HKSAR v. Lee Wai Shing

DCCC 1013/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1013 OF 2014

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Reasons for Sentence

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Charges

1.The Defendant is to be sentenced on the following charges to which he has pleaded guilty:

(1) Theft of a Honda private car (1^st Charge);

(2) Acting as a member of a triad society (2^nd Charge);

(3) Using a motor vehicle, a Toyota, without third party insurance (4^th Charge).

Facts

2.In the morning on 21 August 2014, acting on information, the police laid ambush in a car park in Yuen Long.  Later, the Defendant drove in a Toyota 7-seater, registration number SM 3692 (the subject-matter of the 4^th Charge), with a passenger LIU.  They alighted from the Toyota and boarded a Honda private car, bearing registration plates “ME 9974” (the subject-matter of the 1^st Charge).  The police arrested the Defendant for taking a conveyance without lawful authority. 

3.The ignition device on the Honda had been prized and its parts were found inside the drawer of the front passenger seat. A screwdriver was on the floor of the driver seat.  Further investigations revealed that the number plates “ME 9974” on the Honda were forged.  The original number plates (later known as “MD 7331”) were missing. 

4.After arrest and caution, the Defendant stated that he had stolen the Honda, that his friend LIU had nothing to do with the theft, and that he was going to use the screwdriver to start the car. 

5.In the first video-recorded interview, the Defendant stated, among others, as follows:

(1) He was a member of Tsim Sha Tsui Sun Yee On and a follower of another member known as “Sai B”, who was under the control of another member known as “Wong Chun”;

(2) He had stolen the Honda about 3 or 4 months ago from Yuen Long before his arrest that morning;

(3) The doors of the Honda were not locked;

(4) He prized open the ignition device and started the engine with the screwdriver;

(5) He had stolen the Honda to pick up other gang members and weapons for gang fights;

(6) He knew from his faction members and from newspapers that there were internal gang fights among different factions of Sun Yee On, possibly due to business conflicts;

(7) He was instructed by senior members of Sun Yee On to retrieve the Honda and hand it to a member known as “Fei Chow”.

6.In the second video-recorded interview, he stated as follows:

(1) He had bought the Toyota from a person called LAU and towed it to Mong Kok;

(2) It had remained there until he used it on 21 August 2014;

(3) He knew it had no valid vehicle licence or third party insurance cover.

7.The Honda (the subject-matter of the 1^st Charge), was in fact a private car, registration number MD 7331, according to vehicle registration records.  The owner LO had made a report for his loss on 1 April 2014.  LO later confirmed it was the Honda recovered by the police. 

8.WONG had purchased the Toyota (the subject-matter of the 4^th Charge) on line.  Its vehicle licence had expired on 6 June 2014. He handed the Toyota to LAU for sale in LAU’s garage.  On 7 June 2014, LAU transferred the Toyota’s insurance policy to another vehicle.  Since then, the Toyota had been without third party insurance.  The Transport Department confirmed that the Toyota had no valid vehicle licence.  Zurich Insurance Group (HK Ltd) confirmed that there was no insurance coverage for the Toyota on 22 August 2014. 

9.The triad expert reviewed the Defendant’s first video-recorded interview and confirmed that the idioms and jargon used by the Defendant therein were commonly-used terms among triad members. 

10.In court, the prosecution clarify that the Defendant had acted as a triad member (the subject-matter of the 2^nd Charge) by stealing the Honda for transporting triad members and weapons in gang fights. 

Personal background and mitigation

11.The Defendant is 41 years of age.  He had received primary education.  He lived with his mother, his girl friend and a 9-year-old son.  He had some records not relevant to our present case.  Of relevance is 1 conviction for claiming to be a triad member, resulting in 8 months’ imprisonment on 19 April 2013.  Also relevant are 2 convictions for using a motor vehicle without third party insurance, resulting in a fine of $1,500 for the first conviction, on 13 September 2005, and a 2-month suspended sentence for the second conviction, on 3 May 2006.  Each time he was disqualified from holding a driving licence for 12 months.   

12.Mr. Boyton submits that there is no evidence that the stolen Honda had been put to use in any actual gang fight.  He accepts, however, that the Honda had been stolen and held for 4 months on a stand-by basis to be called up to transport triad members and weapons in a gang fight. 

Sentencing considerations

13.There are no sentencing guidelines for the offences before me.  I am  not referred to any cases on sentencing, either. 

14.In The Queen v Chan Kwok Leung CACC 114/1995, the defendant was in a party of three which stole a BMW car.  On a separate occasion, he was in a party of four which stole the number plates of a Mercedes Benz car and attempted to steal the car but failed.  The defendant pleaded guilty at a late stage to the offences relating to the Mercedes Benz but was convicted after trial of the offence relating to the BMW.  The starting point for each of the thefts was 2 ½ years.  The Court of Appeal reduced the overall sentence from 5 years to 4 years. 

15.In HKSAR v Yeung Chi Keung & Another CACC 96/1998, the judge took a starting point of 15 months for each charge of “acting as a triad member” where the defendant was the whistle-blower to summon triad members to confront a rival gang.  Whilst no violence had ever taken place, the trial judge regarded the situation as unpredictable.  The Court of Appeal upheld the starting point of 15 months.  

Sentencing this Defendant

16.He had stolen and kept the Honda for 4 months to stand by to transport triad members and weapons in a gang fight. There is no evidence of its being put to use in any actual gang fight.  I take a starting point of 3 years.  The only mitigating factor is his plea of guilty.  After a one-third discount, his sentence is 2 years for the 1^st Charge.

17.Having a private car to stand by to serve his triad society in a gang fight can raise the scale of arms and men.  I take a starting point of 18 months for the 2^nd Charge.  The only mitigating factor is his plea of guilty.  After a one-third discount, his sentence is 12 months. 

18.I take a starting point of 3 months for the 4^th Charge.  I give a one-third discount for his plea of guilty. There are no special reasons not to disqualify him from driving.  I impose a disqualification order of 15 months and a sentence of 2 months for the 4^th Charge. 

19.The sentences shall be concurrent. The overall sentence is 2 years.