HKSAR v. PANG HO YIN, PATRICK AND ANOTHER

DCCC 1111/2017

[2018] HKDC 1206

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1111 OF 2017

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REASONS FOR SENTENCE

1.  D1 pleads guilty to one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[1] (charge 3) and one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[2] (charge 4).

2.  D2 pleads guilty to three charges of theft of a motorcycle (charges 5, 7 & 9) and two charges of theft of number plates and vehicle licences (charges 6 & 8), contrary to section 9 of the Theft Ordinance[3]; one charge of driving without a valid driving licence (charge 10); one charge of using a motor vehicle without third party insurance (charge 11) and three charges of using documents on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance (charges 12, 13 & 14).

3.  Full particulars of the offences are set out in the facts admitted by D1 and D2 on 29 August 2018.

Charges 3, 4, 5 & 13

4.  In summary at around 7:30 p.m. on 22 April 2017 Mr Sek Wai Leung parked his motorcycle KC 9208 at the pathway outside Ka Ling School of Precious Blood in Sham Shui Po.  The next day Mr Sek found his motorcycle missing.  The chassis number of the motorcycle was NC31-1017282 (“V3”) (charge 5).

5.  On 13 July 2017 the police recovered the motorcycle in the Po Tin Estate Loading Bay in Tuen Mun.  

6.  CCTV footage for 13 July 2017 captured D1 driving the motorcycle in the loading area.  D1 did not have a valid driving licence or third party insurance (charges 3 & 4).

7.  On 21 July 2017 Mr Sek positively identified his motorcycle.  The oil tank and wheel rims had been sprayed with a different colour; the ignition keyhole had been prized and the number plate and vehicle licence for KC 9208 had been replaced with the number plate and vehicle licence GR 7511 (charge 13).

Charges 8, 9, 10, 11 & 12

8.  Motorcycle GR 7511 belonged to Mr Wong Hoi Sang.  At around 6:00 p.m. on 12 July 2017 Mr Wong parked his motorcycle on Tin Sau Road in Tin Shui Wai.  The next day Mr Wong found his motorcycle missing.  The chassis number of the motorcycle was NC31-1024218 (“V2”) (charge 9).  The police recovered the motorcycle the same day in Tuen Mun. 

9.  CCTV footage for 13 July 2017 captured D2 driving the motorcycle in the Po Tin Estate Loading Bay.  D2 did not have a valid driving licence or third party insurance (charges 10 & 11).

10.  On 6 September 2017 Mr Wong positively identified his motorcycle.  The ignition keyhole had been prized and the number plate and vehicle licence of GR 7511 had been replaced with the number plate and vehicle licence UA 5997 (charge 12).  

11.  Motorcycle UA 5997 belonged to Mr Cheung Chi Man.  On 1 July 2017 Mr Cheung parked his motorcycle on the pathway at Fu Fat Lane in Tuen Mun.  On 5 July 2017 Mr Cheung found the number plate and vehicle licence missing (charge 8). 

Charges 6, 7 & 14

12.  In summary at around 7:30 a.m. on 18 June 2017 Mr Riaz Khan parked his motorcycle SV 3849 under the flyway near Nga Cheung Road in Yau Ma Tei.  At around noon the same day Mr Khan found his motorcycle missing.  The chassis number of the motorcycle was NC31-1451010 (“V4”) (charge 7). 

13.  The police recovered the motorcycle on 13 July 2017 in the Po Tin Estate Loading Bay in Tuen Mun.  

14.  On 19 July 2017 Mr Khan positively identified his motorcycle.  The ignition keyhole had been prized and the number plate SV 3849 at the back of the motorcycle had been replaced with the number plate NF 9346 together with a vehicle licence for NF 9346.  The vehicle licence for SV 3849 was found at the front of the motorcycle (charge 14).

15.  Motorcycle NF 9346 belonged to Mr Ho Wai Lun.  At around 5:00 p.m. on 30 May 2017 Mr Ho parked his motorcycle outside Ever Gain Plaza, Kwai Chung Road in Tsing Yi.  On 21 June 2017 Mr Ho found his motorcycle missing (“V1”) (charge 6[4]). 

Arrest of D2

16.  D2 was arrested on 9 October 2017.  In a video recorded interview D2 admitted, inter alia, that he stole the three motorcycles V2, V3 and V4; he used a hammer and screwdriver to damage the keyhole to enable him to start the engine with any key; he stole the number plates and vehicle licences of NF 9346 (V1) and UA 5997 and he replaced different number plates and vehicle licences to confuse the genuine owners.  

D1

Mitigation

17.  In passing sentence, I take into account everything said on behalf of D1 by Ms Chow, including that the distance driven by D1 was short and the exposure of risk to the public was less than on a public road or highway.  I also note that D1 did have a driving licence but not for a motorcycle. 

18.  Accepting that the distance driven was short and not on the road, the offences nevertheless remain serious.  The loading area was part of a car park and was clearly an area used by many people.      

19.  Taking into account that D1 has previous convictions for both offences, I am satisfied the appropriate starting point for driving without a valid driving licence is 3 months’ imprisonment and for using a vehicle without third party insurance is 6 months’ imprisonment. 

20.  Giving D1 credit for his pleas of guilty he is convicted and sentenced to 2 months’ imprisonment on charge 3 and 4 months’ imprisonment on charge 4.  I am satisfied concurrent sentences are appropriate. 

Disqualification

21.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

22.  I am satisfied that a period of 18 months’ disqualification is appropriate.  D1 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today. 

23.  D1 is warned that driving whilst disqualified is a serious offence which attracts immediate imprisonment.

D2

Mitigation

24.   In passing sentence, I take into account everything said on behalf of D2 by Mr Gopaoco, including that D2 fully cooperated with the police on arrest. 

Theft of vehicle

25.  There are no guidelines for offences of theft of vehicles or handling stolen vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[5]:

“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.”

26.  In HKSAR v Fan Chi Wai leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[6].

27.  The three motorcycles were purchased for $15,000 in 2007 (charge 5); $15,000 in 2014 (charge 7) and $20,000 in 2011 (charge 9)[7].

28.  Mr Gopauco has submitted for the consideration of the court the judgment of the Court of Appeal in HKSAR v Muhammad Waqas[8], HKSAR v Yeung Chi Wa[9]and HKSAR v Kan Tak Man[10]together with the reasons for sentence in HKSAR v Arif Aqib[11].  I note none of these cases involve theft of motorcycles or theft of more than one vehicle.

Sentence

Charges 5 & 13

Charge 5 – theft of KC 9208 (V3)

29.  Taking into account the value of the motorcycle, the ignition keyhole had been prized; the colour of the motorcycle had been sprayed a different colour and the number plate and vehicle licence changed with the number plate and vehicle licence from another stolen vehicle GR 7511 (V2), I am satisfied that a starting point of 2 years and 6 months’ imprisonment is appropriate for theft of KC 9208. 

30.  D2 is a persistent offender having numerous previous similar convictions.  D2 was last released from prison in March 2017.  In April 2017 D2 committed the first of the theft offences (charge 5).  In the circumstances I enhance the starting point by 6 months to 3 years’ imprisonment.  

31.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment. 

Disqualification

32.  The traffic record reveals that D2 has never passed a driving test having only held a provisional driving licence which expired in 2011.  The fact that D2 is not permitted to drive a vehicle is in my view an aggravating feature of the theft.

33.  I am satisfied that a disqualification order under section 69(1)(c) of the Road Traffic Ordinance is appropriate.  D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years[12]. 

Charge 13 – using a number plate and vehicle licence with intent to deceive

34.  I regard the use of false plates and vehicle licences to avoid detection as a serious offence.  This is the third time D2 has been convicted of this offence.  I am satisfied a starting point of 12 months’ imprisonment is appropriate.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 8 months’ imprisonment.

35.  Having taken into account the use of the number plate and vehicle licence in aggravation of the theft a concurrent sentence is appropriate.

Charges 8, 9, 10, 11 & 12

Charge 9 – theft of GR 7511 (V2)

36.  Taking into account the value of the motorcycle, the ignition keyhole had been prized and the number plate and vehicle licence changed with the number plate and vehicle licence stolen from another vehicle UA 5997, I am satisfied that a starting point of 2 years and 6 months’ imprisonment is appropriate for theft of GR 7511, which I enhance by 6 months to 3 years’ imprisonment by reason of D2’s persistent offending. 

37.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment. 

Disqualification

38.  I am satisfied that a disqualification order under section 69(1)(c) of the Road Traffic Ordinance is appropriate.  D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.

Charges 8 & 12 – theft and use of the number plate and vehicle licence from UA 5997

39.  I am satisfied the appropriate starting point for each charge is 12 months’ imprisonment.  Giving D2 full credit for his pleas of guilty he is convicted and sentenced to 8 months’ imprisonment on each charge.    

40.  Having taken into account the theft and use of the stolen number plate and vehicle licence in aggravation of the theft, concurrent sentences are appropriate.

Charges 10 & 11 – driving without a valid driving licence and third party insurance

41.  Driving without a valid driving licence and third party insurance are serious offences, in particular where an offender has never passed a driving test.    

42.  Taking into account that D2 has four similar convictions for both driving without a valid driving licence and third party insurance, I am satisfied a starting point of 6 months’ imprisonment is appropriate for driving without a valid driving licence and 9 months’ imprisonment for using a vehicle without third party insurance.

43.  Giving D2 credit for his pleas of guilty he is convicted and sentenced to 4 months and 6 months’ imprisonment respectively.    Concurrent sentences are appropriate for driving without a valid licence and no insurance.  The offences having been committed on the same day as the theft of the motorcycle I order the sentences to be served concurrent to the sentence for the theft of the motorcycle (charge 9). 

Disqualification

44.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

45.  I am satisfied that disqualification for a period of 2 years is appropriate.  D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years. 

Charges 6, 7 & 14

Charge 7 – theft of SV 3849 (V4)

46.  Taking into account the value of the motorcycle; the ignition keyhole had been prized and the number plate and vehicle licence changed with the number plate and vehicle licence stolen from another vehicle NF 9346 (V1), I am satisfied that a starting point of 2 years and 6 months’ imprisonment is appropriate for theft of SV 3849, which I enhance by 6 months to 3 years’ imprisonment by reason of D2’s persistent offending.    

47.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 2 years’ imprisonment.  

Disqualification

48.  I am satisfied that a disqualification order under section 69(1)(c) of the Road Traffic Ordinance is appropriate.  D2 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.

Charges 6 & 14 – theft and use of the number plate and vehicle licence from NF 9346

49.  I am satisfied the appropriate starting point for each charge is 12 months’ imprisonment.  Giving D2 full credit for his pleas of guilty he is convicted and sentenced to 8 months’ imprisonment on each charge.    

50.  Having taken into account the theft and use of the stolen number plate and vehicle licence in aggravation of the theft, concurrent sentences are appropriate.

Totality

51.  In my view sentence must reflect that D2 stole three motorcycles involving altogether ten offences.  I am satisfied a total sentence of 3 years and 4 months’ imprisonment properly reflects D2’s criminality on the ten charges and takes into account D2’s personal circumstances and the seriousness of the offences[13].  

52.  D2 is convicted and sentenced as follows:

Charges 5 & 13

Charge 5 - 2 years’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years;

Charge 13 - 8 months’ imprisonment concurrent to charge 5.

Charges 8, 9, 10, 11 & 12

Charge 8 - 8 months’ imprisonment;

Charge 9 – 2 years’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years;

Charge 10 - 4 months’ imprisonment;

Charge 11 – 6 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years; and

Charge 12 - 8 months’ imprisonment.

Charges 8, 9, 10, 11 & 12 concurrent with 8 months consecutive and 16 months concurrent to charges 5 & 13

Charges 6, 7 & 14

Charge 6 - 8 months’ imprisonment;

Charge 7 - 2 years’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years;

Charge 14 - 8 months’ imprisonment;

Charges 6, 7 & 14 concurrent with 8 months consecutive and 16 months concurrent to charges 5, 8, 9, 10, 11, 12 & 13

53.  The total sentence to be served is 3 years and 4 months’ imprisonment.  All periods of disqualification are ordered to be served concurrently making a total disqualification of 4 years from today.  D2 is warned that after serving his prison sentence he will still be disqualified from driving.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.