HKSAR v. Yau Wai Kwong

DCCC 52/2024

[2024] HKDC 801

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 52 OF 2024

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REASONS FOR SENTENCE

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1.Mr Yau pleaded guilty before me to two charges on a Charge Sheet as follows.

2.Charge 1 is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that he, on 7 May 2023, near Lamppost No AD7426, Heng Fai House, Tin Heng Estate, Tin Shui Wai, New Territories, in Hong Kong, together with another person unknown, stole one motor cycle with chassis number LC6TCJ3D3H0002888, property belonging to Chung Chi Wai.

3.Charge 2 is Forgery of documents, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374.  Particulars are that he, on 1 June 2023, in Hong Kong, with intent to deceive, used one pair of number plates with registration mark XL901 on a motor vehicle, namely, a private car with chassis number JHMGD18705S208370.

Facts admitted by Mr Yau

4.PW1 was the registered owner of the motorcycle specified in Charge 1 (“the Motorcycle”).  On 7 May 2023, at 11 am, PW1 parked the Motorcycle near Lamppost No AD7426, Heng Fai House, Tin Heng Estate, Tin Shui Wai.  When he returned at around 3 pm the same day, he found it missing.  He made a report to the police.

5.Footage of CCTV at the vicinity of Heng Chui House, Tin Heng Estate, showed the following:-

(a)  at 12:31 pm on 7 May 2023, a medium goods vehicle (MGV)  came to park outside Heng Fai House; and

(b)  at 12:35 pm, two unknown males loaded the Motorcycle into the cargo bay of the MGV and immediately fled on board the MGV.

6.Upon investigation, the police found that the number plate of the MGV was “TT4940”.

7.On 31 May 2023, the owner of the MGV was located.  It was learned that the owner had lent the spare key of the MGV to Mr Yau.  On 1 June 2023, police located Mr Yau at his residence.  At 8 am, Mr Yau was arrested.  Under caution, he denied his involvement in the theft of the Motorcycle.

8.Subsequently, during cautioned VRIs, Mr Yau admitted he was driving the MGV at the time of the offence.

9.At 9:42 am on the day of arrest, the police found a private car (“V1”)  parked outside Mr Yau’s residence with a pair of number plates “XL901” affixed at the front and rear of the vehicle.  Upon search, the car key of V1 was found on Mr Yau.  Under caution, Mr Yau admitted that V1 belonged to him.  Upon examination of V1, it was found that:-

(a)  V1 had a chassis number specified under Charge 2;

(b)  the number plates “XL901” were false number plates; and

(c)  the true registration number of V1 was “XC901”.

Criminal record

10.Mr Yau has 9 previous convictions two of which were for theft and they were both recorded in 2020.

Antecedents

11.Mr Yau is aged 49 (48 at the time of the offences), educated to F3 level.  In 2017, Mr Yau started working as a cross-boundary driver.  He was living alone in Lau Fau Shan.

Mitigation

12.Mr Victor Chiu of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Yau.  The following is a summary of the mitigation submissions.

13.Mr Yau got divorced in 2022, and lived in a stone house at Shan Tung Street, Lau Fau Shan.  He used to work as a cross-boundary truck driver but became unemployed as a result of COVID outbreak.  He is now relying on CSSA to the monthly amount of $2,700.  As a result of an attack 10 odd years ago, he only has the eyesight of his left eye.

14.The greatest mitigation for Mr Yau is his timely pleas of guilty.  Mr Yau has, among other things, 2 previous convictions for theft in 2020.  Even so, he is not a persistent offender of any of the offences in the present case.

15.The motorcycle in the present case is a second-hand vehicle bought by PW1 for $9,000 on 9 February 2023; value is therefore not high.

16.Mr Chiu referred to HKSAR v So Pak Lun, CACC 276/2013 (Chinese judgment).  There, the applicant pleaded guilty to 12 charges one of which was theft of a motorcycle of $28,000 in value.  The applicant committed the offence 4 months after release from prison.  He had 19 previous criminal records covering 37 convictions most of which related to offences of dishonesty, drugs and traffic offences.  Considering the background of the applicant and how the offences were committed, the Court of Appeal stated that for theft of the motorcycle with value of $28,000, the appropriate starting point should be 2 years’ imprisonment.

17.Mr Chiu submitted that although Mr Yau committed the theft offence under Charge 1 with another person (which is an aggravating factor), given the relatively small value of the motorcycle in question and Mr Yau’s light criminal record, a starting point of no more than 2 years would be a sufficient starting point for Charge 1.

18.Regarding Charge 2, Mr Chiu also relied on two District Court cases, namely HKSAR v Cheung Chi Chiu, DCCC 728/2022, and HKSAR v Yau Wing Cheong, DCCC 490/2022, to invite the court to take 6 months’ imprisonment as starting point.

19.Mr Chiu reminded the court of the principle of totality and asked for partially concurrent sentences.

20.Mr Chiu submitted on Mr Yau’s behalf a mitigation letter written in Chinese by Mr Yau himself.  The contents are generally that Mr Yau is regretful and promises not to re-offend; he asks for a lenient sentence so he may start afresh and take care of his aged mother.

Sentence

21.On Charge 1, there are no guidelines for offences involving theft of motor vehicles which include motorcycles.  Although in a number of cases, a 3 years’ starting point has been taken (see for example, HKSAR v Kan Tak Man, CACC 122/2016, and HKSAR v Muhammad Waqas [2019] 4 HKLRD 323), the court can take into account the value of the vehicle, the circumstances in which it was stolen and the damage caused to the vehicle and the nuisance caused to the owner.

22.Here, I take into account that although the motorcycle in question had a low value, it had been used by the owner for only 3 months before it was stolen.  The vehicle was never recovered thus the inconvenience caused to the owner was permanent.  I take also into account the offence was committed not by Mr Yau alone but together with an accomplice using an MGV borrowed from yet a third person (who got into trouble initially with the police).

23.For all these reasons except the joint enterprise aspect, I adopt an initial starting point of 2½ years’ imprisonment.  For the joint enterprise aspect, I increase it by 3 months to arrive at a final starting point of 2 years and 9 months.

24.On Charge 2, I accept the invitation of Mr Chiu and adopt as a starting point 6 months’ imprisonment.

25.Mr Yau pleaded guilty in good time and so is entitled to the customary 1/3 discount in sentence.  There are no other mitigating factors of weight to warrant another reduction in sentence.

26.The two offences are different in nature and were committed at different places and time.  Subject only to totality, the sentences in relation thereto ought to be served consecutively.

27.However, before arriving at the final sentence, I will consider the principle of totality.

(Mr Yau, please stand)

28.The sentence on Charge 1 is 22 months’ imprisonment.

29.The sentence on Charge 2 is 4 months’ imprisonment.

30.I order that 2 months of the sentence on Charge 2 is to run consecutively to the sentence on Charge 1, making an aggregate sentence of 24 months’ imprisonment.