HKSAR v. MUHAMMAD WAQAS

DCCC 326/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 326 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 10 charges:-

(1) Charge 1, theft of vehicle, contrary to section 9 of Theft Ordinance, Cap 210;

(2) Charge 2, using markings on a vehicle with intent to deceive, contrary to section 111(1)(a) of Road Traffic Ordinance, Cap 374;

(3) Charge 3, careless driving, contrary to section 38(1) of Road Traffic Ordinance, Cap 374;

(4) Charge 4, driving without a valid driving licence, contrary to section 42(1) (and?) (4) of the Road Traffic Ordinance, Cap 374;

(5) Charge 5, using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272;

(6) Charge 6, failing to stop after incident, contrary to section 56(1)(b) and (5) of Road Traffic Ordinance, Cap 374;

(7) Charge 7, failing to report an incident, contrary to section 56(2A) and (6) of Road Traffic Ordinance, Cap 374;

(8) Charge 8, making false report, contrary to section 64(a), Police Force Ordinance, Cap 232;

(9) Charge 9, escape from lawful custody, contrary to common law and punishable under section 101I of Criminal Procedure Ordinance, Cap 221;

(10) Charge 10, possession of dangerous drugs, contrary to section 8(1)(a) and (2) of Dangerous Drugs Ordinance, Cap 134.

Summary of facts

Charge 1

2.  On 19 December 2016 the defendant stole PW1’s private car, KM8879, which was parked in a street in Tuen Mun, with the car key inserted in the ignition without locking the door.  PW1’s friends posted the incident on Facebook.

Careless driving

3.  At the material time, PW2 was driving along Tuen Mun and saw the stolen vehicle being driven by the defendant.  As PW2 had seen the Facebook message before, he noticed that beneath the number plate of “GT426” there were other characters, that was “KM”. 

4.  When approaching a traffic light, PW4 stopped his vehicle in front of the red light.  PW2 stopped behind him.  The defendant suddenly cut into their lane.  The left-front part of the stolen vehicle collided with the right-back part of PW4’s vehicle and also PW2’s right-front bumper.

5.  PW2 and his passenger, PW3, went up to the defendant, but could not open the car door.  PW3 used his elbow to break the car window of the driver’s seat.  The defendant kicked open the car door and escaped after some struggle with PW2 and 3.

6.  The police arrived and found a card-holder containing different cards, including the defendant’s ID card, mobile phone and other personal items which did not belong to PW1.

7.  Transport Department confirmed that the defendant was not a holder of any driving licence, while the insurance company also confirmed that the defendant was not covered by third party insurance.

False police report, Charge 8

8.  On the same day at about 8.16 pm, the defendant called “999” and reported that he had been robbed by three men and they hit him with a rod.  He ran away, leaving his jacket and mobile phone behind.  During the enquiry, the police found out that the items in the stolen vehicle belonged to the defendant.  He was arrested for an offence of misleading a police officer.

Taking conveyancing without authorities and driving without third party insurance

9.  Under caution, the defendant said that he did not have a driving licence.  He took a minibus to Tsuen Wan and did not drive any car.

The escape

10.  On 4 January 2017, PW3 identified that the defendant being the driver of the stolen vehicle.  During the remand in the temporary cell, the defendant was allowed to make a phone call at his request.  He was taken to the formal male cell, when the police opened the gate to the cell, the defendant, who was not handcuffed at that time, ran away. 

11.  He jumped over the front desk, pushed the computer monitor down onto the floor, ran downstairs to the lobby, ran across the road into the West Rail Station, then to Tuen Mun Town Park.  Two policemen chased after him.  He was found hiding at the bushes on the slope.  He was arrested for escaping from lawful custody.

Possession of dangerous drugs

12.  During a search on the defendant on the same day, it was found that his underpants were lowered to below his knees.  Dangerous drugs were found in his underpants.  Under caution, he said that he picked up the bags of dangerous drugs from the temporary cell inside the police station and he hid it in his underpants.

Previous conviction

13.  The defendant had four previous:  two convictions of theft in 2009; two convictions of robbery in 2012.  He received a total sentence of 6 years.

Mitigation

14.  He is now 23, came from Pakistan in 1993.  In September 2016 he married and his wife is now living in Pakistan.  Before the arrest, he lived with his family in Hong Kong.  He worked as a delivery worker with a monthly earnings of $13,000.

15.  As to Charge 1, he came across PW1’s vehicle in the street and it was out of fun that he committed the offence.  He said he would not touch any vehicle in the future.

16.  The accident occurred because he was nervous at the material time when he drove PW1’s car.  He lied to the police because he took some bad advice from his friends to make a false report to the police. 

17.  He knows now he is wrong, but the offences were not pre-meditated or planned.  He is now remorseful.  He has 3,000 to 4,000 dollars at home but could not get in touch with any of his family members, as he wished to compensate the three vehicle-owners.

Sentence

Theft of vehicle

18.  PW1 parked his car in the street without locking the car door and leaving the car key in the ignition.  The defendant then committed the careless driving offences, causing damage to PW1’s car.  The stolen vehicle was worth about $80,000.

19.  There are no guidelines for offences of theft of vehicle.  The court takes a serious view that a deterrent sentence is required.  In HKSAR v Cheng Chung Ming, CACC 356/2000, the court said this: -

“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.”

20.  The court also upheld a starting point of 3 years’ imprisonment for any offence of handling of a motor vehicle.

21.  The defendant was an opportunistic handler.

22.  In HKSAR v Li Cheung Yin & Ors, CACC 313/2011, where the court held a 3-year starting point was appropriate for theft of a vehicle.

23.  I accept that the defendant was an opportunistic thief.  He took the car when the door was unlocked and the car key was in the ignition.  However, the car was damaged when the defendant cut into PW2 and 4’s lane carelessly.

24.  The cost of repair of KM8879 was $8,000.  He was not in a position to compensate PW1.

25.  Taking into account that the stolen vehicle was worth about $80,000, the damage to the vehicle was not serious (at least PW1 got it repaired), the defendant acted alone, I am satisfied that the starting point after trial is 3 years.  Giving the defendant one-third discount, it comes down to 2 years.

Charge 2 to 7

26.  The defendant used another number plate, GT426, to cover the original stolen vehicle.  The whole purpose was to prevent the police or PW1 to track down the whereabouts of KM8879.

27.  On the other hand, the defendant did not have a driving licence and driving without third party insurance placed all the road users at risk.  When there are damages or personal injuries occurring in a car accident, the road users are not covered by insurance.  This is exactly what happened here, when the defendant is not in a position to compensate the victims.

28.  His driving manner was bad.  PW2 stopped his vehicle behind PW4.  Both vehicles were stationary in front of the traffic light.  There was not enough space for the defendant to move in.  It was not only bad driving manner; it was also bad judgment as well.  He ran away from the scene.  This was an irresponsible attitude.  When other drivers got off their cars and went up to him, all he did was to avoid them.

29.  The defence refer me to a case of HKSAR v Ejiobu Lazarus, HCMA 334/2016.  At paragraph 12 of the judgment, another case, HKSAR v Ngan Tin Hung, HCMA 647/2011, was also quoted in relation to driving without driving licence and without third party insurance.

30.  Each case depended on its own facts.  There is no tariff for this type of offences. 

31.  Having said that, I still have regard to maximum sentence on each charge. 

32.  Charge 2 is a serious offence, carries a heavy maximum sentence of 3 years and a fine of $10,000.  For the reasons stated above, I adopt a starting point of 12 months, reduced to 8 months for his guilty plea.

33.  Charge 3 is the careless driving offence.  Taking into account that it was a stolen vehicle, further aggravated by pre-meditation of using a false number plate without valid driving licence and third party insurance, bad driving manner and judgment, I am satisfied that a starting point of 3 months is appropriate.  I reduce to 2 months because of his guilty plea.

34.  Charge 4, maximum sentence for a first offender for driving without a valid driving licence is 3 months and $5,000.  I adopt a starting point of 4½ weeks, reduced to 3 weeks.

35.  Charge 5 is the offence of without third party insurance.  Maximum sentence is $10,000 and 12 months, with a disqualification order between 12 to 36 months unless there is a special reason for not making such an order.  The defence do not pursue on the point of special reason.  I therefore order 24 months of disqualification for not driving any type of vehicle from the date of conviction.  I also consider that 4½ months is appropriate in the present case; discounts to 3 months.

36.  Charge 6, failing to stop, is a serious offence.  A maximum sentence is $10,000 and 12 months.  I take 4½ months as the starting point.  Granting one-third discount, it comes down to 3 months.

37.  Charge 7 is an offence for failing to report, a maximum sentence of $15,000 and 6 months.  I consider that 3 months is appropriate in the present case.  I also reduce the sentence to 2 months to reflect his guilty plea. 

38.  Taking into account of the totality principle, I order all the sentences in Charge 2 to 7 be run concurrently.  That is a sentence of 8 months.  I further order that 4 months be run consecutively to Charge 1.  For Charge 1 to 7, the total sentence is now 2 years 4 months.

Charge 8, making false report

39.  Clearly, after the car accident, the defendant left all his belongings in the car, including his ID card, his jacket and his mobile phone.  The defendant could not get back his belongings and he lied to the police that he was robbed by three men.

40.  But what he did not realize was that the police was investigating into the car accident offence, when one of the drivers disappeared.  The car was a stolen vehicle.  He drove the car without a driving licence, without third party insurance, used another car’s number plate to cover up the original number plate, and hit the other two cars when he changed lane.  He further lied to the police to cover his misdeeds. 

41.  One cannot dispute that this is a bad case of misleading a police officer.  He wasted the police’s manpower.

42.  Section 64(a) of the Police Force Ordinance, Cap 232, carries a maximum sentence of 6 months and a fine of $1,000.

43.  It is clear that a fine is inappropriate in the present case.  Anyone commits a serious offence such as theft of vehicle then followed by a series of crime cannot expect a light sentence.  I consider a proper sentence should be 3 months, reduced to 2 months, to reflect his guilty plea.  I order 1 month be run consecutively to Charge 1.  The total sentence is now 2 years 5 months.

44.  Charge 9 and 10 were incidents that took place on 4 January 2017. 

Charge 9, escape from lawful custody

45.  The defendant made excuses to request a phone call so that he had an opportunity to be taken out from the temporary cell.  At that time he was not handcuffed.  Looking at the photos provided by the prosecution, it was just a bare cell with a bench for sitting.  This was a calculated move by the defendant.  He took the opportunity to run away from the police station.

46.  By reference to the photos, it was quite a distance from the police station to where he was rearrested in the Tuen Mun Park.  According to Sentencing in Hong Kong (2015), seventh edition, page 638, it states  that the sentence tends to be in the range of 3 to 12 months.

47.  Taking into account that it was a calculated move by the defendant and he was soon rearrested not too far away from the police station, I consider a starting point of 6 months is appropriate to reflect the gravity of the offence.  One-third discount, the sentence is reduced to 4 months.

10th charge

48.  This is a charge of simple possession - 0.89 grammes of a powder containing cocaine - and there is authority to say that usual sentence is in the range of 12 to 18 months.  In view of the quantity of the drug offence, I take 12 months as the starting point, reduce to 8 months.

49.  As to Charge 9 and 10, I order both sentences to run concurrently, out of which 4 months to run consecutively to Charge 1.

50.  The final sentence is 2 years 9 months.

51.  Conclusion:-

(1) Charge 1: 2 years;

(2) Charge 2: 8 months;

(3) Charge 3: 2 months;

(4) Charge 4: 3 weeks;

(5) Charge 5: 3 months;

24 months’ disqualification order for driving any vehicle from the date of conviction;

(6) Charge 6: 3 months;

(7) Charge 7: 2 months;

Charge 2 to 7: Sentences to run concurrently;

4 months to run consecutively to Charge 1;

(8) Charge 8: 2 months;

1 month to run consecutively to Charge 1;

(9) Charge 9: 4 months;

(10) Charge 10: 8 months;

Both charges to run concurrently;

4 months to run consecutively to Charge 1.

52.  Total sentence:  2 years 9 months.