HKSAR v. YU SING MONG

DCCC 302/2022

[2023] HKDC 627

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 302 OF 2022

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REASONS FOR SENTENCE

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The Pleas

1.  The defendant pleaded guilty to 4 charges :-

(a)  Theft of a motor cycle on 11 April, 2021

(b)  Forgery of a document by using a false number plate on the stolen motorcycle on 25 August, 2021

(c)  Driving without a valid licence on 25 August,2021

(d)  Driving the stolen motor cycle (from charge 1)  without a third party insurance on 25 August,2021

Summary of facts

2.  At 10:20 am, on 25^th August,2021, PC 8159 and other officers arrived at Sau Fai House, Sau Mau Ping Estate, (the “Offence Location”).  PC 8159 spotted the Defendant and another person were standing in between two motorcycles and they were tampering with one of the parked motorcycle.

3.  PC 8159 stopped them.  The Defendant took a black cross-body bag and a bottle of water from the left handle of the motorcycle TZ 4511 (the “Motorcycle”). 

4.  Upon enquiries, the Defendant said that the Motorcycle did not belong to him and he did not know the owner.  He only hung his belongings there. 

5.  PC 8159 contacted the registered owner of TZ4511 who confirmed that TZ4511 was currently parked in Tuen Mun (Charge 2).

6.  The Defendant then claimed that he parked his own vehicle – NY3635 in a multi-storey car park nearby. 

7.  PC 8159 escorted the Defendant to NY 3635. 

8.  A number plate MS 673 and vehicle license belonging to a motorcycle with registration number MS673 were found inside the car. 

9.  Further investigation revealed that the registered owner (PW1)  of MS673, had already made a report to the police about his missing motorcycle on 11 April 2021. 

10.  PW1 attended the police station on 27 August 2021 to check the Motorcycle, PW1 confirmed that the Motorcycle was MS673, but its shell and handle had already been replaced.  The vehicle licence and his insurance policy had gone missing. (Charge 1)

CCTV

11.  CCTV at the vicinity of Sau Fai House captured the Defendant driving the Motorcycle to park at the Offence Location at 8:55 am on 25 August 2021.  He left at 9:00 am.  He returned at 9:48 a.m.  and stayed there until the arrival of the police. 

The Defendant’s driving licence

12.  The Defendant never possessed a driving licence for driving motorcycles.  (Charge 3)

13.  The insurance policy of the Motorcycle did not cover the defendant to drive (Charge 4) 

Criminal record

14.  The defendant has 8 court appearances with 15 previous convictions that including: -

(a)  Careless driving, driving while disqualified and without third party insurance (2003 and 2007)  and failing to stop (2007).

(b)  Other offences including gambling, trafficking dangerous drugs, possession of dangerous drugs.

Antecedent/mitigation

15.  The defendant is 43 years old, divorced. He co-habituated with Madam Yu, they have a son aged 12 years old. 

16.  There are also a number of letters before me, including one from the defendant to tell me that he committed the present offences due to unemployment in the Covid period. His wife also said that he is a responsible person to his family.

17.  Mitigating factors are: -

(a)  He pleaded guilty to all the charges

(b)  He is willing to compensate the Motorcycle owner $12,000.

(c)  During the missing period of the motorcycle, there was no report that it involved in any traffic accident.

(d)  The defendant is currently serving a 18 months PO order which was imposed on him on 2 August 2022. The defendant took up a 12 months’ voluntary drug treatment course and is hoping that this Court can treat him leniently to provide him the opportunity to continue the treatment which is due to complete in August this year.

18.  The defence suggested an overall sentence of about 9 months for the present offences is sufficient to reflect the gravity of the offences, if PO order is not to be considered. 

Sentence

19.  Regarding the maximum sentences of the individual offences:

a. Charge 1 – theft of the Motorcycle – maximum sentence is 10 years, plus a disqualification order under S.69 of the Road Traffic ordinance. Cap 374.

b. Charge 2 – forgery of document – a fine at level 3 and maximum sentence of 3 years

c. Charge 3 – driving without license – first conviction is a fine at level 2 and maximum sentence of 3 months

d. Charge 4 – driving without 3^rd party insurance – a fine at level 2 and 12 months’ imprisonment, disqualification not less than 12 months or more than 3 years.

20.  As rightly point out by the defence in HKSAR v Cheng Chun Ming CACC 356/2000 that: -

“cases involving the theft or handling of motor cars are very serious and inevitably call for immediate custodial sentences of considerable length.”

21.  While in the case of HKSAR v SO Pak Lun CACC 276/2013, the Court of Appeal said that:-

“ 申請人更在停牌、無第三者保險的情況下駕駛電單車及在遭警車追捕下作出極為嚴重的危險駕駛及超速駕駛行為。

27. 申請人的駕駛行為可能對其他道路使用者造成極嚴重的人身傷亡，而受害者亦會因為申請人沒有第三者保險而得不到任何賠償。

28. 本庭亦不能忽視申請人更隨便盜取及/或使用他人的財物。

29. 本庭認同原審法官的立場，申請人目無法紀的行為須阻嚇，而加重刑罰亦是唯一的阻嚇方法。

30. … 本庭認為以申請人的背景和犯案手法而言，盜取價值28,000元的電單車和處理價值35,000元贓物的電單車而言，適當的量刑基準應分別是2年和18個月監禁。”

22.  As such, given the number of offences and the serious nature of the case, a probation order is clearly inappropriate.

Charge 1 – Theft of Motorcycle

Charge 2 - Forgery of Document

23.  In the present case, the defendant had stolen the vehicle for a period of 4 ½ months.  Not only the motorcycle owner suffered the loss of a motorcycle (valued at $12,000), it also caused him inconvenience. 

24.  The defendant also used another number plate (charge 2)  to prevent the police from locating the motorcycle.  This is a calculated move and amounted to premeditation.

25.  I considered that the appropriate starting point for charge 1 should be 2 years, given his guilty plea, it reduces to 16 months. 

26.  I also impose a disqualification order of 2 years in respect of all classes of vehicle under S. 69 of the Road Traffic Ordinance, Cap 374.

27.  As to charge 2, I take a starting point of 12 months, reduces to 8 months after 1/3 discount. 

Charge 3- driving without a valid license

Charge 4 – driving without 3^rd party insurance

28.  As stated in the summary of facts, the defendant never possesses a driving license for driving a motorcycle and clearly the insurance certificate did not cover him in driving the stolen motorcycle. 

29.  These are serious offences in particular that the defendant never past a driving test for driving the motorcycle. 

30.  In such circumstances, I consider that 6 weeks as the starting point for charge 3 is appropriate, given the usual 1/3 discount, reduce to 4 weeks’ imprisonment. 

31.  As to charge 4, it has been reiterated in many cases, that when a person drives without 3^rd party’s insurance, when any road users meet with car accidents, they are not cover by insurance for compensation. 

32.  It is the third time that the defendant was convicted for this offence, obviously he has not learnt from past experience and the past sentences served no deterrent effect upon him. 

33.  I disagree with the defence that the 3 months starting point would serve the purpose. 

34.  Against this background, I take the maximum sentence of 12 months as the starting point for charge 4, reduce to 8 months after 1/3 discount. 

35.  In his first and second convictions in 2003 and 2007, he was disqualified for 16 months and 2 years respectively. This is the third time that he is convicted for such an offence. I disagree with the defence that the disqualification period should fall between 12 to 18 months.

36.  To this end, I impose a disqualification order in respect of all classes of vehicles for a period of 3 years. Both charge 1 and 4 ‘s disqualification orders are to run concurrently.

Compensation Order

37.  This morning, the prosecution informed me that the motorcycle has been altered. The owner could not re-used it again. The value of the motorcycle worth $12,000. The Prosecution asked for $12,000 compensation.

38.  The defence informed me that it was the intention of the defendant to pay $12,000 compensation in Oct,2022 when he first indicated his guilty plea in the District Court.

39.  I am also told that this $12,000 has been deposited in the District Court account office and is now ready to pay to the motorcycle owner.

40.  As such, I order the defendant to pay $12,000 to the victim Mr. Wong Chiu-dang as stated in charge 1.

41.  In view of the compensation order, I reduce 2 months’ imprisonment in charge 1, now comes down to 14 months.

42.  The individual sentence after 1/3 discount: -

Charges	After 1/3 discount	Further discount	Disqualification Period
1	16  months	16-2 = 14 months	2 years
2	8 months
3	4 weeks
4	8 months		3 years

Totality

43.  I order sentences in charge 2 to 4 to run concurrently.  A total of 8 months.  4 months to run consecutively to charge 1.

44.  The total sentence is 18 months. (14 + 4 = 18 months)

Disqualification order

45.  Both charge 1 and 4 disqualification orders are to run concurrently. A total of 3 years.

KT/744/22

46.  I also order the probation order in KT/744/22 to be discharged.