HKSAR v. Lui Man Kit

DCCC 25/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 25 OF 2009

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REASONS FOR SENTENCE

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1.The defendant pleads guilty to two charges of theft, theft of a motor vehicle and theft from a vehicle (charges 2 & 3), contrary to section 9 of the Theft Ordinance, Chapter 210; one charge of driving whilst disqualified (charge 4), contrary to section 44(1)(b) of the Road Traffic Ordinance, Chapter 374; one charge of driving without third-party insurance (charge 5), contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 272 and one charge of using a document with intent to deceive (charge 6), contrary to section 111(1)(a) of the Road Traffic Ordinance, Chapter 374.  

2.In summary between the 8th and 9th November 2008 the defendant stole private car GR 8751 which had been parked by the owner on Castle Peak Road (charge 2).  The defendant then changed the number plate to GR 3638 (charge 6).  At 2.50 p.m. on the 1st December the police saw the defendant sitting in the driver’s seat of a private car parked outside House No 363, Ho Chung Village, Sai Kung, with the engine still running.  The registration mark was GR 3638.  The owner of GR 8751 later identified the car as his car GR 8751. 

3.Not only did the car bear a false number plate but also the vehicle licence displayed was for registration number HR 9618.  The night before the son of the registered owner of HR 9618 parked the car in Plover Cove Garden car park.  The next day he found the lock of the driver’s door had been prized off and the vehicle licence together with some cleaning equipment and four spark plugs missing (charge 3).

4.When the police approached GR 3638 the defendant intended to drive away.  The police immediately ordered the defendant to stop and alight from the car.  The defendant claimed he had just driven someone to the scene.  Subsequent police enquiries revealed that the defendant was disqualified from driving (charges 4 & 5).

5.When the police searched the car they found in the boot the cleaning equipment stolen from HR 9618.  Under caution the defendant admitted he stole the vehicle licence and the cleaning equipment from HR 9618 (charge 3).

6.In passing sentence I have carefully considered everything said on the defendant’s behalf by Mr Yu together with the letter submitted by his mother.  I take into account the defendant was cooperative when arrested by the police. 

7.Theft of a motor vehicle is a very serious offence.  Mr Yu refers me to two authorities HKSAR v WONG Sze-chun HCMA 913/2002 and Attorney General v NG Kwok-hung CAAR 7/1996 which I have considered.  In HKSAR v CHENG Chun-ming CACC 356/2000 the Court of Appeal said, “Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length.  This is absolutely necessary to act as a deterrent to a prevalent crime.”

8.In HKSAR v LAM Yui-yiu CACC 373/2006 the Court of Appeal upheld a sentence of 4 years imprisonment where the defendant handled a stolen taxi, which had been fitted with false plates to match a vehicle licence which had been stolen.  The court also took into account the taxi was not covered by insurance.  The defendant stole the vehicle, changed the number plate and displayed a vehicle licence, which he had stolen from another vehicle, albeit this did not match the false number plate.  Accepting that the theft of a taxi is more serious than theft of an old car     I am satisfied the proper starting point for the theft of the motor vehicle is 3 years imprisonment.

9.The defendant is properly regarded as a persistent offender having committed five offences of theft from vehicle and other offences of dishonesty (see HKSAR v CHAN Pui-chi [1999] 2 HKLRD 830).  I am satisfied the proper starting point after trial for the charge of theft from vehicle is 12 months imprisonment.

10.I am not aware of any reported cases of using a document with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance.   I am satisfied in the circumstances the proper starting point after trial is   9 months imprisonment.

11.Driving whilst disqualified and driving without third-party insurance are serious offences.  The defendant’s last appearance in court was for driving whilst disqualified and driving without third-party insurance for which he received a short period of imprisonment.  The proper starting point after trial on both charges is 3 months imprisonment (see for example HKSAR v NG Suen-wai [2003] 3 HKLRD 663). 

12.Whilst the offences are to a degree related the theft of the vehicle licence and the changing of the number plate are separate and distinct offences clearly committed to cover up the original theft.  Similarly the driving whilst disqualified and driving without third-party insurance are separate and distinct from the theft charges.  Subject to totality of sentence consecutive sentences are therefore appropriate.  Taking into account this was a course of conduct over a period of about three weeks    I am satisfied an overall starting point of 3 years and 9 months imprisonment is appropriate. 

13.Giving the defendant full credit for his pleas of guilty and taking into account the special circumstances of this case the defendant is sentenced as follows:

Charge 2 - 1 year and 9 months imprisonment;

Charge 3 - 7 months imprisonment;

2 months consecutive and 5 months concurrent to charge 2;

Charge 4 - 2 months imprisonment;

Charge 5 - 2 months imprisonment;

to be served concurrently but consecutive to charges 2 & 3;

Charge 6 - 5 months imprisonment;

2 months consecutive and 3 months concurrent to charges 2-5;

This makes a total sentence to be served by the defendant of 2 years and 3 months imprisonment, which I am satisfied properly reflects the defendant’s criminality on these five charges.

14.On charges 4 and 5 the defendant is disqualified from holding or obtaining a driving licence for all vehicles for concurrent periods of 3 years for driving whilst disqualified and 12 months for driving without third-party insurance, which are the minimum periods for a person with previous similar convictions