HKSAR v. CHEUNG TSZ LUNG AND OTHERS

DCCC 244/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 244 OF 2013

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REASONS FOR SENTENCE

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1.  D1 and D2 stand convicted after trial of criminal damage, contrary to section 60 of the Crimes Ordinance, Chapter 200 (charge 1). D3 and D4 pleaded guilty to this charge on the first day of the trial. D1 has pleaded guilty to three further charges of speeding; driving whilst disqualified and using a motor vehicle without third party insurance, contrary to sections 41 & 44 of the Road Traffic Ordinance, Chapter 374 and section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 272

2.  Full particulars of the criminal damage are set out in my verdict delivered on the 16 December last year.  In summary at about 10:45 a.m. on the 26 November 2012 Madam Sung was going about her business of delivering meal boxes to the construction sites at Providence Bay in Tai Po.  Whilst Madam Sung was packing meal boxes at the rear of the light goods vehicle (PA 6035) she was using D3 and D4 each holding a crowbar smashed the windscreen and side mirrors of the light goods vehicle as depicted in the photographs submitted at trial. 

3.  D2 was standing near the light goods vehicle acting as a lookout whilst D1 was the getaway driver.  The defendants had met earlier that morning in Tsuen Wan when D1 drove them to the construction site in Tai Po in a private car registration number RE 7089 and pointed out which light goods vehicle was to be damaged.  D2, D3 and D4 then got out of the car and went to damage the light goods vehicle.

4.  When Madam Sung looked to the front of her vehicle and saw one of the defendants smashing the window she shouted why they hit her vehicle.   D3 and D4 continued to smash the windscreen of the vehicle and then ran away.  At the same time D2 told D3 and D4 to run quickly.  D2, D3 and D4 then ran to RE 7089.  During the chase one of the defendants, either D3 or D4, in a very fierce manner pointed at Madam Sung and said, “This time your car is hit, next time it is not as simple as hitting your car be careful.”

5.  D2, D3 and D4 got into RE 7089 which was driven away by D1 at high speed.  Madam Sung noted down the registration number and called the police.  PC 59020 and PC 59027 were on mobile patrol on Chong Shan Road in an unmarked police vehicle, equipped to check the speed of vehicles, when they saw RE 7089 overtake them at a speed of 76km/h. The speed limit was 50km/h.  The police officers intercepted RE 7089. 

6.  D1 was the driver with D2, D3 and D4 passengers.  On enquiry D1 was found to be disqualified from driving until 4 January 2014 by reason of which he had no third party insurance.  The police officers found two crowbars on the floor of the rear passenger seat. 

7.  In passing sentence I have taken into account everything said on behalf of the defendants by Mr Wu, Mr Lau and Mr Bullett together with the letter from D2’s employer. 

Criminal Damage

8.  At trial Madam Sung explained that between April 2009 and June 2012 she paid protection fees to a person called Yiu Kam Hin and what happened when she refused to pay anymore.  In Mid October 2012 Madam Sung still refused to pay when she was told she was now an enemy.

9.  I admitted this evidence at trial as relevant to explain the events of the morning of the 26 November 2012.  As stated at trial I am satisfiedthat the payment of protection fees is background evidence only there being no evidence that any of the defendants were in any way connected with the demand or collection of protection fees from Madam Sung. 

10.  Nevertheless this is without doubt a very serious act of criminal damage which was clearly planned with the intention of disturbing Madam Sung carrying out her lawful business. I am satisfied a deterrent sentence is required.

11.  Mr Wu submits a sentence in the range of 6-12 months is appropriate.  Mr Lau submits two cases for my consideration: R v Wei Yung Chun HCMA 712/1996 and R v Chan Yeung Kei CACC 407/1995. 

12.  I do not find particularly helpful the decision in Wei Yung Chun.Save for reference to the offence being a very serious offence committed by a large gang which entered a club with pipes and other weapons there is no details in the judgment of the background to the case or the extent of the damage.  I do however note that the court said that nobody could quarrel for one moment with a 12 month term taking into account the plea of guilty and that the appellant could consider himself fortunate the sentence was not increased

13.  In Chan Yeung Kei the facts of which bear some resemblance to the present case in that there had been a demand for protection fees a sentence of 12 months imprisonment was imposed for criminal damage.  This was not however the subject of appeal and therefore considered by the Court of Appeal.  I also note that the criminal damage which was the kicking and pushing over of tables and stools in a tea stall caused minor damage to the extent of only $200.  In my view the present case is far more serious than Chan Yeung Kei.

14.  Taking into account all the circumstances including that this was a planned action; four persons were involved and the extent of the damage I am satisfied a starting point of 2 years and 6 months is appropriate.

15.  Mr Lau also submits a distinction is to be drawn as to the roles played by the defendants. Whilst D3 and D4 were the ones who actually did the damage I am satisfied there should be no distinction drawn between any of the defendants.  I am satisfied that the role of D1 as the getaway driver and D2 as the lookout were essential roles in the carrying out of the joint enterprise to damage PA 6035 (see for example HKSAR v Lo Kam Fai CACC 356/2005).

Assistance to authorities

16.  Mr Bullet seeks to explain D3 and D4’s involvement because they are torture claimants and thus not allowed to work.  In my view this does not amount to mitigation.  The Court of Appeal has recently stated that the commission of offences by torture claimants is capable of aggravating sentence rather than mitigating (see the observations of the Court of Appeal in HKSAR v Sandagdorj Altankhuyag & another CACC 45/2013).

17.  In addition to pleading guilty D3 and D4 have given evidence for the prosecution. In the circumstances I am satisfied a discount of 50% should be given to D3 and D4 (see HKSAR v Z [2007] 1 HKLRD 977).   This makes the sentence to be served by D3 and D4 one of 15 months imprisonment.

Totality

18.  D3 and D4 are both serving sentence of 20 months imprisonment imposed on the 9 July 2013 in DCCC 366/2013 for an offence of burglary committed on the 22 November 2012, four days before the commission of the criminal damage.  D3 and D4 were caught red handed for the burglary and were somewhat surprisingly granted police bail.  The criminal damage was therefore committed whilst on bail which is an aggravating feature of sentence.  Taking into account that the burglary and criminal damage are entirely separate and distinct offences and that the criminal damage was committed just after being released on bail for the burglary I am satisfied wholly consecutive sentences are appropriate.  This makes a total sentence to be served by D3 and D4 of 2 years and 11 months imprisonment which I am satisfied properly reflects their criminal culpability on the two charges. 

Compensation

19.  The prosecution have submitted to court a copy of the receipt for the repair of PA 6035 in the sum of $9830.  Although there was no offer of compensation by any of the defendants in the course of mitigation upon enquiry by the court all have agreed to equally compensate the owner of PA 6035 from their bail monies.  In addition to the prison sentences I order each defendant to pay the sum of $2,457.50 from their bail monies. 

Speeding, driving whilst disqualified and using a vehicle without third party insurance

20.  The maximum penalty for speeding is $4000.  D1 having eight fixed penalties for speeding I am satisfied a fine of $2000 is appropriate.  D1 consents to this sum being taken from his bail money.

21.  Unless there are very exceptional circumstances a custodial sentence is appropriate where there is a flagrant breach of the disqualification order (see for example HKSAR v Ng Suen Wai [2003] HKLRD 663).  D1 having twice previously been convicted of driving whilst disqualified and sentenced to imprisonment is no doubt well aware of this.  There was absolutely no justification for the driving which was in the course of committing a criminal offence.  I am satisfied the appropriate starting point is 6 months imprisonment. 

22.  By reason of the disqualification order D1 had no third party insurance.  Again having also twice previously been convicted of driving without third party insurance I am satisfied the proper starting point after trial is also one of 6 months imprisonment.  

Totality

23.  Giving D1 full credit for his pleas of guilty reduces the sentences to 4 months imprisonment.  The two offences arising out of the same facts I order the sentences to be served concurrently.  Albeit D1 was driving as part of a joint enterprise to commit criminal damage these two offences are separate and distinct from the criminal damage.  In determining the starting point for the criminal damage I have taken into account the role of D1 as the getaway driver but not the fact that D1 was disqualified from driving and was driving without insurance.  In the circumstances I am satisfied a wholly consecutive sentence is appropriate making a total sentence to be served of 2 years and 10 months imprisonment, which I am satisfied properly reflects D1’s criminal culpability on the three charges.

Disqualification

24.  There is mandatory disqualification for both driving whilst disqualified and using a vehicle without third party insurance unless the court finds special reasons.  The minimum period of disqualification stipulated in section 44(2) of the Road Traffic Ordinance for a second conviction is 3 years. 

25.  Although D1 has two previous convictions for driving whilst disqualified these were both contrary to section 12 of the Road Traffic (Driving-Offence Points) Ordinance, Chapter 375.  In my view the minimum periods of disqualification stipulated in section 44(2) apply only in respect of convictions under section 44(1).  The present conviction being the first conviction under section 44(1) the minimum period of disqualification is 12 months and not 3 years. 

26.  However in deciding whether or not to impose the minimum period I am satisfied I can take into account the fact D1 has been convicted of driving whilst disqualified on two previous occasions albeit under a different ordinance.  For those two offences D1 was sentenced to a total of 5 months imprisonment on the 5 January 2012.  At the same time D1 was disqualified for concurrent periods of 2 years for using a motor vehicle on each occasion without third party insurance. 

27.  D1 was released from the prison sentence on the 14 April 2012.  Just over 7 months later he was again driving whilst disqualified.  There being no special reasons I am satisfied the appropriate period of disqualification is 3 years.  D1 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years commencing today. 

28.  Again there being no special reasons for using a vehicle without third party insurance D1 is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 3 years also commencing today.   

Ill-health

29.  In 2005 D1 donated part of his liver for which he is to be commended.  This has unfortunately resulted in D1 needing to frequently go to the toilet.  This was only too apparent during the course of the trial.   Notwithstanding the sympathyone has with anyone in this situation, I am satisfied in the circumstances of this case the health of D1 does not amount to exceptional circumstances to reduce an otherwise appropriate sentence. 

30.  D1 has since donating part of his liver served 6 months imprisonment in 2006; 8 months in 2010 and 5 months in 2012.  There is nothing placed before me to suggest that the correctional services are unable to provide the appropriate care.  Clearly they must have been in a position to take care of D1 during these sentences.  Whilst I sincerely hope that there is no deterioration in D1’s health if the health of D1 does deteriorate whereby the correctional services can no longer properly take care of him he can petition the Chief Executive for clemency.

Sentence

31.  The defendants are convicted and sentenced as follows:

CHARGE 1 – D1 AND D2 – 2 YEARS AND 6 MONTHS IMPRISONMENT

D3 AND D4 – 1 YEAR AND 3 MONTHS IMPRISONMENT CONSECUTIVE TO THE SENTENCE THEY ARE NOW SERVING IN DCCC 366/2013.

IN ADDITION I ORDER EACH DEFENDANT TO PAY THE SUM OF $2,457.50 AS COMPENSATION TO THE OWNER OF PA6035 TO BE PAID FROM THEIR BAIL MONIES.

CHARGE 2 – D1 FINED $2,000 TO BE PAID FROM HIS BAIL MONEY;

CHARGE 3 – D1 – 4 MONTHS IMPRISONMENT CONSECUTIVE TO CHARGE 1; CHARGE 4 – D1 – 4 MONTHS IMPRISONMENT CONCURRENT TO CHARGES 1 & 3

TOTAL SENTENCE TO BE SERVED BY D1 IS 2 YEARS AND 10 MONTHS IMPRISONMENT.

DISQUALIFICATION

D1 IS DISQUALIFIED FROM HOLDING OR OBTAINING A DRIVING LICENCE FOR ALL CLASSES OF VEHICLES FOR A PERIOD OF 3 YEARS ON CHARGES 3 & 4, THE DISQUALIFICATION TO COMMENCE FROM TODAY.