of Facts to a charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210 (Charge 1), a charge of driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (Charge 2), and a charge of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicle Insurance (Third Party Risks)  Ordinance, Cap 272 (Charge 3).

Facts

2.The defendant never had a licence to drive any types of vehicles including motorcycles. 

3.At around 10 pm on 4 April 2021, PW1 parked his motorcycle (“V1”)  bearing chassis number RKRSG4410HA019462 and the registration mark UY2214 in Yuen Long.  He found the same missing on 25 April 2021.  V1 cost around HK$21,000.

4.At around 12 am on 29 May 2021, PW2 parked his motorcycle (“V2”)  bearing registration mark PF4978 together with another one of his motorcycles in Tuen Mun.  On the same day at around 12:45 pm, he returned and found V2 and his other motorcycle each missing a vehicle licence and a licence plate.  

5.On 4 June 2021 at around 4:45 am, a police officer noticed the defendant driving a motorcycle bearing a vehicle licence PF4978 and a licence plate bearing number PF4978. 

6.The defendant said under caution in 3 subsequent video-recorded interviews, inter alia, that his friend, NaNa, called him on 4 June 2021 and asked him to drive the subject motorcycle over to Shan Ha Tsuen.  He was on his way to Shan Ha Tsuen when he was intercepted.  He knew that NaNa had stolen the subject motorcycle.  He also noticed that the ignition key hole was prised.  He also said under caution that the vehicle licence as well as the licence plate were affixed to the subject motorcycle when it was given to him. 

7.PW1 confirmed the subject motorcycle, V1, was the property stolen from him.  PW2 confirmed that the vehicle licence and the licence plate were properties stolen from him. 

Criminal Record

8.The defendant has 8 previous criminal records involving convictions of 11 charges, with one conviction on attempt theft from vehicle for which he was sentenced to 3 months’ imprisonment in 2006, and a burglary conviction in August 2020 for which he was imprisoned for 15 months.  He was released on 3 September 2020. 

Mitigation

9.The defendant is a man of 50 years old.  He is married with 4 children. He worked as a casual gardener earning about HK$1,100 to HK$1,200 per day.  His wife is a psychiatric patient and a housewife. 

10.Defence counsel submitted that the value of the stolen motorcycle was not substantial, it is HK$21,000, and the same could be returned to PW1.  It is said that the handling was not sophisticated nor complicated in nature.  The defendant was actually only helping his friend to drive the vehicle to Shan Ha Tsuen. 

11.Defence counsel referred this court to the case of HKSAR v So Pak Lun, CACC 276/2013, where Hon Yeung VP pointed out that for handling stolen goods and driving while disqualified, as well as using a motor vehicle without third party insurance, in that case, the sentencing starting point should be 2 years’ imprisonment which was reduced to 16 months’ imprisonment after his guilty plea. 

12.He also referred this court to the case of 香港特別行政區 訴 麥沾霆, DCCC 62/2021, where His Honour Judge Yiu adopted 18 months’ imprisonment as the starting point for handling stolen goods involving a motorcycle.  For the two charges of driving without licence and using a motorcycle without third party insurance, in that case the defendant had similar convictions, 3 months’ imprisonment was adopted as a starting point which was reduced to 2 months and the judge ordered that the sentence for these two charges to run concurrently to each other and consecutively to the handling charge. 

13.Defence counsel also submitted that the present case was not as serious as So Pak Lun case because the defendant here did not use the motorcycle for transporting prohibited articles and he did not commit the offence whilst on bail.  It is also submitted that the defendant pleaded guilty at the earliest opportunity and therefore is entitled to a sentencing discount. 

14.Defence counsel also conceded that the defendant is willing to accept disqualification order as the court sees fit. 

Discussion

15.Before sentencing, this court has fully considered submissions by defence counsel, including the legal authorities cited. 

Charge 1

16.Upon conviction on indictment, the maximum sentence for this offence is 14 years’ imprisonment.  There is no sentencing tariff for this offence as the circumstances of each case varies. 

17.The stolen property under this charge is a motorcycle worth HK$21,000. It was stolen before 25 April 2021, ie over a month before the subject offence.  It also involves car plates or licence plates of another motorcycle stolen on 29 May 2021, which was just two days before the offence occurred. The stolen property therefore involves property stolen originated from two motorcycle-related theft.  Whoever the defendant was dealing with was therefore professional thieves involving motorcycles. 

18.This court has considered the Court of Appeal case of So Pak Lun, followed in District Court case of 麥沾霆 where the court adopted 18 months’ imprisonment as the sentencing starting point for handling a stolen motorcycle worth HK$35,000. 

19.In the case of HKSAR v Fan Chi Wai [2016] HKCU 1062, the trial judge adopted 2½ years’ imprisonment for a similar charge, the motorcycle there worth HK$40,000.  In that case, the defendant was found with the stolen motorcycle two days after the same was stolen.  The ignition mechanism had been modified in that case and the rear tail box of the motorcycle had also been removed.  On appeal, the Court of Appeal refused to disturb the sentence imposed by the trial judge for this offence. 

20.In our case here, the defendant was found with the stolen motorcycle over a month after the theft, and the stolen vehicle licence and licence plate within 6 days after the theft.  The stolen motorcycle at the time was fitted with vehicle licence and licence plate stolen from another motorcycle recently.  The motorcycle was not in other way modified as in the Fan Chi Wai case, which is a distinguishing feature.

21.The facts of this case indicated, as said earlier, that the original offence of car theft were committed by professional motorcycle thieves.  It supports the defendant’s association with the professional motorcycle thieves. He was not using the motorcycle for a joyride. 

22.Considering the circumstances of the case, the only appropriate option for sentencing for this offence is immediate imprisonment.  The court has considered the sentencing factors in the UK case of R v Bernard Webbe and Others [2002] 1 Cr App R (S)  22 at 82, followed in Hong Kong courts in cases including but not limited to HKSAR v Xiao Wei [2003] 3 HKLRD 1063, HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360. 

23.This court notes the proximity in time of the theft of the licence plate and the vehicle licence, and the fact that on the defendant’s own admission, he was instructed to deliver the motorcycle to a specified place by the motorcycle thief, knowing the same was stolen property in the early hours of the day. 

24.Considering all the circumstances of the offence, this court considers the appropriate sentencing starting point is 21 months’ imprisonment.  The defendant has 2 previous convictions relating to theft, the last one in August 2020.  He was released in September 2020 and he committed the present offence 9 months after his release.  On this occasion, this court is not going to enhance the sentencing starting point for this charge. 

25.The defendant has pleaded guilty and is therefore entitled to full one-third sentencing discount.  He is therefore sentenced to 14 months’ imprisonment by reason of his guilty plea for this charge. 

Charge 2

26.On the first conviction of this offence, a person is liable to a fine of $5,000 and to imprisonment for 3 months. 

27.This is the first conviction of the defendant and this court finds that the appropriate sentencing starting point is 9 weeks’ imprisonment. 

28.The defendant is afforded one-third sentencing discount by reason of his guilty plea, he is accordingly sentenced to 6 weeks’ imprisonment for this charge. 

Charge 3

29.A person convicted of this offence is liable to a fine of $10,000 and to imprisonment for 12 months. 

30.This is the first conviction of the defendant as he does not ever have any driving licence.  The commission of this offence posed risk to other road users and property around.  This court finds the appropriate sentencing starting point for this offence is 6 months’ imprisonment. 

31.Again, he is afforded one-third sentencing discount by reason of his guilty plea and is therefore sentenced to 4 months’ imprisonment for this charge. 

32.On conviction of this charge the court shall, unless for special reasons thinks fit to order otherwise, order the defendant be disqualified from holding or obtaining a driving licence of a vehicle for such period as the court may determine, being not less than 12 months or more than 3 years from the date of conviction. 

33.This court sees there is no special reason in this case, accordingly, the court now orders the defendant be disqualified from holding or obtaining driving licence of any class for 30 months from today. 

Totality

34.Having regard to the total culpability of the defendant in the whole incident, this court considers that the total sentence of 19 months’ imprisonment just and a proportionate. 

35.Accordingly, 1 month of the sentence in Charge 2 shall run consecutively to the sentence of Charge 3, the rest to run concurrently.  The sentences of Charges 2 and 3 to run wholly consecutive to the sentence of Charge 1. 

36.The total sentence for the defendant in this case is therefore 19 months’ imprisonment.