HKSAR v. Cheung Ka on

DCCC 808/2023

[2024] HKDC 861

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 808 OF 2023

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REASONS FOR SENTENCE

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1.Mr Cheung pleaded guilty before me to 5 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 a day unknown between 20 January 2023 and 2 March 2023, both days inclusive, in Hong Kong, stole a motor cycle bearing registration mark TA4695, one motor cycle case, two helmets and one vehicle licence, property belonging to Ha Yeuk Nam.

3.Charge 2 is Attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210, and sections 159G and 159J of the Crimes Ordinance, Cap 200. Particulars are that he, on 2 March 2023, near Lamppost No FB2357, Tin Yau Road, Tin Shui Wai, New Territories, in Hong Kong, attempted to steal one motor cycle bearing registration mark WB5717, property belonging to Leung Ho Yin.

4.Charge 3 is Driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374. Particulars are that he, on 2 March 2023, in Hong Kong, drove a motor vehicle, namely a motor cycle bearing registration mark TA4695, on a road when he was not the holder of a valid driving licence in respect of the class of vehicle he was driving.

5.Charge 4 is 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. Particulars are that he, on 2 March 2023, in Hong Kong, used a motor vehicle, namely a motor cycle bearing registration mark TA4695 on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance, Cap 272.

6.Charge 5 is Failing to display a valid vehicle licence, contrary to regulation 25(1)  and 60(3)  of the Road Traffic (Registration and Licensing of Vehicles)  Regulations, Cap 374E. Particulars are that he, on 2 March 2023, in Hong Kong, being the driver of a motor vehicle, namely a motor cycle bearing registration mark TA4695, upon or used the said motor vehicle on a road failing to display a valid vehicle licence.

Facts admitted by Mr Cheung

7.On 2 March 2023, at about 0450 hours, near lamppost FB2357, Public Motor Cycle Parking Space, Tin Yan Road, Tin Shui Wai, Mr Cheung was riding on a stationary motorcycle bearing registration number TA4695 (V1). V1 had no vehicle licence displayed but its engine and headlight were on. Mr Cheung was chatting with a female beside him. She was seated on a separate motorcycle also with engine and headlight on. They were both wearing helmets and gloves, and were looking around during the chat. Unbeknown to them, they were under covert observation by a suspecting police constable on patrol PW1.

8.Suddenly, Mr Cheung alighted from V1 and walked near a third motorcycle bearing registration number WB5717 (V2)  parked nearby. Mr Cheung lifted up the cloth cover of V2 and after taking a look for a while, took from his rucksack a screwdriver and started tampering with the area below the hand clutch and ignition switch of V2.

9.PW1 intercepted Mr Cheung. Upon search of Mr Cheung and his rucksack, PW1 found and seized the following (together “the tools”):

(a)  6 screwdrivers;

(b)  3 pairs of pliers;

(c)  4 drills;

(d)  3 spanners;

(e)  2 hexagon keys; and

(f)  One pair of gloves.

10.It was later discovered that Mr Cheung’s driving licence, which was a subject of disqualification order made on 20 June 2018, was only valid for private cars and light goods vehicle.

11.Mr Cheung was arrested.

12.Ha Yeuk Nam (PW2)  and Leung Ho Yin (PW3)  the rightful owners of respectively V1 and V2 were located.

13.PW2 last parked V1 at Ma Sik Road, Sheung Shui, at 2230 hours on 20 January 2023. She found V1 missing at 0630 hours on 24 January 2023. She lodged a police report.

14.PW2 identified V1 by its chassis numbers. PW2 was able to confirm the following:

(a)  V1 had been repainted from white to black;

(b)  The windbreak had been changed from colourless to brown;

(c)  The motorcycle case had been replaced; and

(d)  Two helmets (valued at $600 in total)  which were kept inside the original motorcycle case, as well as the motor vehicle licence, had gone missing.

15.The ignition switch of V2 was damaged as a result of what Mr Cheung had done. The repair and maintenance cost came to $3,000.

16.The third party risk insurance policy in respect of V1 did not provide coverage for Mr Cheung.

17.At the scene of arrest, Mr Cheung admitted under caution:

(a)  He stole V1 in a fruit market at Yau Ma Tei two weeks previously;

(b)  The tools were used to dismantle motorcycle(s);

(c)  He intended to steal V2;

(d)  He drove V1 to the scene of arrest from Hung Fuk Estate, Hung Shui Kiu; and

(e)  His driving licence was disqualified early the previous year.

18.In two VRIs both conducted on 3 March 2023, Mr Cheung admitted under caution:

(a)  He stole V1 from a parking space at Lai Cheung Road, Yau Ma Tei;

(b)  He drove V1 from Kowloon to Hung Shui Kiu, Tin Shui Wai, at 2300 hours on 1 March 2023 to find his friend for supper;

(c)  He tampered with the ignition switch of V2; and

(d)  He knew his driving licence was terminated and he was not the owner of V1.

19.Mr Cheung now admits that between 20 January 2023 and 2 March 2023, in Hong Kong, he stole V1, one motorcycle case, two helmets, and one vehicle licence, property belonging to PW2.

Criminal and Road Traffic records

20.Under his criminal record, Mr Cheung has 65 previous convictions, 45 of which are similar to the various offences (save and except the offence subject of Charge 5)  being dealt with on this occasion.

21.Under his road traffic record, Mr Cheung has 15 convictions but they were simply duplications of what was contained in his criminal record.

Antecedents

22.Mr Cheung is aged 51 (50 at the time of the offences), educated to F5 level, was a construction worker at the time of arrest. Mr Cheung is not married and he was living in private housing in Kowloon.

Mitigation

23.Mr Dickson Li of counsel assigned by the Director of Legal Aid mitigated on behalf of Mr Cheung. The following is a summary of the mitigation submissions.

24.Mr Cheung completed Form 5 and was in the field of decoration. He wishes to find jobs in decoration (woodwork)  after release. Mr Cheung has a strong penchant for (driving)  motor cycles since his youth days. This irresistible penchant ended him up in stealing them as he did not have the means to buy one. The stolen motor cycles were not for resale but were for his own use.

25.Mr Cheung is fed up with his previous prison experiences and he has decided to turn over a new leaf.

26.In the case of HKSAR v Yu Chi Chiu, CACC 198/2015, a case of stealing of a lorry, the Court of Appeal said a starting point of 3 years’ imprisonment is appropriate.

27.In the case of HKSAR v Chow Tsz Lung (transliteration), DCCC 862/2022, the court sentenced the accused to prison terms of 14 months for theft of a motor cycle, 2 months for driving without 3^rd party insurance, and 2 weeks for driving whilst disqualified.

28.Mr Li reminded the court of the totality principle.

29.Mr Li submitted on behalf of Mr Cheung a mitigation letter in Chinese written by Mr Cheung himself. The contents are generally that Mr Cheung is deeply regretful for his past deeds; that he has attended Christian courses and computer course and has obtained a “safety card” for working on construction sites; that he plans to re-enter the decoration field upon release; that he promises not to re-offend and turn over a new leaf in life.

30.Mr Li also submitted two Christian course completion certificates and a Department of Health letter certifying that Mr Cheung has since the date of arrest applied to register himself on the Centralised Organ Donation Register.

31.Upon enquiry by the court, Mr Li submitted there were no special reasons not to impose the mandatory disqualification order under Charge 4.

Sentence

32.Theft of a motor vehicle is a serious offence. Depending on the length of time before recovery, it has the potential of causing immense inconvenience to the owner of the vehicle. In the present case, fortunately only one to two weeks have elapsed before recovery of V1. However, I cannot ignore the fact that not only was the vehicle stolen together with some accessories, the constituent parts have also been transformed or replaced. These additional matters must be reflected in the sentence on Charge 1.

33.In the case of V2 under Charge 2, it was not successfully stolen; but there was damage to the ignition switch requiring repair and maintenance cost to the tune of $3,000.

34.For these reasons, for Charge 1, I shall take an initial starting point of 3 years’ imprisonment; and for Charge 2, I shall take an initial starting point of 2 years 9 months’ imprisonment.

35.Mr Cheung has an awful record for theft offences. He just cannot stop re-committing vehicle thefts and appurtenant road traffic offences. Three months will be added to the initial starting points for Charges 1 and 2 to increase the deterrent effect.

36.For Charge 3 (driving without driving licence), the maximum penalty for a second or subsequent conviction is a fine of $10,000 and imprisonment for 6 months. As this is Mr Cheung’s 8^th conviction for the same offence, I shall adopt 6 months’ imprisonment as starting point.

37.For Charge 4 (using motor vehicle without third party insurance), the maximum penalty is a fine of $10,000 and imprisonment for 12 months. As this is Mr Cheung’s 12^th conviction for the same offence, I shall adopt 12 months’ imprisonment as starting point.

38.For Charge 5 (failing to display valid vehicle licence), the maximum penalty is a fine of $2,000 and imprisonment for 3 months. As Mr Cheung has no previous similar conviction, I shall simply adopt 30 days’ imprisonment as starting point.

39.Mr Cheung pleaded guilty in good time earning for himself the customary 1/3 discount in sentence. There are no other mitigating factors that I can see which has the effect of reducing his sentences further.

40.As for disqualification from holding or obtaining a driving licence, only Charge 4 calls for a mandatory order unless special reasons exist. For Charges 1 and 2, that is optional and at the discretion of the court.

41.On this occasion, it’s not Mr Cheung’s manner of driving that is the root of the problem. Hence, I shall only impose disqualification order where it is mandatory.

42.Section 4(2)(a)  of Cap 272 calls for a disqualification order with a maximum length of 3 years from the date of conviction. I did not find any special reasons exist for not ordering a disqualification order of the maximum length.

43.Charges 1 and 2 relate to offences completely separate from one another. The associated sentences ought to be served consecutively.

44.The Charge 4 offence may be said to be a concomitant offence to the offence subject of Charge 3 in the particular circumstances of this case. Hence, I shall order their sentences to run concurrently.

45.The Charge 5 offence is completely separate and was not a necessary offence flowing from the theft of V1 (Charge 1)  given that V1 was bearing the genuine registration plate TA4695 which made V1 easily identifiable as a stolen vehicle.

46.Charges 3, 4 and 5 as a group are completely separate from Charges 1 and 2.

47.I shall consider and apply the principle of totality before imposing the final sentence.

(Mr Cheung, please stand)

48.On Charge 1, the sentence is 2 years and 2 months’ imprisonment.

49.On Charge 2, the sentence is 2 years’ imprisonment.

50.On Charge 3, the sentence is 4 months’ imprisonment

51.On Charge 4, the sentence is 8 months’ imprisonment.

52.On Charge 5, the sentence is 20 days’ imprisonment.

53.I order that the sentences on Charges 3 and 4 are to run concurrently between themselves. This is the Group A sentence of 8 months.

54.I order that 2 months of the Group A sentence is to run consecutively to the sentence on Charge 2. The aggregate sentence of Charges 2, 3 and 4 then becomes the Group B sentence of 2 years and 2 months.

55.I order that the Group B sentence is to run concurrently with the sentence on Charge 5 to become the Group C sentence of 2 years and 2 months.

56.I order that 1 year and 10 months of the Group C sentence is to run consecutively to the sentence on Charge 1, making a final sentence of 4 years’ imprisonment.

57.On disqualification order, under Charge 4, I order that Mr Cheung be disqualified from holding or obtaining a driving licence, in respect of all classes of vehicle, for a period of 3 years from the date of conviction.