HKSAR v. WONG CHIU HEI

DCCC 135/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 135 OF 2016

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REASONS FOR SENTENCE

1.  The defendant faces 4 charges of "Theft" (Charges 1, 4, 5 and 6); 2 charges of "Driving while disqualified" (Charges 2 and 8); 2 charges of "Using a motor vehicle without third party insurance" (Charges 3 and 9); and 1 charge of "Dangerous driving" (Charge 7).

2.  He pleaded guilty to Charges 2 to 9.  The prosecution applied to leave Charge 1 in the court file; not to be proceeded against him without leave of court.  I granted the application.

Summary of Facts

Incident on 6 October 2015 (Charges 2 to 4)

3.  Mr. MAK (PW2) is the registered owner of private car EC1282 ("Car 2").  About 7:00 a.m. on 2 October 2015, PW2 parked Car 2 at Sheung Fung Street Market Carpark ("Carpark 1") in Wong Tai Sin.

4.  About 7:00 p.m. on 7 October 2015, PW2 went to Carpark 1 and discovered Car 2 missing (Charge 4).

5.  CCTV footage captured the defendant driving private car TD7538 ("Car 1") into Carpark 1 at 9:40 p.m. on 6 October 2015.  At 10:43 in the evening, he drove Car 1 away from Carpark 1 (Charges 2 and 3); following which, Car 2.

6.  On 10 October 2015, Car 2 was found by the Police at Shan King Estate, Tuen Mun.  Its ignition switch was prized and removed.

Incident on 7 October 2015 (Charge 5)

7.  Mr. WONG (PW3) is the primary user of private car CN5962 ("Car 3").  About 9:30 a.m. on 6 October 2015, PW3 parked Car 3 at Lai Bo Garden, Sham Shui Po ("Carpark 2").

8.  About 8:30 a.m. on 7 October 2015, PW3 went to Carpark 2.  He discovered the door and ignition switch of Car 3 having been prized.  He reported the matter to the Police but did not drive Car 3 away. About 4:30 in the afternoon, PW3 returned and found Car 3 missing.

9.  CCTV footage captured Car 3 leaving Carpark 2 at 4:41 p.m. on 7 October 2015; following which, Car 2.

Incident on 13 October 2015 (Charge 6)

10.  Mr. CHING (PW4) is the registered owner of private car RT745 ("Car 4").  About 7:30 p.m. on 13 October 2015, PW4 parked Car 4 at Tin Heng Estate, Tin Shui Wai ("Carpark 3"). 

11.  About 9:30 a.m. on 14 October 2015, PW4 went to Carpark 3 and discovered Car 4 missing.

12.  CCTV footage captured Car 3 and Car 4 leaving Carpark 3 together at 7:51 p.m. on 13 October 2015.

Incident on 15 October 2015 (Charges 7 to 9)

13.  About 5:20 p.m. on 15 October 2015, police officers found   Car 3 parked at Kam Shui Road near Kam Sheung Road.  They laid ambush nearby to observe Car 3.  About 9:10 p.m. on the same day, the defendant approached Car 3, opened its door, sat on the driver's seat and started the engine.  The police officers came out to intercept him. 

14.  PCs 33355 and 2041 drove police vehicles PV3465 and PZ5293 respectively to block Car 3 at its front and rear.  The defendant reversed Car 3 and bumped against the right side of PZ5293.  He then drove  Car 3 forward and bumped against PV3465 and a lorry parked nearby.  He reversed Car 3 and bumped against PZ5293 once more before stopping (Charges 7, 8 and 9).  The Police then arrested him.

Admissions and Investigation Results

15.  Under caution, the defendant admitted having stolen Car 3.  He did not want to be intercepted by the Police, so he drove Car 3 to bump against the police vehicles in order to escape.

16.  In his 3^rd and 4^th video recorded interviews, the defendant admitted that he and his friend named FUNG drove Car 1 to a carpark in Wong Tai Sin.  FUNG broke into Car 2 and started its engine, whilst the defendant remained in Car 1.  They then respectively drove Car 2 and Car 1 away.  In short, the defendant admitted that he had driven Car 1 (Charges 2 and 3) to assist the stealing of Car 2 (Charge 4).

17.  In his 1^st and 2^nd video recorded interviews, the defendant admitted that he and FUNG drove Car 2 to a multi-storey carpark in Cheung Sha Wan.  FUNG broke into Car 3; whereas the defendant started its engine and drove it away.  The defendant also admitted in details how he stole Car 3 on 7 October 2015 (Charge 5) and drove Car 3 dangerously on 15 October 2015 (Charges 7, 8 and 9).

18.  Car 4 was found by the Police in Sham Shui Po around      11:00 p.m. on 16 October 2015.  A pair of forged number plates (SK9099) were attached on Car 4.  Its ignition switch was prized and detached; a device for starting the engine was installed near the steering wheel.

19.  In his 5^th video recorded interview, the defendant admitted that he stole Car 4 together with FUNG and another male named "Ah Shui" (Charge 6).  They drove Car 3 to a carpark at Tin Heng Estate.  FUNG broke into Car 4; whereas the defendant and Ah Shui acted as lookouts.  FUNG started the engine of Car 4 and drove it away.  The defendant and Ah Shui left in Car 3 at the same time.

20.  Records of the Octopus card seized from the defendant revealed that it was used for entering and leaving Carpark 3 at 6:34 p.m. and 7:55 p.m. respectively on 13 October 2015.

21.  The defendant has never been issued a driving licence.  He is also subject to a disqualification order from 6 October 2014 to 5 October 2016.  Hence, there was no valid third party insurance coverage when he drove Car 1 and Car 3 on the respective offence dates.

Mitigation

22.  The defendant is 25 and has 10 conviction records, which included 2 offences of "Dangerous driving", 1 offence of "Driving whilst disqualified", 3 offences of "Using a motor vehicle without third party insurance" and 8 theft-related offences.  According to his antecedent statement, the defendant is single and resides with his parents.

23.  In mitigation, defence counsel Mr. YUEN submitted that he has written to the prosecution indicating the defendant's intention to plead guilty before this case was briefed out to fiat counsel.  The motor vehicles involved are not of high value.  The defendant made full and frank confessions upon arrest.  Except in Charge 7, the defendant only drove the stolen cars in and out of carparks.  In Charge 7, the defendant was nervous when he found himself being surrounded by police officers.  Finally, Mr. YUEN submitted that all 8 offences were committed within a short period of time adopting the same modus operandi.

Sentence

Charges 4, 5 and 6

24.  The defendant is a repeated offender of theft-related offences.  In relation to stealing motor vehicles, he has 1 conviction of "Taking conveyance without authority" in 2011 and several convictions of "Handling stolen goods" and "Theft" in 2012.  His latest conviction of "Attempted theft" (DCCC 687/2015) is also related to stealing a private car. 

25.  I have had the benefit of reading the Reasons for Sentence of my colleague Judge Woodcock in DCCC 687/2015.  The offences in that case took place in March 2015.  I too would adopt a starting point of 3 years' imprisonment each for Charges 4, 5 and 6.  With the guilty pleas, the sentence is reduced to 2 years for each charge.

Charges 2 and 3

26.  The defendant is no stranger to these 2 offences either.  Plainly, Charge 2 constitutes a flagrant breach of a disqualification order.  In respect of Charge 3, the defendant has deprived all potential victims of adequate financial protection.  Immediate custodial sentences are required for both charges.  I adopt a starting point of 6 months' imprisonment each for Charges 2 and 3.  With the guilty pleas, the sentence is reduced to 4 months for each charge.

Charges 7, 8 and 9

27.  Regarding Charge 7, the defendant's driving manner was appalling.  He drove in such a dangerous way in order to avoid apprehension by the Police.  This is his 3^rd conviction of similar offence; an immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.  Although the defendant drove dangerously and disregarded the safety of other road users, Charge 7 does not fall within the category of the worst of its kind.  Bearing in mind that its maximum prison term is 3 years, I adopt a starting point of 15 months.  With the guilty plea, the sentence is reduced to 10 months.

28.  Regarding Charges 8 and 9, the reasons for Charges 2 and 3 apply.  Furthermore, the defendant committed the same set of offences twice within 10 days, which went beyond a flagrant breach of his disqualification order and disregard of the lack of insurance protection for other road users.  I adopt a starting point of 9 months' imprisonment each for Charges 8 and 9.  With the guilty pleas, the sentence is reduced to 6 months for each charge.

Overall Sentence

29.  The defendant stole a total of 3 private cars within a week.  In the course of doing so and in order to avoid apprehension by the Police, he further committed Charges 2, 3, 7, 8 and 9.  I adopt a global starting point of 4.5 years' imprisonment for all 8 charges.  With the guilty pleas, the overall sentence is reduced to 3 years.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 4, 5 and 6 concurrent;

(ii) Charges 2 and 3 concurrent; but consecutive to Charges 4 to 6; and

(iii) Charges 7, 8 and 9 concurrent; but 8 months consecutive to Charges 2 to 6.

Thus, arriving at a total prison term of 3 years for all 8 charges.

30.  I am aware that in January 2016, the defendant was sentenced to 2 years' imprisonment in DCCC 687/2015 for "Attempted theft" (acting in concert with 2 others to steal a private car).  I have considered the totality principle.  I nevertheless order the sentences in the present case to run consecutive to the sentence in DCCC 687/2015.

31.  For Charges 2, 3, 8 and 9, I make a disqualification order of 3 years[1] each; and they shall run concurrently from the date of conviction[2].  For Charge 7, I make a disqualification order of 2 years[3], which shall not start to run until the defendant finishes serving the term of imprisonment imposed in the present case[4].

32.  The defendant's driving manner and his repeated flagrant disobedience of disqualification orders render him a serious threat and danger to other road users.  Had he been a licensed driver, I would have no hesitation in ordering him to be re-tested[5].  Should he ever wish to obtain a driving licence, he would be required to pass all necessary tests. On this basis, I do not see the need to order him to complete a Driving Improvement Course.  I make no order in this regard.