HKSAR v. YAU WING CHEONG

DCCC 490/2022

[2023] HKDC 312

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 490 OF 2022

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to a total of 11 charges, namely 2 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210, 4 charges of Handling stolen goods, contrary to section 24 of the same ordinance, and one charge of Going equipped for stealing, contrary to section 27(1)  of the same ordinance; 2 charges of Forgery of documents, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374, and one charge of Driving without a valid driving licence, contrary to section 42(1)  and (4)  of the same ordinance; one charge of Using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicle Insurance (Third Party Risks)  Ordinance, Cap 272.

Facts

Background

2.  A light goods vehicle with number plates bearing registration mark CE8189 and chassis number JTFSAFAP408019857 (the LGV)  was stolen from a carpark in Kwun Tong on 7 July 2021. This LGV, which was worth HK$380,000, is the stolen goods with regard to the 3^rd charge of Handling stolen goods.

3.  A pair of number plates bearing registration mark VJ5222 was stolen from the vehicle bearing those plates in Sham Shui Po on 14 August 2021. These plates are the subject matter of the 8^th charge of Handling stolen goods.

4.  A pair of number plates bearing registration mark MM6963 was stolen from the vehicle bearing those plates in Mong Kok between 6 and 7 September 2021. These plates are the subject matter of the 9^th charge of Handling stolen goods.

5.  A pair of number plates bearing registration mark WR5826 was stolen from the vehicle bearing those plates in Tai Po between 6 and 7 September 2021. These plates are the subject matter of the 10^th charge of Handling stolen goods.

1^st charge (Theft)

6.  Shortly before noon on 30 August 2021, a delivery worker parked a medium goods vehicle at a car park of Wyler Centre Phase 2 in Kwai Chung. While this worker was away from the vehicle making delivery, the defendant and an unknown male took from this unattended medium goods vehicle 2 boxes of electronic components worth about HK$33,000 and walked out of the carpark with them.

7.  A light goods vehicle with number plates TH220 had entered the carpark about an hour before the theft occurred.

2^nd charge (Theft)

8.  In the forenoon of 6 September 2021, a transportation worker placed pallets of goods at the loading area on the 2^nd floor of Grandtech Centre in Shatin pending delivery to a client. He left the goods unattended after checking that the pallets were in order. Shortly after a light goods vehicle with number plates VJ5222 had been driven into the loading area around 1152 hours, the defendant and another male took away 6 boxes of hard discs worth around US$3,900 from those pallets and loaded them into the light goods vehicle, which was then driven away.

3^rd to 11^th charges

9.  On the afternoon of 9 September 2021, a team of police officers noticed that the LGV, then bearing number plates MM6963 (subject matter of the 4^th charge of Forgery of documents and 9^th charge of Handling stolen goods)  and having affixed to its windscreen a vehicle licence with registration mark VJ5222 (subject matter of the 5^th charge of Forgery of documents)  was parked illegally in Man Ming Lane, Yau Ma Tei. Hidden behind the MM6963 number plates were the number plates VJ5222 (subject matter of the 8^th charge of Handling stolen goods). Having laid in ambush for about an hour, the police intercepted the defendant around 1630 hours when he opened the driver’s side door of the LGV and prepared to get in. A male who was with the defendant was also intercepted.

10.  The LGV’s car key was found in the defendant’s right trouser pocket. Inside the LGV, the police found, among other things, the articles particularised in the 11^th charge, namely one pair of pliers, 11 pairs of gloves, one roll of double-sided adhesive tape, 2 pairs of number plates with registration marks CC6328 and TH220 respectively. Also found inside the LGV was a pair of number plates with registration mark WR5826. This pair of number plates is the subject matter of the 10^th charge of Handling stolen goods.

11.  CCTV footage of the area showed that at 1424 hours on 9 September 2021, the defendant drove the LGV and parked it outside 15 - 17 Man Ming Lane. Following that, the defendant alighted from the driver’s seat and left. He returned to the LGV at 1629 hours with another male. When the defendant opened the driver’s side door and prepared to get in, he and the male with him were intercepted by the police.

12.  A check of this vehicle’s chassis number revealed that it was the LGV which was stolen on 7 July 2021.

13.  When driving the LGV, the defendant did not have a valid driving licence and his use of it was not covered by third party insurance. This, along with the CCTV footage showing the defendant driving the stolen LGV, form the bases for the 3^rd charge of Handling stolen goods, the 6^th charge of Driving without a valid driving licence and the 7^th charge of Using a motor vehicle without third party insurance.

14.  Under caution, the defendant admitted to having committed the 1^st and 2^nd charges, saying that he had been made to do so by a man called “Wu Lei”, to whom he owed gambling debts.

15.  The defendant admits the recapitulation in the Summary of Facts that he did commit each and every offence he is charged with, and that in respect of the Handling charges, he did dishonestly receive the goods in question, knowing or believing them to be stolen goods.

Defendant’s background

16.  The defendant is 31 years old. He received his education up to Form 1 level. His mother has passed away. He seldom gets in touch with his 67-year-old father and the elder of his 2 older brothers. He is single. At the time of his arrest, he was residing at a staff accommodation provided by the company owned by one of his older brothers and was working in his brother’s company as a road paving worker, earning between HK$12,000 - 27,000 a month.

17.  He has 3 previous convictions, none of which are similar to any of the offences he pleaded guilty to in this court.

Mitigation

18.  Defence counsel said the defendant had seized the earliest opportunity to plead guilty to all the charges, for which he should be given a 1/3 discount in sentence.

19.  In view of the dissimilar nature of his previous convictions, the court was asked to place little to no weight on those convictions when considering the defendant’s sentence.

20.  Counsel submitted that the one-transaction rule applied to a large number of the offences, and urged the court to order that a substantial part of the individual sentences is to run concurrently, so as to achieve a fair and proportional overall sentence.

21.  Insofar as sentences for various offences are concerned, counsel conceded that there are no guidelines or tariffs for any of them.

22.  Counsel admitted that of all the charges, the 3^rd charge of Handling a stolen vehicle is the most serious one. He referred to two sentencing cases in the District Court. One is HKSAR v Li Ka Ho and Anor [2020] HKDC 119, where His Honour Judge Casewell said, “In respect of offences of this nature, starting points for sentence in my experience could range between 18 months to 4 years.” [1]

23.  The other one is HKSAR v Ng Man Lung and Anor [2018] HKDC 300, where the defendant crashed a stolen vehicle into a gate. His Honour Judge Douglas Yau said:

“68. The defendant was never interested in the stolen vehicle. He was not selling the vehicle for profit. His was a technical handling. The sentence imposed on this offence will be subsumed in the sentence for the criminal damage charge.

69. Nevertheless, I find that an appropriate starting point for this offence is 15 months’ imprisonment.”

24.  Counsel submitted that there is no evidence to show that the LGV had been used in the commission of the 1^st charge, but admitted that the LGV had been used in committing the 2^nd charge. The facts show that the defendant clearly had no intention to receive the stolen LGV for sale for a profit.

25.  Counsel further submitted that an appropriate starting point for the 3^rd charge of handling the LGV should be similar to that adopted in Ng Man Lung, or should be at the lower end of the range mentioned in Li Ka Ho.

26.  With regard to the 2 theft charges, counsel suggested a starting point of 12 months’ imprisonment for each charge, and that they be ordered to run concurrently.

27.  Counsel submitted that the 4^th to 10^th charges all arose out of either the disguise or use of the LGV, and that their sentences should run either wholly or substantially concurrently. He pointed out that the statutory maximum for driving without a valid driving licence is 3 months’ imprisonment for a first offender.

28.  Finally, counsel suggested a starting point of around 6 months for the going equipped for stealing offence.

29.  In his letter addressed to the court, the defendant claimed to be a first offender and expressed his remorse. He said that due to a substantial reduction in his income as a result of the pandemic, he suffered great financial difficulties. To help improve his financial situation, he committed these offences.

Sentencing considerations

30.  I would like to make it clear from the outset that as the defendant’s conviction record does not show him to be a persistent offender or a repeat offender with respect to any of the present offences, I will not hold his record against him in my consideration of the starting points for the offences to which he pleaded guilty before me.

Theft (1^st and 2^nd charges)

31.  The thefts which form the subject matter of these two charges were committed in more or less the same way - electronic components worth about HK$33,000 (1^st charge)  and computer components of about the same value (2^nd charge)  were stolen while they were left unattended in the loading area or parking space of an industrial building. Neither theft caused any alarm or injury to anyone. They caused only economic loss to the owners.

32.  Understandably, there are no sentencing guidelines or tariffs for this kind of offence. Having regard to the circumstances in which these offences were committed, the amounts of loss occasioned by these thefts, and the decision in HKSAR v Li Chun Keung and Anor DCCC 861/2015 referred to in counsel’s mitigation submissions, I adopt a starting point of 15 months’ imprisonment for each charge.

Handling the stolen LGV (3^rd charge)

33.  In R v Chan Wing Kwan and Anor CACC 121/1985, where one of the defendants (D3)  was found guilty of dishonestly receiving fur which had been stolen from the factory not long before her handling, the Court of Appeal remarked that “An examination of a number of other cases of handling stolen goods shows that the normal bracket of sentences runs between 2 and 4 years. Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of the burglary of the goods which were subsequently handled.” [2]

34.  In HKSAR v Lam Yui Yiu (林銳堯)  CACC 373/2006, the defendant dishonestly handled a stolen taxi, fitted it with false number plates and drove it for a period of less than 3 weeks. A starting point of 4 years was not considered manifestly excessive by the Court of Appeal.

35.  In HKSAR v Cheng Chun Ming CACC 356/2000, the defendant had driven and delivered a stolen private car to a used car dealer at the motor show and asked the dealer to display the car for sale on his behalf. He was convicted after trial. The starting point of 3 years was regarded as appropriate by the Court of Appeal.

36.  The purpose for which the defendant handled the LGV was very different from the ones in Lam Yui Yiu and Cheng Chun Ming. There is no evidence that he was seeking to make a profit by selling the LGV or by plying it for hire, or that he was merely using it for fun.

37.  It would appear, from the presence of the articles which form the subject matter of the Going equipped for stealing charge, that the vehicle would be used in connection with stealing - for the transportation of personnel and materiel for the commission of such offences and, as the facts for the 2^nd charge show, for the transportation of the stolen goods. This aggravates the seriousness of the handling of this vehicle.

38.  That the defendant was driving a stolen vehicle without a valid driving licence and third party insurance coverage, and that the true identity of the vehicle was being disguised with the use of false number plates were considered aggravating features in HKSAR v Kan Tak Man (簡德民)  CACC 122/2016. In that case, the defendant was charged with Theft of a taxi, Driving it without a valid driving licence, Using it without third party insurance, and Using documents on it with intent to deceive. The trial judge’s use of 3 years as the starting point for the Theft and his enhancement thereof by 6 months on account of those aggravating features were not disturbed on appeal.

39.  I would adopt a notional starting point of 2½ years for this Handling charge, and enhance it by 6 months for the aggravating features mentioned above. The starting point for the 3^rd charge is one of 3 years’ imprisonment.

Forgery of documents (4^th and 5^th charges)

40.  The maximum term for offences under s 111 (1)  of the Road Traffic Ordinance is 3 years’ imprisonment. Starting points ranging from 3 months[3] to 2 years[4] for such offences have been adopted and not been altered on appeal.

41.  I would adopt a starting point of 6 months for each charge.

Driving without a valid driving licence (6^th charge)

42.  The maximum term is 3 months’ imprisonment in the case of a first conviction.

43.  The defendant had held a learner’s driving licence which had expired some 10 years and 7 months before he committed this offence. At the material time, he had no valid driving licence.

44.  I would adopt a starting point of 3 months.

Using a motor vehicle without third party insurance (7^th charge)

45.  The maximum term is 12 months’ imprisonment.

46.  It has been said of this offence that its “seriousness lies in the possibility that victims in traffic accidents may be left without any compensation”[5].

47.  As there is no evidence that the defendant had been using the LGV for a substantial period of time, I would adopt a starting point of 3 months’ imprisonment.

Handling stolen number plates (8^th, 9^th and 10^th charges)

48.  I would adopt 3 months as starting point for each of these charges.

Going equipped for stealing (11^th charge)

49.  In HKSAR v Li Ho Yin [2013] HKLRD (Yrbk)  330, Yuen JA, on behalf of the Court of Appeal, said:

“8. There are no guidelines for the sentencing of defendants for the offence of going equipped for stealing, for which the maximum sentence is 3 years imprisonment. However, as with all offences, the court seeks to attain some degree of consistency in sentencing subject to the individual facts of each case, including the circumstances in which the defendant was apprehended, the nature of the equipment carried, the nature of the defendant, his record (if any), the commission of other offences at the same time as the subject offence, and the principle of totality.”

50.  I would like to quote what the court in Li Ho Yin said when dealing with two of the cases referred to by the appellant in that case. The court said:

“14. Chan Wing Kai [6] was a case where the 1^st defendant was driving a taxi containing 3 screwdrivers and a crowbar. He was sentenced to 12 months imprisonment for the ‘going equipped’ charge. The defendant was also guilty of driving dangerously when trying to elude police, and the judge adopted a starting point of a total of 3 years imprisonment. He had no previous convictions for burglary, and if only for that reason, that case could be distinguished from the present case.

…

16. Ng Wai Lun [7] was a case where the defendant had a crowbar when apprehended while still ‘target-searching’. He was sentenced adopting a starting point of 12 months for a ‘going equipped’ charge. He confessed to a burglary committed 2 weeks previously, and he was sentenced to a total term of imprisonment using 3 years 4½ months as a starting point. However his case is also different as he could not be regarded as a professional burglar.”

51.  In our case, the equipment was found in the LGV. The defendant cannot be said to be a professional thief or burglar, although he admitted in the present proceedings to having committed 2 thefts in the 10 days prior to discovery of the equipment by the police on 9 September 2021.

52.  Given the circumstances of our case and those of the defendant’s, I think a starting point of 12 months is appropriate.

Reduction of sentence

53.  What the defendant said in his mitigating letter is of little help in his mitigation. The only mitigating factor of any significance is the defendant’s guilty pleas, for which he will be given a 1/3 discount in sentence for each offence. The starting points and the sentences after discount are as follows:

Charge	Starting point (in months)	Sentence after discount (in months)
1st	15	10
2nd	15	10
3rd	36	24
4th	6	4
5th	6	4
6th	3	2
7th	3	2
8th	3	2
9th	3	2
10th	3	2
11th	12	8

Totality

54.  I do not agree with defence counsel’s submission that the one-transaction rule applies to all the charges, although this rule may hold true with respect to offences which came to light on 9 September 2021.

55.  Given the circumstances of this case, I consider a total sentence of 3 years to be a fair and balanced one. To achieve that total sentence, I order that:

(i)  Sentence for the 2^nd charge is to be served consecutively to the sentence for the 1^st charge;

(ii)  Sentence for each of the 3^rd to 11^th charges is to be served concurrently with each other, resulting in a combined total of 24 months. 16 months of this combined total are to be served consecutively to the sentences for the 1^st and 2^nd charges.

Disqualification

56.  I order that the defendant be disqualified from obtaining or holding a driving licence for 3 years under section 4(2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance in respect of the 7^th charge.

57.  I am aware that this disqualification period, which is the maximum allowed by section 4(2)(a), is the same as the total term of imprisonment imposed for all the charges. The result is that the 3-year disqualification would be deprived of its effect.

58.  In Secretary for Justice v Hung Kwok Leung [2010] 4 HKLRD 365, the Court of Appeal held, inter alia, that the main purpose of disqualification from driving was “forward-looking and preventive rather than backward-looking and punitive” and was designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads; that the period of disqualification must run concurrently with the term of imprisonment and should have actual effect by being longer than the prison sentence.

59.  In those circumstances, I order that the defendant be also disqualified under section 69 (1)(a)  of the Road Traffic Ordinance for 4 years in respect of the 6^th charge.

60.  The two terms of disqualification are to run concurrently with each other.