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DCCC 229/2016
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO. 229 OF 2016
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| Present: |
Mr Frederick Chung, SPP, of the Department of Justice, for HKSAR
Mr Billy Lau of J. Chan, Yip, So & Partners assigned by the Director of Legal Aid for the defendant |
| Offences: |
(1) Theft (盜竊罪)
(2) Driving without a valid driving licence (駕駛時無有效駕駛執照)
(3) Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車)
(4) Using documents on a vehicle with intent to deceive
(意圖欺詐而在一部車輛上使用文件) |
REASONS FOR SENTENCE
1. Kan Tak Man you have pleaded guilty to one charge of theft of a motor vehicle, contrary to section 9 of the Theft Ordinance[1]; one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[2]; one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[3]; and one charge of using documents on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance.
2. Full details of the offences are set out in the facts admitted by you today. In summary in the afternoon of 26 January this year the police intercepted you while driving private car bearing number plates NU7855. Police enquiries revealed the car had been stolen on 2 January this year and the number plates changed. The correct registration mark was ST6140. You were also driving without a valid driving licence and without third party insurance.
3. In a video recorded interview you admitted that you stole the car by using a metal ruler and screwdriver to open the driver’s door and remove the ignition. You then installed a new ignition and changed the vehicle licence and number plates to NU7855.
Mitigation
4. In passing sentence I have taken into account everything said on your behalf by Mr Lau, including that you only took the car for a joyride and not for resale at a profit.[4]
Theft of vehicle
5. There are no guidelines for offences of theft of 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.”
6. In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years imprisonment for the handling of one stolen vehicle, described as casual and opportunistic. Mr Lau has also referred me to HKSAR v Li Cheung Yin & others[6] where the court also held a 3 year starting point was appropriate for theft of a vehicle[7].
7. The same starting point has been held appropriate for the theft of goods vehicles[8]. Higher starting points have been held appropriate where the theft was organised, planned and committed in concert with others or involved those in the motor trade[9].
8. I disagree with the mitigation this was committed foolishly out of a moment of greed and that you intended to return the car to the owner after you had saved enough money to buy your own car[10]. Whilst not sophisticated you clearly planned the theft taking with you tools to enable you to break into the car and remove the ignition key. Although you are not a motor trader you clearly used your knowledge gained from working as a mechanic to enable you to steal the vehicle.
9. The changing of the number plates and the vehicle licence to avoid detection in my view also shows a degree of planning and is an aggravating feature of the theft.
10. The traffic record reveals that you have never passed a driving test having only held a provisional driving licence in 2003. The fact you are not permitted to drive a vehicle is in my view also an aggravating feature of theft. Similarly having no third party insurance thereby placing all other road users at risk is also an aggravating feature of the theft.
11. Taking into account that the car was not a luxury vehicle; was manufactured in 1999 and purchased by the owner for $35,000 in December last year; you acted alone; and the manner of the theft together with the aggravating features of changing the number plates and vehicle licence and having no valid driving licence or third party insurance, I am satisfied the proper starting point after trial is 3 years and 6 months imprisonment.
12. A starting point may be increased where the defendant is a persistent offender. You have multiple convictions including ten offences of theft. Your last conviction was in May 2012 when you were sentenced to a total of 2 years and 3 months imprisonment for theft of two vehicles, driving without a licence and driving without third party insurance. You were released from that sentence on 3 October 2015. Two months later you committed the present offences. I am satisfied by reason of your persistent offending the starting point is to be increased by 6 months imprisonment to 4 years imprisonment.
13. Giving you full credit for your plea of guilty you are convicted and sentenced to 2 years and 8 months imprisonment.
Driving without a valid driving licence; using a vehicle without third party insurance and using a document with intent to deceive
14. These are serious offences of which you also have multiple convictions. You have been convicted on three previous occasions of driving without a valid driving licence; eight previous occasions of using a vehicle without third party insurance and two previous occasions for offences contrary to section 111 of the Road Traffic Ordinance.
15. I am satisfied a starting point of 3 months imprisonment for driving without a valid driving licence is appropriate; 9 months imprisonment for using a vehicle without third party insurance; and 12 months imprisonment for using a document with intent to deceive.
16. Giving you full credit for your pleas of guilty you are convicted and sentenced to 2 months, 6 months and 8 months imprisonment respectively. Having taken these matters into account in determining the sentence for theft of the vehicle I order all sentences to be served concurrently. You will therefore serve a total sentence of 2 years and 8 months imprisonment.
Disqualification
17. 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.
18. This being your ninth conviction for using a vehicle without third party insurance I am satisfied that a period of 2 years and 6 months disqualification is appropriate. You are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years and 6 months from today.
19. You are warned that after serving your prison sentence you will still be disqualified from driving. Driving whilst disqualified is a serious offence which attracts immediate imprisonment.
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(D. J. DUFTON)
District Judge
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[1] Cap 210.
[2] Cap 374.
[3] Cap 272.
[4] §§ 1 & 2(ii) of Mr Lau’s written submission.
[5] CACC 356/2000.
[6] CACC 313/2011.
[7] The judgment is in Chinese only. §2 of Mr Lau’s written submission summarises the judgment together with an agreed translation of part of the judgment.
[8] See Attorney General v Ng Kwok Hung CAAR 7/1996.
[9] See for example HKSAR v Lai Lit Man CACC 578/2002; HKSAR v Li Kwok Ho CACC 253/2006; HKSAR v Chiu Kwok Wai Caesar [2008] 1 HKLRD 284 and HKSAR v Wong Kam Tat [2002] 2 HKC 677.
[10] §§1 & 3 of Mr Lau’s written submission.
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