HKSAR v. Choi Yiu Cho

DCCC 943/2024

[2025] HKDC 767

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 943 OF 2024

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REASONS FOR SENTENCE

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Plea

1.Upon the defendant’s guilty plea and admission of facts, the defendant (“D”)  is convicted on Charge 1 and Charge 2. 

Agreed facts

Charge 1 (Theft)

2.On 31 March 2022 at about 12:00 am, Mr Chan (“PW1”)  parked a motorcycle (with chassis number RFGLF18WYDS****** and registration mark RZ****[1])  (the “Stolen Motorcycle”), outside no. 481 Shanghai Street, Mong Kok, and left two vehicle keys on it.  The Stolen Motorcycle valued at around HK$33,825 and belonged to THE EXPRESS LIFT COMPANY LIMITED.  There were also a white helmet (valued at around HK$800)  and some working tools (valued at around HK$500)  inside the Stolen Motorcycle.  At about 7:30 am, PW1 returned to no. 481 Shanghai Street and discovered that the Stolen Motorcycle (and the items therein)  were missing.  PW1 made a report to the police.

3.On 25 April 2022 at about 10:22 pm, PC18772 (“PW2”)  spotted D near no. 475 Shanghai Street, Mong Kok.  D acted furtively by looking around and attempted to turn around when seeing the police car AM6016.  PW2 therefore intercepted D.  There was a motorcycle helmet on the floor next to D.  D was wearing a pair of gloves and he had with him a black bag and a black suitcase.  Upon search, a vehicle plate XJ958 and its corresponding vehicle licence were found inside the black suitcase.  D claimed that the vehicle plate and licence belonged to his friend.  Six keys were also found in D’s trouser pocket.  During the search, D kept looking at the motorcycle (later confirmed to be the Stolen Motorcycle with chassis number RFGLF18WYDS******)  parked outside no. 475 Shanghai Street.  However, the Stolen Motorcycle was with a different vehicle plate, namely HH6301.  Upon investigation, the police found that HH6301 was forged.  The police also managed to use two of the six keys found on D to start the Stolen Motorcycle and unlock its motorcycle trunk.

4.On the same day at about 10:45 pm, PW2 arrested D for “theft”.

Charge 2 (Possession of a dangerous drug)

5.On the same day at about 10:55 pm, a body search was conducted on D outside no. 475 Shanghai Street.

6.Upon search, one plastic bag that contained another plastic bag, containing 6.75 grammes of a solid containing 5.51 grammes of ketamine (“E1”)  was found on D between D’s pants and underpants.

7.On the same day at about 10:57 pm, PW2 arrested D for “possession of dangerous drugs”.  Under caution, D claimed that he bought the drugs for self-consumption.

8.The estimated street value of E1 in April 2022 was HK$3,199.50.

9.PW1 confirmed that the helmet found on the floor next to D was not the lost helmet.

Defendant’s background and mitigation

10.D is now aged 37.  He is married with a child aged 7.  He has 5 sets with a total of 6 previous convictions, which are mostly drugs related offence.  His last conviction in 2018 is trafficking in dangerous drugs which he received 6 years’ imprisonment.  He is a recidivist. 

11.Mr Cheung, counsel for D, has these salient points in mitigation.  He suggested to the court to consider 18 months and 9 to 12 months’ imprisonment as the starting point for Charge 1 and Charge 2 respectively.  Unfortunately, Mr Cheung did not cite any authority in support of his propositions.  

Sentencing discussion

Charge 1

12.Theft of vehicle may attract a starting point of 3 years imprisonment: HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400.  Theft of motorcycle may be treated as less serious and still may attract 2 to 2.5 years of imprisonment: HKSAR v So Pak Lun CACC 276/2013.  Further, according to s.69(1)(c) of the Road Traffic Ordinance Cap. 374, theft of vehicle may result in a period of driving disqualification.  D did drive the stolen motorcycle with a forged vehicle plate.  D ought to be disqualified for 12 months.  

13.In Yu Chi Chiu, the Court of Appeal said in paragraph 10 of the judgment:

“……… theft of a vehicle is a serious crime for the following reasons:

i. Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

ii. A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters and all types of memory cards or access cards.)

iii. A vehicle is often parked in the public place, making it prone to be a target of theft.

iv. To the owner of a private vehicle, the loss of his vehicle will cause great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.”

14.I adopt a starting point of 2.5 years’ imprisonment (30 months)  for Charge 1, and having given one third discount for his guilty plea, the sentence for Charge 1 is 20 months’ imprisonment.  I also impose a period of driving disqualification order for 12 months with effect from the date of sentence: 孔令國 [2010] 4 HKLRD 359; HKSAR v Wong Mun Ming [2016] 1 HKLRD 1057; HKSAR v Lee Sui Wah [2018] HKCA 406.  Although I was told that D does not have driving licence, the meaning of disqualification includes those who do not have licence and cannot acquire driving licence subsequently in the specified period.  

Charge 2

15.Charge 2 involves 5.51 grammes of ketamine. I consider it as a latent risk factor that justifies an enhancement of sentence: Mok Cho Tik CACC 165/2000 and taking into account the quantity of the dangerous drugs and D’s criminal record, I adopt the starting point of 18 months’ imprisonment.

“[Para. 17] … We remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months, (and that is the range that has been adopted particularly for cases in the District and High Court). But that is not the be all and end all of the appropriate starting point. It assumes cases in which a sentence of imprisonment rather than a rehabilitative measure is deemed necessary; and it does not seek to exclude magistrates from imposing lesser terms for very small quantities where the circumstances so warrant. Obviously the quantity will be the main governing factor which will determine where the starting point will lie. If an offender is a persistent offender he can expect the starting point to be higher than it otherwise would be. The existence of the risk factor and the degree of risk is not a matter of mathematics upon which this court should provide a tariff. Amongst the obvious factors to be taken into account are whether the offender is in employment; whether the drugs are kept in a place to which others have access; whether the offender has convictions for trafficking; and of course the quantity of drugs. The full circumstances of the risk must be assessed.”

16.Having given one third discount for his guilty plea, the sentence for Charge 2 is 12 months’ imprisonment.

17.To avoid total sentence being excessive (totality principle), I order that 18 months’ imprisonment in Charge 1 be made consecutive with Charge 2, the total sentence is 2 years and 6 months’ imprisonment (30 months) and disqualification from driving for 12 months with effect from the date of sentence.