HKSAR v. WONG KWOK LEUNG

DCCC 862/2019 & 271/2020 (Consolidated)

[2021] HKDC 528

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASES NOS. 862 OF 2019 & 271 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 5 charges of "Theft" (Charges 1, 2, 5, 8 and 12); 3 charges of "Driving while disqualified" (Charges 3, 6 and 9); 3 charges of "Using a motor vehicle without third party insurance" (Charges 4, 7 and 10); and 1 charge of "Making off without payment" (Charge 11).

Summary of Facts

Background

2.  The defendant was disqualified from driving between 2 May 2019 and 1 May 2020.

Charge 1

3.  Mr. AU Ho-yin was the owner of a private car MV3053 ("V1").  He allowed Mr. AU Kin-man (PW2) to use V1.

4.  About 8:00 p.m. on 7 July 2018, PW2 parked V1 at Parking Meter No.9097A situated at Man On Street, Tai Kok Tsui ("Location 1") and locked it.  About 4:00 p.m. on 9 July 2018, PW2 went to Location 1 and found V1 missing.  He alerted the Police.

5.  About 5:30 a.m. on 8 July 2018. Mr. Choi (PW3) was driving his taxi near Location 1.  He was asked by the defendant to jump start the engine of V1.  PW3 charged the defendant $80 for using his jumper cable.

6.  On 12 July 2018, V1 was found in Wong Tai Sin. The defendant's DNA and fingerprints were found inside the car.  CCTV footage of a nearby shop captured the defendant's presence at Location 1 on 8 July 2018. The Police arrested the defendant at his residence on 27 July 2018.

7.  In his records of interview taken on 27 July 2018 and 11 July 2019, the defendant admitted under caution that he was the male captured in the CCTV footage.  He stole V1 by himself.  V1 was unlocked so he opened the door.  He found a key card inside the car.  A taxi driver helped him jump start V1.  The defendant drove V1 to his girlfriend's home.

Charges 2, 3 and 4

8.  Mr. So was the owner of a private car NB6682 ("V2").  About 11:00 a.m. on 6 July 2019, Mr. So parked V2 at Nanjing Parking, Sung Wong Toi Road, Kowloon City and locked it.  On 13 July 2019, Mr. So found V2 missing.  He alerted the Police.

9.  Later on the same day, the Police found V2 illegally parked near No.179C Kowloon City Road.  Its rear right window was damaged.  The defendant's fingerprint was found on the rear view mirror inside V2.

10.  In his video recorded interview taken on 5 September 2019, the defendant admitted under caution that he had stolen V2 and driven it to No.179C Kowloon City Road.  He was disqualified from driving and did not have third party insurance.

Charges 5, 6 and 7

11.  Mr. Tang was the owner of a private car SR3831 ("V3").  He allowed Mr. Wong (PW5) to use V3.

12.  About 9:30 a.m. on 19 August 2019, PW5 parked V3 at Parking Meter No.8965 situated at Mok Cheong Street, To Kwa Wan ("Location 3") and left the car keys inside the car.  Later on the same day, PW5 found V3 missing.  He alerted the Police.  CCTV footage of a nearby shop captured the defendant driving away V3 around 12:20 p.m. that day.

13.  About 3:15 p.m. on 29 August 2019, PW5 found V3 parked at Location 3.  The vehicle registration document of SR3831 was missing and a pair of licence plates marked TK6897 were found inside the car.

14.  In his video recorded interview taken from 2215 hours to 2251 hours on 4 September 2019, the defendant admitted under caution that he had stolen V3 at noon on 19 August 2019 at Location 3.  He found the keys inside the car and drove it to a nearby carpark.  The licence plates marked TK6897 did not belong to him.  The defendant was disqualified from driving and did not have third party insurance.  He had thrown away the car keys of V3.

Charges 8, 9, 10 and 11

15.  Mr. Muqdas was the owner of a private car UD4604 ("V4").  He allowed Mr. Adeel (PW7) to use V4.

16.  On 24 August 2019, PW7 last checked V4, which was parked near the observation deck at Fei Ngo Shan, Jat's Incline, Tsz Wan Shan.

17.  About 9:00 p.m. on 2 September 2019, PW7 found V4 missing.  About 9:30 p.m. on 3 September 2019, PW7 found V4 parked on a road in Kowloon City.  He alerted the Police.  Before the Police arrived, the defendant entered V4 and sat on the driver's seat.  He was arrested after the Police arrived.

18.  On 2 September 2019, V4 was driven out of the carpark at Chun Seen Mei Chuen, Ma Tau Wai ("Location 5") without paying the parking fee by tailgating another vehicle.  CCTV footage revealed that V4 was parked at an hourly rate parking space at Location 5 on 30 August 2019.  The parking fee incurred was $608 and the sum was payable to "Yue Xiu Apt Parking".

19.  In his 2 video recorded interviews taken on 4 September 2019, the defendant admitted under caution that he had stolen V4 at the Fei Ngo Shan observation deck and driven it to Kowloon City.  He used his own Octopus card to enter Location 5 and parked V4 there.  The defendant was disqualified from driving and did not have third party insurance.  He knew he had to pay the parking fee (for Location 5) but avoided payment by tailgating another vehicle when leaving the carpark.

Charge 12

20.  Mr. Chan (PW8) was the owner of a private car KX6098 ("V5").  About 7:30 p.m. on 22 July 2019, he parked V5 near Lamppost No.VA4234, Shek Lau Po, Lantau Island.  About 7:30 a.m. on 28 July 2019 at the same location, PW8 found the right rear window of V5 broken and the ignition key switch damaged.  He also found $100 cash and a car camera (valued at $500) missing from V5.  The repair costs of V5 were $2,000. 

21.  Later on the same day, the Police found blood on the rear passenger seat of V5 and took a sample of it.  It was found matching with the defendant's.  The defendant now admits that he had stolen $100 cash and a car camera from V5.

Mitigation

22.  The defendant is 37 and has 5 conviction records which included 1 "Burglary" offence, 1 "Taking conveyance without authority" offence and 1 "Theft" offence.  He also has convictions of drug-related offences.  Defence counsel Mr. Yu informed me that the defendant was a stage construction worker at the Hong Kong Convention and Exhibition Centre earning $15,000 per month.  He resides with his girlfriend.

23.  In mitigation, Mr. Yu submitted that the defendant has been supporting his girlfriend to pursue her professional training.  She is now a trained beautician and is financially independent.  Mr. Yu explained that the defendant is an enthusiast for cars and driving to the extent of an automaniac.  Whenever he had time, he would rent cars to drive.  Since the defendant was disqualified from driving in 2019, he was unable to rent any cars to drive.  As a result, he foolishly resorted to stealing cars.  Mr. Yu stressed that the defendant only stole the cars for joyrides.  He had no intention to keep those cars nor did he sell them or take them apart for financial gain.  He did not use the stolen cars to commit any offence either.  All 5 cars were not expensive models.  V1 to V4 were recovered with little or no damage.  V5 was not stolen except for a broken window and a damaged ignition key switch.

Sentence

Charges 1, 2, 5 and 8

24.  The defendant is no stranger to theft-related offences.  In relation to stealing motor vehicles, he has 1 conviction of "Taking conveyance without authority" (dated May 2019, just 2 months before he committed Charges 2 to 12).  I am aware that all 4 cars were found within a few days to a week with little or no damage.  Irrespective of the reason(s) for stealing V1 to V4, I adopt a starting point of 3 years' imprisonment for each charge[1]. With the timely guilty pleas, the sentence for each charge is reduced to 2 years.

Charges 3, 6 and 9

25.  The defendant was disqualified from driving on 2 May 2019. He started driving in early July and committed the same offence 3 times within 2 months.  His behaviour clearly went beyond a flagrant breach of his disqualification order.  I adopt a starting point of 9 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 6 months.

Charges 4, 7 and 10

26.  The defendant has 1 similar conviction.  By driving V2 to V4, he has deprived all road users of adequate financial protection. He also committed the same offence 3 times within 2 months.  I adopt a starting point of 6 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 4 months.

Charge 11

27.  The maximum penalty for this offence is 3 years' imprisonment.  The parking fee avoided by the defendant was $608.  With the defendant's previous convictions, I adopt a starting point of 6 weeks' imprisonment.  With the timely guilty plea, the sentence is reduced to 4 weeks.

Charge 12

28.  In the course of committing this offence, V5 was damaged and the repair costs were $2,000.  These are aggravating factors, even though the value of the items stolen may not be substantial.  With the defendant's previous convictions, I adopt a starting point of 9 months' imprisonment.  With the timely guilty plea, the sentence is reduced to 6 months.

Overall Sentence

29.  Having considered the totality principle, I adopt a global starting point of 4.5 years' imprisonment for all 12 charges.  With the timely guilty pleas, the overall sentence is reduced to 36 months.  To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 2 to 4 concurrent; but 4 months consecutive to Charge 1;

(ii)  Charges 5 to 7 concurrent; but 3 months consecutive to Charges 1 to 4;

(iii)  Charges 8 to 11 concurrent; but 3 months consecutive to Charges 1 to 7; and

(iv)  2 months in Charge 12 consecutive to Charges 1 to 11.

30.  For Charges 3, 6 and 9, the defendant has no previous similar convictions.  The disqualification period shall be not less than 12 months.  I make a disqualification order of 12 months for each charge.

31.  For Charges 4, 7 and 10, the defendant has 1 previous similar conviction.  The disqualification period shall be not less than 12 months or more than 3 years.  I make a disqualification order of 2 years, which shall run from the date of conviction[2].  For the avoidance of doubt, the disqualification orders for Charges 3, 4, 6, 7, 9 and 10 shall run concurrently from the date of conviction.