HKSAR v. LEE CHUN KIT

DCCC820/2011

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 820 OF 2011

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Reasons for Sentence

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1.  I do not intend to repeat the facts of the case as I gave very full details in my verdict.

2.  After trial, I acquitted the 2nd defendant of Charges 11 to 14.

3.  After trial, I convicted the 2nd defendant of Charges 15 to 20:

(1) Charges 15, 16 and 17 involve handling stolen goods. The three offences involve two number plates, 4 tyres and a vehicle respectively;

(2) Charge 18 involves theft of metal bars from a construction site, now valued at $4,000;

(3) Charge 19 is a dangerous driving offence;

(4) Charge 20 is an offence of perverting the course of justice by making a false police report.

4.  All these offences - all six charges - took place on 27 May 2010, 1½ years ago.  The defendant was then 19 years old and now just 21.

5.  The defendant has until this trial had a clear record and a clear traffic record.  The defendant took his driving licence in March 2009 and passed.

6.  The four tyres of Charge 15 were stolen off a vehicle on 24 April 2010.

7.  Two of the four were found in the back of the getaway vehicle I found the 2nd defendant to be driving.  These two, amongst other tyres, were under lock and key in the back of the vehicle.  The key to the padlock was found in the 2nd defendant’s home.

8.  The other two tyres were found in the trunk of another stolen vehicle some time later and, likewise, the key to that vehicle was found in the 2nd defendant’s home.

9.  Charge 16, the two number plates of Charge 16 were stolen off its vehicle in February 2010.  They were then put on the stolen vehicle of Charge 17.  They were found on the getaway vehicle driven by the 2nd defendant.

10.  Charge 17, the vehicle of that charge was stolen on 20 March. This is the vehicle I find the defendant was handling with the number plates attached to it of Charge 16, and inside the vehicle there were some tyres of Charge 15. I found him handling all these items.

11.  There was in the defendant’s mobile phone photographs of the vehicle of Charge 17 taken three days after it was stolen, and already that vehicle had been painted with its Chinese characters and telephone numbers painted over to avoid detection.  Clearly it was painted and had different number plates put on it to disguise the vehicle.

12.  It was the theft of the metal bars of Charge 18 which led to the chase of the defendant.  The defendant and the 1st defendant were caught red-handed stealing the metal bars. When the police tried to apprehend the defendants, they jumped back into the getaway vehicle of Charge 17 and drove away.

13.  Charge 19 is the dangerous driving that resulted from this vehicle chase.

14.  Charge 20 is a police report the defendant made several hours after he abandoned this getaway vehicle.  He made a false report to the police that he had lost his mobile phone which, in reality, he had inadvertently left behind in the getaway vehicle.  He made this report to distance himself from the phone and, therefore, the crimes.

15.  Much of the prosecution’s evidence was not in dispute, nor did the defendant elect to give evidence.

16.  The defence challenged the prosecution’s ability to prove all the elements of each offence beyond reasonable doubt.

17.  The defence succeeded with four charges but failed with six - Charges 15 to 20 - and I convicted the defendant of these after trial.

18.  I turn to my reasons for sentence.

19.  The defendant at the time, as I have said, was only 19 and he had a clear record. For that reason, I called for a background report to see if I could get as much as detail as possible to assist me in sentence.

20.  What transpires is the defendant’s parents are hardworking and decent people who have only one son - this defendant.

21.  However, due to obviously working hard to better their lives, they have not put enough time and effort into the defendant.  The probation officer describes their relationship as rather detached, maybe because they have not spent a lot of time together.

22.  It is clear from the report the defendant did not do well at school and left school in 2007.  Really, he has remained idle since, except for helping his father deliver documents and samples.

23.  After his arrest for these offences, the father put some time and effort into guiding the defendant and, ultimately, he took some courses to try and get some qualifications, and until this trial, he had obtained his first proper job.

24.  When the probation officer asked him about this offence, the defendant maintained his silence.  He did not disclose any details of the offence nor show any remorse to the probation officer.  All he said was he did not want to recall the incident which was unpleasant to him or his family.

25.  For offences of this nature, either charge, there are no tariffs.  For handling stolen goods, there are factors in considering sentence and I have referred myself to the English authority of R v Webbe [2002] 1 Cr.App.R (S) 82.  It sets out nine aggravating factors to consider relevant to sentence.

26.  What I find relevant from that authority are two factors:

(1) one, the value of the goods, in particular the vehicle of Charge 17, is not insignificant;

(2) secondly, the sophistication in relation to handling.

27.  In this case, stolen plates were used on a stolen vehicle driven to steal metal bars for, I am sure, resale.  There were tyres of Charge 15, which I am sure were stolen for resale.   So in other words, items were stolen in order to commit offences and I found the defendant handled these items after they had been stolen.

28.  I do take into account also the value of the metal bars.  I have been told they are worth $4,000.

29.  But for an informant calling the police and interrupting the defendants, the value of the items they stole would have been higher.  I am sure the defendants were interrupted by the police before they had finished.

30.  Those are the factors I will take into account when looking at the handling stolen goods charges as well as the theft charge of Charge 18.

31.  For Charge 19, dangerous driving, for that offence there is a maximum sentence of 3 years, unless aggravating factors exist, which do not exist here.  Those aggravating factors would be, for example, driving whilst under the influence of drugs or alcohol.

32.  In the facts of this case, the gravamen of this dangerous driving offence is as follows.

33.  I am sure the defendant drove dangerously to escape the police.  When he drove away, he failed to heed the police warning to stop.  He then rammed a police vehicle to get away in order to move it out of the way.  Whilst being chased by a police vehicle, he ran two red lights and continued to fail to heed police warning to stop.

34.  When the vehicles arrived at the Tolo Highway, Kowloon-bound, the evidence is that the defendant weaved in and out of the lanes dangerously.  I take note that it was early hours of the morning, but that Tolo Highway is busy all the time.

35.  When the defendant was driving along a straight road of the highway in the Shatin area, he changed lanes, knocked a motorbike cyclist off his bike in the middle of the highway.

36.  I cannot go so far as to say it was deliberate, but there is no way he would not have seen that motorcyclist if he had looked in his mirrors, because it was a very straight road.

37.  Moreover, he was clearly speeding very fast from point A to B.  The police estimate his journey was about 10 minutes during this chase.  When the police later conducted a test drive of the same distance driving within the legal limit, the journey took 24 minutes.

38.  The potential for damage on this morning was on a huge scale.  The defendant is incredibly lucky not to have killed anybody.

39.  That motorcyclist falling off his bike in the middle of a highway and walking away uninjured is unbelievably lucky.  It caused the police to immediately abandon their chase of the defendant and stop vehicles hitting this motorcyclist.

40.  However, due to other police vigilance, the defendant’s vehicle was found nearby very soon after.

41.  All those driving manners I have just repeated are relevant factors in deciding culpability.  It is one of the worst dangerous driving cases I have come across.

42.  I have referred myself to several authorities to assist me with sentence.  For example, The Secretary of Justice v Ko Wai Kit, CAAR 12/2001; Secretary of Justice v Lau Sin Ting, CAAR 3/2010 - that authority is a dangerous driving causing death, but it discusses dangerous driving and relevant factors - and lastly, I have also consider Secretary of Justice v Poon Wing Kay [2007] 1 HKLRD 660, and I quote Ma CJ, as he then was, at paragraph 10:

“While a list can be drawn up of aggravating and mitigating factors, a sentencing court must however look at the overall circumstances and the overall culpability of the offender. In assessing the overall seriousness of a crime, culpability is often the dominant factor.”

43.  Paragraph 14,

“It is not a case of counting the number of aggravating or mitigating factors and then arriving by mechanical means at the relevant sentence. Sentencing is not quite that exact an exercise and courts must be sufficiently nimble to take into account the overall picture in order to arrive at an appropriate sentence.”

44.  I have looked at all the circumstances of each of these offences and how they are linked.

45.  After considering the seriousness of the facts of this case, the defendant’s background and mitigation, his previous clear record, the value of the items that he handled and stole, and under what circumstances some of these items were used in the furtherance of crime - Defendant, please stand up:

(1) I take for Charge 15 a starting point of 12 months’ imprisonment (1 year);

(2) Charge 16, I take a starting point of 1 year and 6 months;

(3) Charge 17, I take a starting point of 2 years;

(4) Charge 18, I take a starting point of 18 months (1 year and 6 months);

(5) Charge 19, dangerous driving, I take a starting point of 2 years and 6 months;

(6) for Charge 20, I take a starting point of 8 months.

46.  These offences were and you were convicted of these offences after trial.  I see no further reason for discount.

47.  I will take into account the totality principle and the date of these offences and the link between these offences, and I order all six charges to be served concurrently.

48.  That is a total of 2 years and 6 months.