HKSAR v. WAN HING LUNG

DCCC 284/2019

[2019] HKDC 1124

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 284 OF 2019

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REASONS FOR SENTENCE

1.  The defendant faces 4 charges of "Theft" (Charges 1 to 4); 1 charge of "Dangerous driving" (Charge 5); 1 charge of "Driving while disqualified" (Charges 6); 1 charge of "Using a motor vehicle without third party insurance" (Charge 7); and 2 charges of "Forgery of documents[1]" (Charges 8 and 9). He pleaded guilty to all 9 charges.

Summary of Facts

Charges 1 to 4

2.  About 10:00 p.m. on 24 November 2018, Mr. Chan (PW1) parked his private car TY9290 with chassis no. JTDBE9E3809000762 ("V1") near lamppost BC1196 at Ting Yat Road, Tsuen Wan.  V1 was locked; a car key and a "Giant" brand bicycle (valued at $30,000) were left inside.  About 12:10 p.m. on 26 November 2018, PW1 returned to the same spot and found V1 (together with the bicycle) missing.  This is Charge 1.

3.  About 11:30 p.m. on 24 November 2018, Mr. Luk (PW2) parked his private car UJ4838 ("V2") at the same location where V1 was parked.  V2 was locked.  In the afternoon on 26 November 2018, PW2 returned and found the key hole of V2's driver door as well as the front seat key hole and electronic wires having been damaged (repair cost $18,000).  He also found 2 Hi-Fi, 2 boxes, a car camera and a batch of repairing tools (valued at $5,300 in total) missing from V2.  This is Charge 2.

4.  About 9:40 p.m. on 25 November 2018, Mr. Hung (PW3) parked his private car KT7330 ("V3") at the same location where V1 was parked.  In the afternoon on 26 November 2018, PW3 returned and found the rear window of V3 completely shattered (repair cost $5,000).  A car camera (valued at $350) was also missing from V3.  This is Charge 3.

5.  On 17 September 2018, Mr. G. Singh (PW4) parked his private car PH7347 ("V4") near lamppost VA6691 at Shing Mun Reservoir in Tsuen Wan.  He returned on 23 September 2018 and V4 was intact. On 16 December 2018, PW4 found the rear window of V4 broken (repair cost $4,000) and both of its number plates (valued at $500 in total) as well as the paper vehicle licence missing.  This is Charge 4.

Charges 5 and 6

6.  About 2:15 a.m. on 16 December 2018, police officers spotted a private car bearing plate number KR9927 ("KR9927") being driven unsteadily on Castle Peak Road ― Hung Shui Kiu at the speed of about 40 km/h.  The officers turned on the siren and ordered KR9927 to stop using a loud speaker.  KR9927 suddenly accelerated and fled.

7.  The pursuit of KR9927 covered about 10.5 km of road segments in Tuen Mun and Yuen Long for about 5 minutes.  Its speed was 80 to 160 km/h when the speed limit was 50 to 80 km/h.  KR9927 also jumped the red lights at 5 different junctions.  On Yuen Long Highway, it weaved in and out of traffic at an estimated speed in excess of 150 km/h when the speed limit was 80 km/h.  On Hung Tai Road, it was driven against the traffic flow at 80 km/h when the speed limit was 50 km/h.

8.  KR9927 finally stopped at Hung Tin Road since all lanes were occupied by vehicles in its front.  The driver (later identified as the defendant) ran away from the car but was soon arrested.  The 2 passengers remained in the car.  KR9927 slipped forward and rammed into the truck in front since its hand brake was not pulled up.  At the scene, the defendant admitted under caution that he was disqualified from driving.

Investigation Results

9.  KR9927 was discovered to be V1.  Its paper vehicle licence had a small piece of paper bearing "KR9927" pasted on top to cover the original registration number "TY9290".  Its chassis number also matched V1's chassis number.  PW1 later confirmed that KR9927 was in fact V1.

10.  A private car with registration number "KR9927" was sold to the defendant in October 2018.  He, however, did not register the transfer of ownership with the Transport Department.

11.  A box, which PW2 later identified as one of the lost boxes in V2, was found in V1.  Two pairs of number plates, "TY9290" and "PH7347", were respectively found in the driver seat and front passenger seat of V1.

12.  The defendant's home in Kwai Chung was searched.  A "Giant" brand bicycle was found.  PW1 later identified it as his lost bicycle.  Under caution, the defendant admitted having taken it from the car.

13.  V1's third party insurance policy stipulates that only the policy holder (PW1) or persons permitted by him are entitled to drive the vehicle, provided that the driver is not disqualified from holding or obtaining driving licence.  The defendant is disqualified from driving any motor vehicle from 9 May 2017 to 8 May 2030.  This is Charge 7.

Admissions

14.  In his video recorded interview, the defendant admitted that he was driving V1 and jumped the red lights, despite knowing that the Police was pursuing him and had ordered him to stop.  He was aware that he is disqualified from driving from 9 May 2017 to 8 May 2022.  He saw 2 new acquaintances in Tin Siu Wai and offered them a joy ride.

15.  The defendant also admitted having stolen V1 and the bicycle inside as well as the box, which was found in V1, from V2.  He has described how he stole those properties.

16.  He now admits that he had committed the offences as particularized in Charges 1 to 9.

Mitigation

17.  The defendant is 43 and has 20 conviction records, which involved 80 odd offences. He has been in trouble with the law since the age of 15.  I need not repeat his criminal history in details, suffice it to say that it carries the profile of a car thief and an appalling driver.

18.  Defence solicitor Mr. Au informed me that prior to the present case, the defendant was a casual decoration worker earning about $6,000 per month.  He has a 14-year-old son from his previous marriage; the boy resides with his ex-wife.  The defendant's current wife resides in the mainland and they have no children.  In mitigation, Mr. Au submitted that the defendant committed the present offences due to financial needs.  Furthermore, the defendant is fond of driving; he drove V1 for fun.

Sentence

Charge 1

19.  The defendant is a repeated offender of theft-related offences (a total of 39 offences).  In relation to stealing motor vehicles, he has at least 9 convictions of "Taking conveyance without authority".  In this offence, the defendant not only stole V1, but also an expensive bicycle.  I adopt a starting point of 3 years' imprisonment for this charge.  With the timely guilty plea, the sentence is reduced to 2 years.

Charges 2 to 4

20.  The modus operandi of these 3 offences is "theft from motor vehicle".  In the course of committing these crimes, serious damage was done to V2 to V4, resulting in costly repairs. These are aggravating factors, even though the value of the items stolen may not be substantial.  I adopt a starting point of 12 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 8 months.

Charges 5 and 6

21.  Regarding Charge 5, the defendant's driving manner was beyond appalling.  He drove in such a dangerous way in order to avoid apprehension by the Police.  This is his 2^rd conviction of similar offence; an immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.  Bearing in mind that the maximum prison term for this offence is 3 years, I adopt a starting point of 2 years' imprisonment.  With the timely guilty plea, the sentence is reduced to 16 months.

22.  Charge 6 constitutes a flagrant breach of a disqualification order.  This is his 7^th conviction of similar offence.  I must adopt the maximum prison term of 12 months as the starting point.  With the timely guilty plea, the sentence is reduced to 8 months.

Charge 7

23.  The defendant has 14 similar convictions.  By driving V1, needless to say dangerously, he has deprived all potential victims of adequate financial protection.  I must also adopt the maximum prison term of 12 months as the starting point.  With the timely guilty plea, the sentence is reduced to 8 months.

Charges 8 and 9

24.  The maximum penalty of these offences is a fine of $10,000 and imprisonment for 3 years.  Plainly, the defendant's intention was to disguise the true identity of V1 and to conceal the fact that it was a stolen vehicle.  I adopt of a starting point of 12 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 8 months.

Overall Sentence

25.  In less than 3 months, the defendant stole 1 car (together with a bicycle inside) and damaged 3 other cars in order to steal from them.  To conceal the true identity of the stolen car, he committed the offences in Charges 8 and 9.  In order to avoid apprehension by the Police, he further committed Charges 5 to 7.  I adopt a global starting point of 5 years' imprisonment for all 9 charges.  With the timely guilty pleas, the overall sentence is reduced to 40 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 1 to 4 concurrent;

(ii) Charges 5 to 7 concurrent; but 12 months consecutive to Charges 1 to 4;

(iii) Charges 8 and 9 concurrent; but 4 months consecutive to Charges 1 to 7.

Thus, arriving at a total prison term of 40 months for all 9 charges.

26.  I am aware that in April 2019, the defendant was sentenced to a total term of 15 months' imprisonment in TMCC 681/2019 for offences similar to the present case.  Prosecuting counsel Mr. Wei informed me that the defendant committed the offences in the present case whilst on police bail for the offences in TMCC 681/2019.  I have considered the totality principle again. I order 5 months in the present case to run concurrent to the sentences in TMCC 681/2019.

27.  For Charge 5, I note that the defendant's previous similar conviction is dated June 2013.  Notwithstanding section 37 (3) of Cap.374, I still treat Charge 5 as his 2^nd conviction and make a disqualification order of 3 years, which shall not start to run until the defendant has finished serving the term of imprisonment imposed in the present case[2].

28.  For Charge 6, it is the defendant's 7^th conviction of similar offence, the disqualification period shall be not less than 3 years.  I make a disqualification order of 3 years.

29.  For Charge 7, it is the defendant's 15^th conviction of similar offence, the disqualification period shall be not less than 12 months or more than 3 years.  I make a disqualification order of 3 years, which shall run from the date of conviction[3].

30.  For the avoidance of doubt, the disqualification orders for Charges 6 and 7 shall run concurrently from the date of conviction.

31.  The defendant's driving manner and his repeated flagrant disobedience of disqualification orders render him a serious threat and danger to other road users.  In order to put a halt to his recidivous behaviour, I have no hesitation in ordering him to be re-tested[4]. On this basis, I do not see the need to order him to complete a Driving Improvement Course.  I make no order in this regard.

32.  The defendant has been going in and out of correctional institutions repeatedly since his teenage years.  The court can only do so much in deterring a persistent criminal by way of a heavy penalty.  Whilst the sentence must carry a deterrent effect, it cannot go out of proportion.  I accept that there are limits in our penal system.  If the defendant refuses to reform and to live a law-abiding life, that is his choice, and he will have to face the consequences.