HKSAR v. LAM CHUN YUNG

DCCC 504/2020 & 83/2021 (Consolidated)

[2021] HKDC 1600

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 504 OF 2020 & 83 OF 2021

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REASONS FOR SENTENCE

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1.  Defendant was convicted on his own plea and agreement to consolidated Summary of Facts to:-

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

(b)  a charge of conspiracy to wound with intent, contrary to section 17(a)  of the Offences against the Person Ordinance, Cap 212 and sections 159A and 159C of the Crimes Ordinance, Cap 200 (Charge 2);

(c)  a charge of taking conveyance without authority, contrary to section 14(1)  of the Theft Ordinance, Cap 210 (Charge 3);

(d)  a charge of wounding, contrary to section 19 of the Offences against the Person Ordinance, Cap 212 (Charge 4);

(e)  a charge of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210 (Charge 5);

(f)  a charge of driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (Charge 8); and

(g)  a charge of 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 (Charge 9).

2.  Upon the application of the prosecution, it is ordered that Charges 6 and 7 be left on the court file and not to be proceeded with without leave of the court.

Facts

Incident 1

3.  On 29 October 2019, at about 4:30 am, the victim, owner of a bakery shop, parked his car on Fuk Man Road in Sai Kung.  Later, he returned to his car and drove off, but soon noticed that his car’s rear tyre was abnormal.  He got off his car and noticed 5 screw caps on a rear tyre were removed. 

4.  When he was lingering around the back of his car, looking for a solution, then suddenly a black vehicle (V1)  approached him from behind and then swerved right towards him.  He dodged and narrowly escaped from being run over.  V1 then crashed into the flowerbed on the roadside and was stuck between the curbs.  The victim then immediately fled from the scene.

5.  CCTV shows that soon afterwards, 3 persons abandoned V1, amongst whom was the defendant who walked away from the scene in opposite direction to where the victim fled. 

6.  Few minutes later, at around 4:41 am, defendant together with 2 other persons including Chan Kit Ying Nilson (Nilson)  and a woman were seen approaching a parked taxi VS2958, driven by Mr Chan Kwok Kueng.  Nilson, then holding a machete and initially covered in mask, opened the taxi’s door and threatened the taxi driver, Mr Chan, to get off the taxi and pointed the blade close to Mr Chan while delivering his demand. 

7.  Mr Chan in his sitting position then put up his hands to gesture compliance, but in the course of which the machete’s blade came into contact with his hands and he sustained cuts between right thumb and right index finger as well as laceration at webspace between left middle finger and left ring finger.  While Nilson was threatening the taxi driver, defendant was standing on the other side of the taxi watching while holding a blade.

8.  Mr Chan got off the taxi and Nilson then took over the driver seat while defendant sat in the passenger seat next to Nilson and the woman sat at the back, and then they took off.

9.  Upon reporting of the incidents, police investigated and found the abandoned V1 was actually a stolen car which belonged to a Mr Tse who parked his car near his residence.  He had last seen the car on 26 October 2019, ie 3 days before the ambush incident, and he noticed it went missing only when police notified him.

10.  In addition, police found and seized inside V1 2 torx wrenches and 5 screw caps apparently coming off from the tyre on the V1, and they also lifted Nilson’s fingerprint at the inside of the V1. 

11.  At 6:29 am, police recovered the taxi and CCTV showed that Nilson abandoned the taxi there at 5:45 am. 

12.  Later, upon arrest and under caution, the defendant admitted that a week before the attack, Nilson told him that he took up a task from a friend to chop the victim for $100,000 and invited the defendant to take part.  Defendant would receive half of the reward.  And 2-3 days before this attack, Nilson and defendant visited the victim’s bakery in Sai Kung when Nilson pointed out the victim to the defendant.  The night before the attack, at about 10 pm, Nilson and defendant boarded V1, and Nilson’s girlfriend was there also in the car.

13.  In the small hours of 29 October 2019, Nilson drove V1 to Fuk Man Road and Nilson told defendant that he saw the victim’s car parked there unattended.  Nilson then got off the car and removed the screws on the rear wheel on the victim’s parked car.  2-3 hours later, defendant saw the victim returning to his car and Nilson had already prepared two beef knifes for defendant to chop the victim.  The victim tried to drive his car but soon stopped to check the wheel.  At this juncture, Nilson sped up and drove V1 towards the victim, missing him but crashed V1 at the flowerbed.

14.  The three abandoned the V1 and then Nilson fled towards the taxi parked outside McDonald, defendant and the woman followed him.  On Nilson’s instruction, defendant and the woman boarded the taxi. 

15.  According to Nilson, he and defendant stole V1 in preparation to the attack.  They met in the night of 26 October 2019 and when they saw V1 by the roadside, Nilson plied open V1’s door and started its engine whilst defendant stood beside V1 as a lookout.  Defendant and Nilson then left with V1.

Incident 2

16.  On 2 December 2019, at about 1700 hours, Mr Chung parked his car (registration number EU5626)  in Yuen Long.  He then found the car missing on 13 December 2019.  On 7 January 2020, at around 0800 hours, Mr Tsoi found the front and back car plates of his car, ie registration number NU6636, missing. Later, police on patrol spotted a car bearing the same registration number (NU6636)  and the police noticed that it was a stolen car.  On the same day, at around 2350 hours, police ambushed at the junction of Tai Tong Road and Kau Yuk Road.

17.  On 14 February 2020, when the car was leaving Tai Tong Road, police intercepted the car and defendant was seen sitting in the driver seat. 

18.  Later, investigation showed that the registration mark of the vehicle on the vehicle licence was EU5626 whilst that displaying on the car plate was NU6636.  The chassis of the car belonged to EU5626.  The expiry date on the vehicle licence was 7 July 2020, which was different from the record of Transport Department which should be 2 January 2020. 

19.  The defendant did not have valid driving licence and his driving was not covered by third party risks insurance.  Under caution, he admitted he did not have a valid driving licence and remained silent to other things.

Criminal record

20.  Defendant has 8 previous records involving 10 charges, of which 4 are theft related and 2 related to violence.

Mitigation

21.  Defendant was born and raised in Hong Kong.  He is now aged 37.  He is educated up to Form 3 and has been working as a renovation worker earning $21,000 per month.  Due to social event and COVID-19, he lost his job as a renovation worker.  And at the time of his arrest, he worked as a part-time worker earning around $6,000 per month only.  He was the breadwinner of the family.

22.  Defence counsel said defendant is married but has been separated from his wife for years.  He has a daughter aged 8 and a son aged 11 from his relationship with a girlfriend.  They are both living in a public housing estate. 

23.  Defendant has a clear traffic record.

24.  Defence counsel submitted defendant is remorseful for what he has done and has pleaded guilty at the earliest possible opportunity, and that whilst in remand for the second incident, he surrendered himself and offered assistance to the police, revealing his own involvement with the first ambush incident.

25.  Prosecution confirm that at the time when the defendant surrendered himself for the first incident, the police has not yet implicated him, although they have already obtained the fingerprint of the accomplice, Nilson.

26.  It was said the defendant committed the first-incident offences due to financial stress.  Defence counsel also submitted that Nilson was sentenced to overall 40 months’ imprisonment after one-third discount on his guilty plea, and she referred to the case of DCCC 719/2020.  It is further submitted that the defendant was not the mastermind of the first incident.  He was just recruited by Nilson and that at the material time, Nilson was the driver. 

27.  The conspiracy in relation to Charge 2 was to chop the non-vital part of the body of the victim.  It was also said that the victim in the Charge 2 was ultimately not injured while the injury suffered by the taxi driver in the Charge 4 was not serious.  It was also said that Charges 1, 3 and 4 were committed in the course of or for the purpose of commission of Charge 2 and they pose as aggravating factors in sentencing for Charge 2.    

28.  It is submitted by defence counsel that defendant was less culpable than Nilson because Nilson was the mastermind whilst the defendant was the follower.  She also said that the commission of Charges 3 and 4 were spontaneous following Charge 2 and that it was initiated by Nilson while he was threatening the taxi driver, defendant was standing on the other side of the taxi watching and in the course of which Nilson injured the taxi driver.          

29.  She also referred this court to the cases of HKSAR v Cheng Chun Ming[1], HKSAR v Yu Chi Chiu[2] and HKSAR v Yeung Chi Wa[3], where it was said that the court would usually adopt a sentencing starting point of 3 years’ imprisonment for the theft of a vehicle.  

30.  As for the Charge 2, the maximum sentence is life imprisonment.  Defence counsel submitted that the Court of Appeal had said that the usual range of sentence for wounding is between 3 to 12 years’ imprisonment.  And the facts of each case is different and the gravity of the offence would depend on the facts of a particular case. 

31.  She referred this court also to the case of 香港特別行政區 訴 陳傑瑛[4], ie the case of the accomplice, Nilson, where the court had considered the cases of HKSAR v Lee Kwok Lam and 3 Others[5].

32.  Defence counsel also referred this court to the cases of HKSAR v Gurung Tikaram[6], R v Fok Tin Yau[7] and R v Cheng Shu Wai[8].

33.  As for the Charge 2, defence counsel again submitted that there is no sentencing tariff for taking conveyance without authority, and she referred this court to the case of R v Tam Simon[9], where Chan J (as he then was)  having said that:-

“It does appear that there can be a wide range in the sentence for such offence, ranging from a case of a person taking a car for a joy-ride at one end to a person taking a car in connection with the participation of a serious crime at the other. One has to bear in mind that the maximum penalty upon a conviction on indictment is seven years.”

34.  Coming to the Charge 4, the defence counsel conceded that the maximum sentence for section 19 wounding is 3 years’ imprisonment and that there is no sentencing guideline for this offence.  She submitted the usual range of sentence would be 6 to 18 months’ imprisonment, depending on the particular circumstances of each case.  She said that in the case of 陳傑瑛, the sentencing judge adopted 12 months’ imprisonment as a starting point for taking conveyance without authority and section 19 wounding, and that the 2 sentences to run concurrently.

35.  As for Charge 5, handling stolen goods, defence counsel submitted again there is no sentencing guideline and she conceded that the same would attract a custodial sentence.  It said the car was founding missing on 13 December 2019 and the car was found in possession of the defendant 14 February 2020.  There is no evidence to suggest the defendant instigated or encouraged or had knowledge of or had connection with the primary offence beforehand, or that there is any sophistication in the handling or that he provides a regular outlet for stolen goods. 

36.  She referred this court to the case of HKSAR v Fan Chi Wai[10], where defendant was convicted after trial for handling stolen motor vehicle worth $40,000 and was sentenced to 2 years and 6 months’ imprisonment.  The sentence was upheld by the Court of Appeal.  She submitted that 2 years and 6 months to 3 years’ imprisonment should be the starting point for handling stolen goods to reflect the seriousness and culpability of the defendant.

37.  Coming to the Charge 9, using a motor vehicle without third party insurance, defence counsel conceded again there is no sentencing guideline for this charge.  She referred this court to the case of HKSAR v So Po Fuk[11] and the case of Yeung Chi Wa. 

38.  As to the disqualification order, defence counsel said, referring to the case of Yeung Chi Wa, that the same should be forward-looking and preventive rather than punitive.  She said that a short period of imprisonment and disqualification order of 12 months is appropriate. 

39.  Defence counsel also said that Charges 1, 3 and 4 were committed in the course of or for the purpose of commission of the Charge 2, and that in view of the circumstances of the case and the totality principle, it is submitted that it would be appropriate for sentences of Charges 1, 3 and 4 to be served concurrently or partially consecutively to Charge 2 to reflect the overall culpability of the defendant.

40.  Defence counsel also asked this court to order that sentences of Charges 8 and 9 to be served concurrently or partial consecutively to Charge 5, and that the sentence of the offences in the second incident to be ordered to run partially consecutively to those of the offences in the first incident.  She also urged this court to give the defendant full credit for his guilty plea.

Discussion

41.  Before sentencing, this court has considered fully the submission by defence counsel including, of course, the legal authorities concerned and also the mitigation letter from Pastor Lam. 

Charge 1

42.  Defendant has 4 previous convictions relating to theft, the last one being in 2010.

43.  The usual sentencing starting point for theft of a vehicle is 3 years’ imprisonment.[12] In this case, the vehicle was deployed for the purpose of commission of a serious wounding offence.  The same posed as an aggravating feature in sentencing. 

44.  Accordingly, the appropriate sentencing starting point for this charge is 3 years and 6 months’ imprisonment.  The same is reduced to 2 years and 4 months’ imprisonment by reason of defendant’s guilty plea for which he is entitled to full one-third sentencing discount.

Charge 2

45.  The maximum sentence upon conviction on indictment of this offence is life imprisonment. 

46.  Defendant here together with Nilson had planned the wounding incident on the victim.  They stole the car, ie V1, beforehand.  They went to the bakery beforehand to identify the victim and later they laid ambush on him on the day of the planned attack.  They further removed the screws from the rear tyre of the victim’s car so that they could wound him when he got off from the vehicle.

47.  The planed wounding venue is a public place.  The time of the attack is early hours of the day.  3 persons were deployed in the act, 2 equipped with deadly weapon machete and the third one possibly for lookout purpose.  It was pure luck that the victim managed to escape when the car got stuck after crashing onto the roadside.

48.  Defendant committed the offence purely for money.  There was no previous dispute between the defendant and the victim. 

49.  Considering the circumstance of the case, even though the victim remained unharmed physically, save frightened psychologically, the appropriate sentencing starting point is 4 years and 6 months’ imprisonment.  By reason of defendant’s guilty plea, he is sentenced to 3 years’ imprisonment for this charge.

Charge 3

50.  Defendant has 4 previous convictions relating to theft, the last one being in year 2010. 

51.  There is no sentencing tariff for the offence.  But as Chan J (as he then was)  said in the Tam Simon case, the sentencing starting point for this offence should reflect the purpose for commission of the offence. 

52.  The purpose of committing this offence is in relation to the commission of a more serious offence, ie the wounding 17 offence.  The sentencing starting point must reflect the severity. 

53.  The appropriate sentencing starting point is therefore 3 years and 6 months’ imprisonment, and defendant is sentenced to 2 years and 4 months’ imprisonment by reason of his guilty plea. 

Charge 4

54.  Again, there is no sentencing guideline for this offence.  Defendant has 1 previous conviction relating to violence in year 2011.  This court is not going to enhance his sentencing starting point by reason of this previous conviction. 

55.  The injury on the victim was not serious but at the time, the defendant was standing on guard while himself and Nilson were each holding a machete in their hand, and they were threatening the victim to hand over his taxi for their escape.

56.  Appropriate sentencing starting point here is 12 months’ imprisonment, and defendant is sentenced to 8 months’ imprisonment for this charge by reason of his guilty plea.

Charge 5

57.  Upon conviction on indictment, the maximum sentence is 14 years’ imprisonment. 

58.  Defendant has 4 previous convictions relating to theft and the Agreed Facts shows that he has committed 2 theft-related offences just 4 months prior, ie the first incident, Charges 1 and 3.

59.  Defendant was driving the stolen car with car plate from another vehicle in early hours of the day.  This supports the contention that defendant was not committing the offence for joy-ride but for doing something which defendant would not want to be located.

60.  The appropriate sentencing starting point for this offence is 3 years’ imprisonment.  Defendant is sentenced to 2 years’ imprisonment by reason of his guilty plea.

Charge 8

61.  On the first conviction of this offence, a person is liable to a fine of $5,000 and imprisonment for 3 months. 

62.  This is the first conviction of the defendant and this court finds that the appropriate sentencing starting point is 9 weeks’ imprisonment. 

63.  Defendant is afforded one-third sentencing discount by reason of his guilty plea.  He is accordingly sentenced to 6 weeks’ imprisonment for this charge.

Charge 9

64.  A person convicted of this offence is liable to a fine of $10,000 and imprisonment for 12 months. 

65.  This is the first conviction of defendant.  Considering the risk posed to other road users and property around, this court finds the appropriate sentencing starting point for the offence is 9 months’ imprisonment.  

66.  Again defendant is afforded one-third sentencing discount by reason of his guilty plea.  He is sentenced to 6 months’ imprisonment for this charge. 

67.  On conviction of this charge, the court shall, unless for special reasons thinks fit to other otherwise, order that the defendant be disqualified from holding or obtaining a driver licence of a vehicle for such period as the court may determine, being not less than 12 months or more than 3 years from the date of conviction.  

68.  There is no special reason in this case and, accordingly, the court now orders that the defendant be disqualified from holding or obtaining driving licence of any class for 2 years from today, ie the date of conviction.

Totality

69.  Charges 1 to 4 relate to the same ambush incident 1.  There are 2 wounding victims and 2 car owners’ victims.  When sentencing Charges 1 to 4, the court did consider the purpose of the commission of the offence.  Having regard to the total culpability of the defendant in the whole incident 1, this court considers that the total sentence of 4 years and 8 months’ imprisonment is a just and proportionate sentence.  

70.  Accordingly, 1 year of the sentence in Charge 1, 3 months of the sentence in Charge 3 and 5 months of the sentence in Charge 4 is to run consecutive to the sentence in Charge 2.  The rest of the sentence of Charge 1, 3 and 4 is to run concurrent to the sentence in Charge 2.

71.  As for the sentence for Charges 5, 8 and 9, they all related to the same second incident.  Having regard to the total culpability of the defendant in the second incident, this court considers that the total sentence of 2 years and 6 months’ imprisonment is just and proportionate.  Accordingly, sentence of Charge 8 is to run totally concurrent to the sentence of Charge 9.  Sentence of Charges 8 and 9 is to run consecutive to the sentence of Charge 5.

72.  Incident 1 and incident 2 are roughly 4 months apart and they involved different victims.  There is no evidence that the 2 incidents are interrelated.  This court notes that Charge 5 in nature is similar to that of Charge 1 and 3. 

73.  Considering the total culpability of the defendant in the 2 incidents, the court considers that a total sentence of 5 years and 8 months is just and proportionate to the defendant’s overall culpability in this case. Accordingly, 12 months of the sentence of Charges 5, 8 and 9 is to run consecutive to the sentence of Charges 1, 2, 3 and 4.

74.  Total sentence for the defendant in this case is 5 years and 8 months’ imprisonment.