HKSAR v. Cheung Chi Chiu

DCCC 728/2022

[2023] HKDC 924

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 728 OF 2022

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REASONS FOR SENTENCE

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1.The defendant has been charged with 2 counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (Charges 1 and 2), 1 count of forgery of a document, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap. 374 (Charge 3), 1 count of failing to display a valid vehicle licence, contrary to regulations 25(1)  and 60(3)  of the Road Traffic (Registration and Licensing of Vehicles)  Regulations, Cap. 374E (Charge 4), 1 count of driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap. 374 (Charge 5), 1 count of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap. 272 (Charge 6)  and 1 count of going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap. 210 (Charge 7).  He pleaded guilty to Charges 1 to 6 and not guilty to Charge 7.  Upon the prosecution’s application, Charge 7 is to be left on court file and not to be proceeded with without court’s leave.

Facts

2.Full details of the facts of the case have been set out in the Amended Summary of Facts dated 19 June 2023, to which the defendant admitted.  I am not going to repeat all the facts here.

3.In gist, Long Term Decoration and Contracting Limited was the registered owner of a private car bearing registration number XA 2884 (“V1”). 

4.On 10 March 2022, V1 was parked at parking space 217 in Lok Man Sun Chuen Carpark, 120-160 Kau Pui Lung Road, Hung Hom, Kowloon (“the Carpark”).  The parking space was rented on a monthly basis.  V1 stayed there since then.

5.Mr. Tam Kam Wah, Simon was the registered owner of a private car bearing registration number VP 5417 (“V2”).  He only had one key for V2 and he never lent V2 to anyone or authorize anyone to use it.  The vehicle licence of V2 expired on 17 July 2021.

6.On 15 November 2021, Mr. Tam parked V2 with damaged rear windscreen at parking space 232 in the Carpark on an hourly basis.  V2 stayed in that parking space since then.  On 20 January 2022, Mr. Tam covered the rear windscreen with a big black plastic bag.  He left the key of V2 at the door of the driver’s seat without locking V2.

7.The Carpark adopted an automatic number plate recognition system for entry or exit (“the System”).  The number plate of V1 had been recorded in the database of the System as a vehicle parking on a monthly basis.  Thus, the gate would be opened when the number plate of V1 was shown to the System.

8.For V2, as Mr. Tam failed to pay the parking fee since he first parked V2 in the Carpark, V2 could only exit the Carpark when the driver paid the parking fee to the security guard at the exit.

9.In the morning of 13 April 2022, the front number plate of V1 (“Number Plate”)  was found missing.  CCTV footage of the Carpark revealed that a vehicle with the front Number Plate and rear number plate of VP 5417 (i.e. registration number of V2)  left the Carpark at 0628 hours on 13 April 2022.  Thus, a report was made to the police.

10.At around 2258 hours on 13 April 2022, PC 25760 (“the Officer”)  found V2 (with the front and rear number plates VP 5417 and not bearing the Number Plate of V1)  parked on the roadside near Shing Kwok House, Kwai Shing East Estate. The rear windscreen was broken.  He put V2 under observation.  At around 0125 hours on 14 April 2022, the Officer saw the defendant walking out from Shing Kwok House.  He intercepted the defendant.  Upon search, the key of V2 and some other items were found in the defendant’s possession.

11.The Officer thus arrested the defendant.  Under caution, the defendant admitted stealing V2 for self-use as he saw the rear of V2 was damaged and he found the key in V2 and that his learner’s licence had just expired.

12.Upon checking, the defendant’s learner’s licence expired on 30 March 2022.

13.CCTV footage of the Carpark captured the defendant approached V1 and later drove away V2. 

14.In subsequent interview, the defendant stated under caution that he knew Mr. Tam and was told where V2 was parked but Mr. Tam did not know he had stolen V2.  He saw that the vehicle licence of V2 had expired and did not want to attract the attention of the staff in the Carpark.  He therefore used a front number plate of another vehicle for exit. He stole V2 for commuting because his mobility was impaired.  He further stated that he had a full licence but it was not renewed.  He obtained a learner’s licence in March 2021 and it expired on 30 March 2022.

15.At the material times, the defendant:

(a)  stole the Number Plate (Charge 1);

(b)  stole V2 (Charge 2);

(c)  with intent to deceive, used the Number Plate on V2 (Charge 3);

(d)  used V2 on a road failing to display a valid licence plate (Charge 4);

(e)  drove V2 on a road when he was not holder of a valid driving licence in respect of a vehicle of the class of vehicle which he was driving (Charge 5); and

(f)  used V2 on a road without third party insurance (Charge 6).

Mitigation

16.The defendant is aged 61, divorced and lived with his mother prior to the arrest.  He has a total of 54 criminal conviction records.

17.He had worked as security guard and street hawker before his last arrest. He was unemployed since around February 2022 and he relied on comprehensive social security assistance since then.

18.For Charge 1, given the small value of the Number Plate, a starting point of 3 weeks’ imprisonment was suggested.

19.For Charge 2, the defence referred to a number of authorities[1] and submitted that V2 was recovered within 24 hours, the victim suffered no loss, the value of V2 was low, it was taken from a place where it had been parked for months, no damage was caused and the nuisance to owner, if any, was low.  This Court was urged to be lenient and to adopt a starting point of 2 years’ imprisonment.

20.For Charge 3, it was submitted that the defendant has 2 previous similar convictions and the reason for a false front number plate was not to avoid detection, but to gain exit at the carpark gate.  It was suggested that a starting point of 6 months’ imprisonment would reflect the criminality in the case.

21.For Charge 4, defence suggested a starting point of 3 weeks’ imprisonment.

22.For Charge 5, it was submitted that the defendant has 3 previous similar convictions and a starting point of 3 months’ imprisonment would be appropriate.

23.For Charge 6, it was submitted that the defendant has 5 previous similar convictions and this Court may consider 9 months’ imprisonment as the starting point.  The defence has no submissions on disqualification.

24.Although the defendant is a repeated offender, the defence urged this Court not to enhance the sentence as the defendant had stayed out of trouble since after 2006 to 2022.  It was accepted that the defendant committed the present offences while on bail for the offences in KTCC 55/2022.  The defence urged this Court not to enhance the sentence on this basis.

25.This Court was also urged to consider the totality principle and impose total concurrent sentence for the present offences.

26.It was further submitted that the main mitigating factor is the defendant’s plea.  The defendant urged this Court to give him a chance to turn over a new leaf so that he could take care of his 85-year-old mother who is suffering from heart disease and depression.

Sentence

27.There is no sentencing guideline in respect of the offences in question.  When considering sentence, I bear in mind that the defendant committed the present offences while he was on bail for the offences in KTCC 55/2022.  This is an aggravating feature and justifies enhancement of sentence.  Further, the defendant has previous conviction records of similar offences in the past.  In particular, he has 17 previous convictions relating to dishonesty (Charges 1-2), 6 previous convictions for using a motor vehicle without third party insurance (Charge 6), 4 previous convictions relating to driving without a valid licence (Charge 5)  and 2 previous convictions relating to forgery (Charge 3).  Despite he has been imprisoned and also disqualified from driving or obtaining driving licence for substantial periods in respect of the past offences, the defendant still committed the present offences.  It clearly shows the defendant was not deterred, he deliberately breached the law and selfishly disregarded the safety of other road users solely for his own interest. The fact that the defendant is a repeated offender in such circumstances is clearly another factor for enhancement of sentence even though he had at some stage stayed out of trouble for over 10 years.    

28.For Charge 1, it was clearly committed to facilitate the defendant’s theft of V2.  While the value of the Number Plate may be low, it was not recovered and the loss of it would still cause inconvenience to the owner of V1.  I consider the appropriate starting point to be 5 months’ imprisonment.  It is to be enhanced by 0.5 month for the defendant as a repeated offender and 0.5 month for committing the offence while on bail. Given the defendant’s plea, the sentence is reduced to 4 months’ imprisonment.

29.For Charge 2, I accept the submissions from the defence that the loss and/or inconvenience caused to owner would be low.  I consider the appropriate starting point to be 24 months’ imprisonment. It is to be enhanced by 2 months for the aggravating feature of repeated offender and 1 month for committing the offence while on bail.  Given the defendant’s plea, the sentence is reduced to 18 months’ imprisonment.

30.For Charge 3, I consider the appropriate starting point be to 6 months’ imprisonment.  It is to be enhanced by 1 month for the aggravating feature of repeated offender and 0.5 month for committing the offence while on bail.  Given the defendant’s plea, the sentence is reduced to 5 month’s imprisonment.

31.For Charge 4, I consider the appropriate starting point to be 3 weeks’ imprisonment.  The defendant has no previous conviction of same offence and given the short imprisonment term, I am not going to enhance the sentence for the factor that the defendant committed this offence while on bail for other offences.  Given the defendant’s plea, the sentence is reduced to 2 weeks’ imprisonment. 

32.For Charge 5, I consider the appropriate starting point to be 12 weeks’ imprisonment.  It is to be enhanced by 2 weeks for the aggravating feature of repeated offender and 1 week for committing the offence while on bail.  Given the defendant’s plea, the sentence is reduced to 10 weeks’ imprisonment.

33.For Charge 6, I consider the appropriate starting point to be 7 months’ imprisonment.  It is to be enhanced by 1 month for the aggravating feature of repeated offender and 1 month for committing the offence while on bail.  Given the defendant’s plea, the sentence is reduced to 6 months’ imprisonment.  As far as disqualification is concerned, it is a forward-looking and preventative measure which should have actual effect.  Given the defendant is going to serve a substantial term of imprisonment, I consider the appropriate period of disqualification is 30 months.  The defendant is disqualified for a period of 30 months.

34.Taking into consideration the totality principle, I consider a total sentence of 20 months is sufficient to reflect the criminality in this case.  I therefore order 2 months of the sentence for Charge 1 to run consecutively to the sentence for Charge 2, while the sentences for Charges 3-6 are to run concurrently to the sentences for Charges 1-2, making a total sentence of 20 months’ imprisonment, disqualification for 30 months.