HKSAR v. Au Yeung Chun-ngai

DCCC 503/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 503OF 2013

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Reasons for Sentence

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Charges

1.The defendant pleads guilty to the following charges:

(1) Handling stolen property, a motorcycle (1^st charge);

(2) Using a registration mark on the same vehicle with intent to deceive (2^nd charge);

(3) Using the same vehicle without third party insurance (3^rd charge).

Facts

2.Cheung was the owner of a Honda motorcycle, purple in colour, bearing registration mark NE 665.  At 2000 h on 24 September 2012, he parked in on the pavement in Shatin but found it missing after an hour.  He reported the loss to the police. 

3.At 0131 h on 12 November 2012, the police responded to a road traffic accident between a motorcycle bearing registration mark NV 997 and 2 other vehicles in Causeway Bay.  The registration mark hanging on the motorcycle was damaged.  It was a white and red Honda motorcycle.  The defendant told the police that he was its driver and its registration mark was NV 997.  However, the police record revealed that NV 997 ought to be a black Yamaha motorcycle. 

4.As the colour and brand differed, the police arrested the defendant for the offence of using a false instrument.  After caution, he claimed that he had paid a deposit to purchase it from the owner through a friend.  There was no proof of his payment of deposit.  He admits in court that the motorcycle had no vehicle licence disc and that he had attached the registration mark NV 997 taken from his own motorcycle, then in poor repair, to intent to hold it out as his own.  He did so because he believed it was stolen property.  These facts constituted the 1^st and the 2^nd charges. 

5.It transpired that Cheung’s third party insurance for the motorcycle had expired on 8 November 2012.  Therefore on 12 November 2012 the defendant used the motorcycle without third party insurance.  These facts constituted the 3^rd charge. 

Personal background and mitigation

6.The defendant is 28 years of age, F.1 education level.  He lives with his wife and their 5-year-old son.  He was a chef before arrest.  His wife is a housewife.  His family and colleagues wrote mitigating letters pleading for a lenient sentence. He had a number of convictions but none similar to the present offences.    

7.According to the witness statement of Cheung, the owner, he had bought the motorcycle at $18,000 about 2 ½ years before it was stolen.

8.His counsel submits that there was no one injured and the want of third party insurance had no actual prejudice to anyone.  The defendant has paid $9,000, the cost of repair to the motorcycle, as compensation into court.    

Sentencing considerations

9.The prosecution has found a case in Chinese, HKSAR v LAM Wah Kit （藍華傑）CACC 195/2012, as a comparison.  The defence addresses me with this case.  It concerned a defendant pleading guilty to 4 charges, namely handling a stolen motorcycle (1^st charge), driving without a licence (3^rd charge), using the motorcycle without third party insurance (4^th charge) and trafficking in ketamine (5^th charge).    He was sentenced to 5 years based on a notional overall starting point of 7 ½ years.  The starting point for the charge of handling adopted in the District Court as approved in the Court of Appeal was 2 ½ years.  There were certain overlapping sentences for the 4 charges in question.    

10.As the Court of Appeal was predominantly concerned with the overall sentence and not the individual sentences, I find it hard to apply directly the 2 ½ year starting point to the same charge of handling in our present case.     

11.I have considered 3 other cases.  In HKSAR v Cheng Chi Wai （鄭志偉）[2012] 4 HKLRD 360, the Court of Appeal adopted the observations of the English Court of Appeal decision in R v Bernard Webbe & Ors [2002] 1 Cr App R (S) 22 at 82:

(1) Particular seriousness in the primary offence.

(2) High value of the goods to the loser, including sentimental value.

(3) The fact that the goods were the proceeds of a domestic burglary.

(4) Sophistication in relation to the handling.

(5) A high level of profit made or expected by the handler.

(6) The provision by the handler of a regular outlet for stolen goods.

(7) Threats of violence or abuse of power by the handler over others, for example, an adult commissioning criminal activity by children, or a drug dealer pressurizing addicts to steal in order to pay for their habit.

(8) As is statutorily provided by section 151(2) of the Powers of Criminal Courts (Sentencing) Act 2000, the commissions of an offence while on bail.

We also agree with the mitigating factors identified as being among those relevant by the sentencing panel: namely, low monetary value of the goods, the fact that the offence was a one‑off offence, committed by an otherwise honest defendant, the fact that there is little or no benefit to the defendant, and the fact of voluntary restitution to the victim.

We also agree with the [English Sentencing Advisory] Panel that other factors to be taken into account include personal mitigation, ready cooperation with the police, previous convictions, especially for offences of dishonesty and, as statutorily provided by section 152 of the Powers of Criminal Courts (Sentencing) Act 2000, a timely plea of guilty. (as per Rose LJ)

12.The defendant there had operated a sophisticated and well-equipped garage to transform 6 stolen cars into unrecognizable cars over a period of 8 years.  As it was a very serious case of its kind, the original sentence of 3 ½ years was increased to 5 years on review. 

13.In R v Tang Hing Wong CACC 476/1994 and HKSAR v Cheng Chun Ming CACC 356/2000, the Court of Appeal had regarded 3 years as the proper starting point for theft or handling cars, especially of luxury cars, by an opportunistic first-time offender.   

Sentencing this defendant

14.The defendant was having the motorcycle for personal use.  There was nothing to link him up to the the owner’s loss 1 ½ months ago.  It had been worth $18,000 before 2 ½ years of depreciation.  It was a one-off handling.  There was not much planning in the handling save the fixing of a false registration mark.  The motorcycle has been returned to the owner.  I take a starting point of 2 years and 3 months for the 1^st charge.    I reduce it to 18 months for the plea of guilty.  I further reduce it by 2 months for the compensation to the owner. The sentence is 16 months.     

15.I take 9 months for the 2^nd charge.  I reduce it to 6 months for the plea of guilty. The culpability has been encapsulated in the sentence for the 1^st charge. The 2 sentences shall be concurrent.    

16.I take 3 months as the starting point for the 3^rd charge.  I reduce it to 2 months for the plea of guilty.  There is no special reason offered for not disqualifying him from holding a driving licence.  He is to be disqualified for 12 months from holding any driving licence. 

17.Under the totality principle, the sentence shall be reduced in appropriate cases but I see no reason to reduce it here.  His overall sentence is 18 months, composed of the following parts:

(1) 16 months for the 1^st charge;

(2) 6 months for the 2^nd charge, concurrent with the 1^st charge;

(3) 2 months for the 3^rd charge, consecutive to the 1^st charge.