HKSAR v. SO WAI MAN

DCCC 110/2017

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 110 OF 2017

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REASONS FOR SENTENCE

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1.  In this case, the defendant, So Wai Man, stole a car, drove it despite that he does not have a driver’s licence and third party insurance.  He also tried to run away when he was intercepted by the police.  As a result, he faced the following four charges:-

(1) Theft, contrary to section 9 of the Theft Ordinance, Cap 210;

(2) Driving without a Valid Driving Licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374;

(3) Using a motor vehicle without Third Party Insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272; and,

(4) Resisting a Police officer in the Execution of his Duty, contrary to section 63 of the Police Force Ordinance, Cap 232.

2.  He was convicted on his plea and admission of facts of all four charges.

Facts of the case (Charges 1 to 3)

3.  On 25 August 2016, the owner of the vehicle FV7772 left it at a Yuen Long garage for maintenance.  It was then left in the garage awaiting collection by its owner.  Its ignition key was left inside the car.  At about 10 pm on 26 August 2016, an unknown Chinese male stole it from the garage.

4.  At about 2.13 am on 11 October 2016, the defendant was seen driving the stolen vehicle bearing registration plate LK3348 in Tai Po.  After he alighted, a police officer who found the situation suspicious, tried to intercept him.  Further investigation revealed and confirmed that the vehicle in question was in fact the stolen vehicle bearing registration plate FV7772.

Charge 4

5.  When the defendant was intercepted, he became emotional and attempted to prevent the police officers from getting close to the stolen vehicle.  During the course of inquiries, the defendant tried to flee.  Having run for a distance of about 5 metres, he reached Lam Tsuen River and jumped into it.  Eventually he was apprehended.

Cautioned Statement

6.  Under caution, the defendant contended he found the stolen vehicle unattended with its ignition key inside at Nam Hang about two months ago and decided to take it for his own use.  The vehicle had already the registration plate LK3348 affixed.  He was unaware that they were not the original registration plates for the vehicle.  He had no driving licence nor did he have any third party insurance for the stolen vehicle.  Despite that he parked the vehicle near his home and drove it occasionally for his own use. 

7.  DNA evidence confirmed that the defendant, amongst two other unknown persons, had been in the stolen vehicle before.

Discussions

8.  In the absence of evidence to the contrary, I have to accept the defendant’s version that somehow the stolen vehicle, with different registration plates affixed, had been left unattended in the street. The defendant had used the opportunity to steal it for his own use.  There is no evidence that the theft was carried out with careful planning or it was used to commit other crimes.

9.  Nevertheless, theft of a vehicle is considered a very serious offence.  As had been pointed in paragraph 10 of the judgment for HKSAR v Yu Chi Chiu, CACC 198/2015:-

“(i) Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

(ii) A vehicle is also private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (eg, phones, name cards, different types of documents/letters and all types of memory cards or access cards).

(iii) A vehicle is often parked in a public place, making it prone to be a target of theft.

(iv) To the owner of a private vehicle, the loss of his vehicle would cause him great inconvenience as he will lose his means of transportation, and when a vehicle is used for commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money which, in turn, will cause additional economic loss or even affect his livelihood.”

10.  For that particular case, the Court of Appeal took the view that the starting point of 3 years’ imprisonment was not manifestly excessive.  In my view, the reasons identified by the Court of Appeal for treating theft of vehicles seriously are still valid in the present case.  I note that the defendant had admitted to have the use of the stolen vehicle for about two months:- meaning that its rightful owner had been deprived of the use of the same and had been put to a considerable inconvenience.

11.  I also take into consideration of the fact that despite the defendant had no permission to drive a vehicle on the road, he had been using the stolen vehicle “occasionally”, meaning he had been putting other users of the road at risk by driving without a licence and a valid third party insurance.  The risk is also magnified by the fact that should an accident occur, the parties aggrieved would have no recourse to any monetary compensation in the absence of a third party insurance.

12.  In the circumstances, I would adopt 3 years’ imprisonment as the starting point.  For the reasons already stated above, I would also use 3 months’ imprisonment as the starting point for Charges 2 and 3, both to run concurrently.  For Charge 3, the defendant is also disqualified from driving any vehicles for 2 years.

13.  As to the resisting charge, I accept that the defendant’s reaction at the time was a desperate attempt to get away from the mess he realised he was in.  It was visceral and unplanned.  However, the defendant’s behaviour had shown a blatant disregard for the law and had put the safety of law enforcement officers at risk during the pursuit. 

14.  The defendant had three convictions relating to resisting police officers.  In 1996, he was convicted of one count of assaulting a police officer for which he was sentenced to 1 month’s imprisonment.  In 2006, he was convicted of two counts of resisting a police officer.  For each offence, he was sentenced to 4 months’ imprisonment. 

15.  Obviously, he has a cynical disregard for the authority of the law enforcement agents.  More importantly, the sentences ordered in the past had no deterrent effect on him.  For the present case, I will adopt a starting point of 3 months, reduced to 2 months by reason of his guilty plea.

16.  Having taken into consideration of the totality principle, I would order that the sentence ordered for Charges 1 to 3 to run concurrently but Charge 4 is to run consecutively.

Other considerations

17.  I have considered the mitigations put forwarded by the defendant himself.  At 41 at the time of the offence, he is neither young nor a first offender.  On 17 previous occasions he had been convicted of a number of different offences most of which related to violence.  In 1996, he was convicted of one count of “Taking conveyance Without Authority” for which he was sentenced to a term of imprisonment.  The court is also told that, on last Friday, he was convicted of one count of [Possession of Arms without a Licence] for which he was sentenced to a term of 6 months.  So from his record and his age, there is very little by way of mitigation, nor could he persuade this court to be exceptionally lenient. 

18.  The court is also told by the defendant himself that he is a worker in the recycle business.  He lives with his son who has in turn two younger children.  He helped to pay for their utilities.  All these personal backgrounds, in my view, are not valid mitigating factors.  The only valid mitigation factor is the fact that he pleaded guilty. 

19.  The defendant for Charges 1 to 4 is to serve a term of imprisonment of 39 months.  It is now reduced to 26 months to reflect his plea of guilty.  Having considered the circumstances as a whole, I do not see any other factors which would justify any further act of leniency on my part.

20.  To recap, the defendant is to serve a total of 26 months’ imprisonment for the four offences.  For Charge 3, he is also to be disqualified from driving all classes of vehicles for 2 years.  They are to be consecutive to whatever sentence you are serving.