HKSAR v. WONG KAI YUEN

DCCC 100/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 100 OF 2012

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Reasons for Sentence

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1.  The defendants, D1 to D4 on the indictment in DCCC107/2012 and so termed throughout, have each pleaded to charges on the indictment. There are a total of 13 charges on the indictment. D1 faced counts 4, 5, 8 and 9, D2 counts 10 and 11, D3 counts 1 to 7 and 12, and D4 count 13.

2.  D3 admitted all the 8 charges that he faced, namely 3 counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Counts 1, 4 and 5 on the indictment, wherein he was jointly charged with D1 for counts 4 and 5), two counts of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 373, (Counts 2 and 6 on the indictment), 2 counts 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 (Counts 3 and 7 on the indictment), and one count of handling stolen goods, contrary to section 23 of the Theft Ordinance, Cap 210 (count 12).  D3 was also involved in two other cases, DCCC 68/2012 and DCCC 100/2012, and at his request, these two matters were brought up to be dealt with together with DCCC 107/2012, as it was indicated that D3 would admit the charges that he faced in these two matters, which he did.  I shall deal with the sentence of D3 in respect of the three matters together.

3.  D1 admitted two counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Counts 4 and 5 on the indictment, wherein he was jointly charged with D3) and one count 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 (count 8 on the indictment).  He denied a second count of using a motor vehicle without third party insurance, count 9 on the indictment.  The prosecution asked that charge 9 against D1 be left on file, and I directed that it be left on file, and was not to be proceeded with without leave from the court.

4.  D2 faced two counts of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210, counts 10 and 11 on the indictment.  He admitted Count 11, but denied count 10.  The Prosecution asked that charge 10 against D2 be left on file, and I directed that it be left on file, and was not to be proceeded with without leave from the Court.

5.  D4 admitted one count of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap 210, count 13 on the indictment.

6.  Full particulars of the offences admitted by the defendants are set out in the summary of facts admitted by each defendant.  Briefly, the thefts and handling charges herein relate to the theft of vehicles and the handling of the stolen vehicles.  There are a total of 4 vehicles that were stolen, which were referred to as “V2”, “V3”, “V4” and “V5” in the summary of fact and I shall refer to these as such.  V2, V3 and V4 were parked by their registered owners or authorized users in the locations as specified in the particulars of the theft charges, counts 1, 4 and 5, on the dates as set out in the particulars of the respective charges, leaving them secured but unattended.  When they returned to collect their vehicles, they were found to be missing and reports were made to the police.

7.  At around 11.10 pm on 6 September 2011, police raided an unnamed garage, referred to as Garage A, in Tin Shui Wai, New Territories.  V4 and V5 were parked outside Garage A.  D1 was seen alighting from the driver’s seat of V5 whilst D2 was alighting from the front passenger seat.  The ignition key bolts and driver door locks of both V4 and V5 were found to be damaged.  The registration plates of V4 had been detached and placed on the floor next to V4. D1 and D2 were arrested at the scene.

8.  Garage A was operated by D2.  The land was orally subleased to D2 without any formal tenancy agreement.  Upon search, the police found inside Garage A a partially dismantled V1, the ignition key bolt and driver door lock of which were found to be damaged, two expired vehicle licenses for V4, one set of vehicle registration documents for V4, vehicle documents of V2 and the rear spoiler of V5 detached from the vehicle.

9.  At around 6.30 pm on 9 September 2011, police raided another unnamed garage, referred to as Garage B, at Lo Wai in the New Territories.  Upon search, the police found inside Garage B V2, bearing false registration plates LN3612, V3 bearing false rear registration plate PV3806, the front registration plate PV3806 together with the genuine registration plates of V3 on the ground next to V2.  D3 and D4 were arrested at Garage B.

10.  Under caution at the scene, D1 admitted that V4 and V5 were stolen by him and he drove them to D2’s garage for repair.  In subsequent video recorded interviews, he further said that on 6 September 2011, someone he knew as ‘Ah Keung’ picked him up in a private car and drove him to Blossom Garden to steal V4 (count 4).  He acted as the lookout while Ah Keung stole V4.  After Ah Keung successfully broke into V4 using a screwdriver, D1 drove V4 away.  Ah Keung suggested they steal another car later.  D1 drove V4 to a carpark in Lei Muk Shue Estate with Ah Keung as his passenger.  After arriving at the carpark, Ah Keung stole V5 and drove it away while D1 drove D4 away (count 5).  Later, D1 drove V4 and V5 to D2’s garage for repair.  D1 had detached the rear spoiler of V5 from V5 and had detached the pair of genuine registration plates from V4.  As D1 drove V4 on a public road, and it had been stolen, he drove it without third party insurance (count 8).

11.  Under caution at the scene, D2 said it was D1 who brought V4 and V5 to him for repair.  The ignition key bolts were already damaged on V4 and V5 when D2 first saw them.  In subsequent video recorded interviews, D2 said he had been operating Garage A for 6 years.  He had become acquainted with D1 for about a month before his arrest and had repaired a few vehicles for him.  On 6 September 2011, D1 drove V4 to his garage for repair and instructed D2 to change the licence plates of V4.  He noticed that the ignition key bolt of V4 was broken and he knew it was a stolen vehicle.  Shortly after, D1 drove V5 to his garage and asked him to repair V5 (count 11).

12.  Under caution at the scene, D3 said it was someone called ‘Kwong Chai’ who stole V3 and he was only responsible for driving V3 to Garage B (count 1).  In subsequent video recorded interviews, D3 said he did not have a valid driving licence in Hong Kong.  It was ‘Kwong Chai’ who stole V3, V4 and V5.  His role was to act as lookout and to drive away the stolen vehicles for ‘Kwong Chai’ (counts 1, 4 and 5).  ‘Kwong Chai’ handed V2 to him to dismantle the vehicle and sell it for parts.  He knew V2 was stolen by ‘Kwong Chai’ (count 12).  As he did not have a driving licence when he drove V3 and V5, he committed the offences of driving without a valid driving licence and using a motor vehicle without third party insurance (counts 2, 3, 6 and 7).

13.  In his video recorded interviews, D4 said he lived at Garage B.  He assisted D3 to repair V2 and V3 and noticed that the ignition key bolt of V3 had been damaged.  He had been paid HK$400 for 2 days of work.

14.  The owner of V2 incurred loss of HK$7,000 in having the damage to his vehicle repaired.  The owner of V3 suffered a loss of HK$17,000 due to the stolen accessories and the cost of repair to his vehicle.  The owner of V4 suffered a loss of HK$1,100 because of stolen accessories and the cost of repair.  The owner of V5 suffered a loss of HK$5,000 due to stolen accessories and the cost of repair of the vehicle.

15.  No issue was taken by any of the defendants on the contents of the antecedent statements.  As I had indicated that I was minded to call for background reports for all the defendants, and in respect of D4 a Training Centre Report, counsel reserved mitigation.  The hearing resumed before me on 20 June 2012, and the various reports I had called for were before me.  After hearing Counsel in mitigation, I adjourned sentence until today.

16.  I have carefully considered all that has been urged upon me in mitigation on behalf of each defendant as well as the contents of the reports before me and the mitigation letters that have been handed up on behalf of D1, D2 and D4.

17.  There are no sentencing tariffs or guidelines for any of these offences.

D1

18.  D1 is now aged 42 years.  He was educated in Hong Kong, leaving school after finishing primary school.  Prior to his arrest, he worked as a casual motor electronic gadget technician.  He is married with two young children.  I am told that his younger daughter, who is now aged 4 years, has health issues.  A referral letter from the Tuen Mun Hospital dated 5/5/2009 was submitted wherein it was certified that she was suffering from central hypoventilation syndrome.  Her next appointment slip was also furnished.  The wife and children receive HK$13,473 a month from the Government.

19.  He has 39 previous convictions in 24 court appearances, with 15 involving dishonesty.  He is presently serving a sentence of 32 months’ imprisonment imposed on 23 March 2012 for an offence of burglary.  I am told his earliest date of release is 23 October 2013.

20.  Counsel on behalf of D1 submitted that he worked as a car repairer, earning about HK$8,000 a month.  He was under financial pressure.  Because of his daughter’s illness, the family had to spend HK$5,000 to HK$6,000 on medical supplies for her.  Counsel submitted that D1 was not the mastermind, and the thefts were initiated by ‘Ah Keung’ – his role was a minor one as he was the lookout and drove the stolen vehicles.  I did not find that his role was a minor one – he participated in the theft of the two vehicles, and it was he who on his own admission drove the two vehicles to Garage A.  He has admitted the charge of driving Vehicle 4 without third party insurance.  Counsel has submitted that D1 is willing to pay compensation to the owners of V4 and V5 for the damage to their vehicles, a total of HK$6,100 and that he was remorseful for his role in the offences.  Payment has not yet been made.  D1 is presently in custody for a burglary offence.  Counsel urged that a part of the sentence imposed be concurrent with the existing term, bearing in mind the totality principle.

D2

21.  D2 is now aged 32 years.  He quit school after finishing Form 3, and worked as an auto-mechanic.  He is single and lives with his family.  He contributes to the family every month.  Since 2005, he has operated Garage A, and earns about HK$10,000 a month.  He told the interviewing officer for the Background Report that he became acquainted with D1 about a month prior to his arrest, and he did not know D3 and D4.  D1 had brought vehicles to his garage for repair before and these were not suspicious.  When D1 brought V4 and V5 to his garage for repair, he noticed the damaged ignition key bolts and believed the vehicles to be stolen vehicles.  This corresponds to what Counsel submitted on his behalf as well as his account to the police upon arrest – that he suspected the vehicles were stolen, but had not been told specifically.  She sought leniency on his behalf.  D2 has one previous conviction in 2002 for possession of dangerous drugs and he was sentenced to the DATC.

D3

22.  D3 is now aged 34 years.  He was educated to Primary 6.  He is divorced and his ex-wife and son from that union live on the Mainland.  He co-habited with another woman, with whom he had 5 children, aged from 18 months to 8 years.  The present whereabouts of his co-habitee are unknown.  2 of the children are in foster care, while two live with a maternal aunt and uncle, and one lives with D3’s parents.  D3’s criminal record dates back to 1991, when he would have been about 13 years old.  He has 16 previous convictions in 10 court appearances, including 11 for theft offences, although I am told that these are his first offences for theft of vehicles.  By the present conviction, he is in breach of a suspended sentence of 2 months’ imprisonment imposed on 1 December 2010 for an offence of theft.  The present offence was  committed whilst he was on bail in respect of DCCC 100/2012 that he has admitted before me.  Counsel has submitted that D3 committed all the offences because of financial need – he was under pressure from his co-habitee, the mother of his five children, to marry her or she would leave him.  He was doing renovation work – business was not good.  He therefore committed the present offences to earn more money.

D4

23.  Section 109A of the Criminal Procedure Ordinance, Cap 221, provides that no court shall sentence a person of or over the age of 16 years and under 21 years of age to imprisonment unless the court is of the opinion that no other method of dealing with such person is appropriate.  As D4 is 19 years of age, I called for a Background Report as well as a Training Centre Report and I had these before me and carefully considered the contents.

24.  He is the only child of his parents who are divorced.  He quit school after finishing Form 4, and had worked as a Chinese medicine shop dispenser and bar waiter.  After his discharge from the DATC in August 2011, he had idled around and was not gainfully employed.  He has been in custody since his arrest on 12 September 2011, a period of some 9½ months.  His story is not an unusual one – he behaved properly while in primary school, but upon promotion to secondary school, he got involved with undesirable peers and even became a ‘triad follower’, and started abusing ketamine when he was in Form 2 at the age of 13 years and subsequently ice.  He played truant from school, would hang around at internet bars and game centres and return home late, leading to conflicts with his mother.  To support his drug habit, he helped to sell ketamine and then ice.  After his discharge from the DATC in August 2011, he only stayed at home for a few days, and then stayed at Garage B.  He said he came to know D3 after his release from the DATC.  Garage B was owned by D3’s friend.  D4 denied knowing D1 and D2.  He stayed at Garage B, and helped to repair 3 to 4 cars, for which he was paid $300 - $400 for each repaired vehicle.  He had seen the damaged ignition key bolts but was not informed the vehicles were stolen nor did he ask.  He sought leniency.  His mother too sought leniency on his behalf.  She said she had not rendered adequate supervision when he was growing up because she had to work and was a single mother.  D4 has 2 previous convictions, both in 2011, one for theft and one for possession of dangerous drugs, for which he was sentenced to the DATC. The report from the Commissioner of Correctional Services indicates that he is mentally and physically fit for detention in a Training Centre and there is a place available for him and he is considered suitable for detention in a Training Centre.  Counsel for D4 submitted that although she was not saying that a Training Centre Order would be inappropriate in the circumstances, D4 had been in custody since his arrest in September last year, some 9½ months.  The time that he has spent in custody whilst awaiting trial will not be counted if a Training Centre Order is made, and this would mean that effectively, he would be serving a greater sentence than the norm for offences of this nature if he is sent to prison, and thus might be excessive in the circumstances.  I note from Part VII of the report from the Commissioner of Correctional Services that after D4’s release from the DATC on 15 August 2011, he had relapsed to taking dangerous drugs, as urine samples taken from him were found to be positive for methamphetamine and cocaine.  As he was released from the DATC subject to one-year statutory supervision, and had relapsed into taking dangerous drugs, he was recalled to the DATC for further drug addiction treatment on 31 October 2011.  His supervising officer at the DATC revealed he showed fair response towards counselling and completed the recalled programme on 16 February 2012.  So, although he has been in custody since his arrest, part of the time was spent in the DATC.  The officer who prepared the report, Li Tsz-kin, said in Part VIII of the report that ‘throughout the interview, defendant showed to be carefree in attitude.  As impressed, he was impressed to be an immature youngster without concrete plan of rehabilitation.  Although he admitted the current charge, no deep sense of remorse was noted on him’ and further in the report he said ‘all in all, defendant’s determination to turn over a new leaf of life without appropriate social intervention was in doubt’.  He opined in Part IX of his report ‘in view of his weak law-abiding concept and little remorse towards his misdeeds and triad association, a period of disciplinary training programme including educational and vocational training coupled with statutory supervision was recommended and considered essential for defendant to gain a deeper insight into his misdeeds’.

25.  D3 had indicated by letter that he would be pleading guilty to all the charges that he faced, and that he wished for the cases DCCC 100/2012 and DCCC 68/2012 to be dealt with at the same time.  These cases were brought up at the same time.  For ease of reference, I shall continue to refer to D3 as D3 when dealing with these other matters.

DCCC 100/2012

26.  D3 admitted three counts of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (counts 1, 3 and 5 on the indictment), one count of taking a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210, and one count of handling stolen goods, contrary to section 24(1) and (2) of the Theft Ordinance, Cap 210.  Counts 2 and 4 on the indictment were alternative charges to Counts 1 and 3.  As D3 had admitted counts 1 and 3, I thus dismissed counts 2 and 4.

27.  Facts admitted by D3 in respect of these charges disclose that PW1, the owner of a private car with registration number KW8637, had parked his car on San Shek Road, Tuen Mun at 10.20 pm on 19 June 2011.  At around 7.20 am on 20 June 2011, he returned and found his car was missing.  A report was made to the police, and he had also told his friend, PW3, that his car was missing.  At around 7.30 am on 20 June 2011, when PW3 was driving along castle Peak Road, he found the car with registration number KW8637 stopped beside him on the road.  D3 was driving the vehicle and an unknown male sat beside him.  PW3 immediately got off his vehicle and went to the nearside front passenger seat and demanded they get off the vehicle.  However they ignored him and the driver drove off in the stolen vehicle (count 1).  PW4 was the registered owner of a private car with registration number PW816.  At around 10.20 pm on 20 July 2011, he parked his car at Pat Heung in the New Territories.  At around 9 am on 21 July 2011, he found his car was missing.  The authorised user of a private car NB2220, PW5, parked the car at a car park in Tuen Mun at around 5 pm on 21 July 2011.  At around 11.50 pm on 23 July 2011, he found that his car was missing.  The CCTV of the car park in question captured  the vehicle PW816 entering the car park at 7.24 am on 21 July 2011.  At 7.44 am NB 2220 approached the gate, but then reversed backwards to let PW816 go first.  D3 alighted from the driver’s seat of PW816 and paid the parking fee for PW816 by Octopus, causing the car park barrier to be lifted and D3 drove PW816 and passed the exit, followed closely by NB2220, which drove past the car park barrier without making payment (Counts 3 and 5).  The vehicle licence of NB2220 was found inside the private car with registration PN 9048, which was in D3’s custody, and the vehicle referred to in the particulars of count 6.  On 1 August, police found PW816 in Yuen Long.  The car registration plates had been changed to PH2850, the front passenger door lock had prizing marks and the ignition key hole was found to be shattered.  PW6 was the registered owner of a private car with registration number PN9048 and D3 was a casual friend.  PW6 told D3 that his car had some mechanical defects and D3 offered to check it. PW6 met D3 at a car park in Lok Ma Chau at around 8 pm on 19 July 2011, and D3 asked if he could test drive the car.  PW6 agreed but told D3 he could only do so in the car park.  D3 then drove the car out of the car park.  When PW6 called D3 and asked, D3 told him he had to take it to a garage for repair.  PW6 did not object.  PW6 repeatedly asked D3 for the return of his car but D3 kept making excuses.  At 2.30 am on 22 July 2011, PW6 could not reach D3, nor could he locate the garage that D3 had told him about.  At 10.00 am on 22 July 2011, he sent an sms to D3 and said he would call the police if D3 failed to return his car.  D3 replied he had crashed the car and would return it after repair.  Thereafter, PW6 was unable to locate D3 (count 6).  The vehicle was found by the police in Tuen Mun on 24 July 2011 with the bonnet changed to black colour, a fresh crash mark at the rear, the original driver seat replaced by a bucket seat and the octopus card missing.  PW6 had never permitted D3 to make any alterations to his car.  A vehicle plate with registration number NC 948 was also found in the vehicle.  PW7 was the authorised driver of the private car with registration number NC 948 which he had parked at around 6.30 am on 23 July 2011 in Kowloon. At around 11 am on 24 July 2011, he found the front and rear registration number plates missing.  One of the two missing plates were found in PN 9048 in the evening of 24 July 2011, when the vehicle was in the custody of D3 (count 7).

DCCC 68/2012

28.  D3 was the 2^nd Defendant on this indictment.  For ease of reference, I shall continue to refer to him as D3.  He admitted counts 6, 8, 10 and 12 on the indictment, namely one count of theft, contrary to section 9 of the Theft ordinance, Cap 210, one count of dangerous driving, contrary to section 37 of the Road Traffic Ordinance, Cap 374, one count of driving without a valid driving licence, contrary to sections 42(1) and (4) of the Road Traffic Ordinance, Cap 374, and one count of using a motor vehicle without third party insurance, contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.  D3 denied Count 5 on the indictment.  The prosecution asked that Count 5 be left on file, and I directed that it be left on file and not be proceeded with without leave of the Court.  He had in fact admitted these charges on 10 April 2012 when he appeared before my learned brother His Honour Judge Browne.  Sentence was adjourned so that the three matters he faced could be dealt with together.

29.  Facts admitted by D3 in respect of these charges disclosed that in November 2007, a Mr. Wong Yau-lee bought a car with registration mark MR3532, which car was referred to as ‘Car C’ in the amended summary of facts, and so referred to herein.  At 10 pm on 29 August 2011, Mr Wong parked Car C at an open space at Fung Ka Wai in Tin Shui Wai, Yuen Long.  He switched on the anti-theft alarm system, leaving the car secured but unattended.  At 1.10 am on 31 August 2011, while a Mr. Wong Lam Chung was having a rest on the driver’s seat of his vehicle which was parked with the engine and lights switched off at a location near to where Car C was parked, he saw a black car with two persons on board arrive near Car C.  One of the two persons alighted and approached Car C.  He tampered with Car C, causing the hazard lights of Car C to flash.  Mr Wong Lam Chung felt suspicious and secretly made a report to the police with his mobile phone.  Moments later, police officers in two marked police vehicles arrived at the scene.  They blocked the only exit to the location, with the flashing lights and sirens of the police vehicles switched on.  The black car and Car C were driven in reverse at high speed towards the two police vehicles.  Car C collided with one of the police vehicles, damaging the latter’s left fender and bumper.  After the collision, Car C accelerated to about 80 KMH and escaped from the location successfully.  It was subsequently found abandoned about 400 meters away.  The ignition switch and the offside door lock had been prized. D3’s bloodstains were found inside the offside of the front and rear doors and the rear of Car C.  D3 had no valid driving licence in Hong Kong.  There was not in force in relation to D3 a policy of insurance or a security in respect of third party risks at the material time. D3 was arrested on 9 September 2011.  Under caution he admitted that D1 on the indictment had driven the black car to pick him up to go to the location in question.  After D1 had broken the window of Car C, D3 had ignited Car C and D3 drove Car C away.

Sentence DCCC 107/2012

30.  In respect of each defendant before me, the greatest mitigation is their frank admission to the offences.

31.  In the case of HKSAR v Chen Chun Ming, CACC 356/2000, the applicant was convicted after trial in the District Court of one count of handling stolen goods, a private car, and sentenced to imprisonment for 2 years and eight months.  The undisputed evidence was that a car owner found his car missing and less than a month later saw his car at a motor car show being offered for sale.  It was not in dispute at the trial that the applicant had driven and delivered the car to a used car dealer at the motor car show just 6 days earlier and the applicant had asked that the car be displayed for sale at the motor car show.

32.  The Court of Appeal upheld a sentence of 2 years and 8 months’ imposed by the learned trial judge.  The original starting point adopted had been 3 years’ imprisonment, but this was discounted by 4 months to reflect the applicant’s clear record and a favourable report.  In their reasons for dismissing the appeal, the Court of Appeal said :-

“14. We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime. We respectfully echo the words of Macdougall VP in R v Tang Hing Wong, CACC 476/1994. That case was concerned with two thefts of motor cars. He said at the ultimate paragraph of the judgment:

“……we think that the overall sentence of two years’ imprisonment for these offences were unduly lenient. It is a notorious fact that car theft, particularly that of luxury cars, has become increasingly prevalent. Those who commit such offences must be severely dealt with as a deterrent to others. Despite the defendant’s understandable sense of grievance we have come to the conclusion that even after taking into account his assistance to the police the overall sentence could not properly have been less than two years’ imprisonment. In our view, it would be wrong to reduce these sentences. We therefore refuse the application.”

It is to be noted that the sentence was imposed after a plea of guilty.”

33.  The four vehicles herein are obviously not brand new vehicles.  V2 is a 1997 Mitsubishi Gallant, V3 a 1998 Mitsubishi Legnum, V4 and V5 1994 Honda Integras.  All these vehicles are well over 10 years old.

34.  A total of 4 vehicles were stolen between 4 and 6 September 2011, with some degree of expertise and organisation.  These vehicles were conveyed to two garages where repairs were being done to them.  At one garage, there were false licence plates.  These are serious offences.  They cause enormous problems for the owners, and obviously these stolen cars are driven around the streets of Hong Kong by uninsured drivers, posing a risk to the public.

35.  D2 and D4 admittedly did not participate in the thefts of the vehicles in question.  It was submitted by Counsel that they were not told that the cars were stolen vehicles.  However, D2 suspected the vehicles were stolen vehicles when he saw the damaged ignition key bolts and the prized door locks.  D4 too had noticed the damaged ignition key bolts of the vehicle he helped to repair.  People who facilitate the repair of stolen vehicles are a necessary part of any car theft operation, and they are essential to such operations.

36.  The only appropriate sentence for each defendant must be an immediate custodial sentence.  I have carefully considered the circumstances of the offences and the circumstances of each defendant.

37.  D1 is sentenced as follows:

Charges 4 and 5 - 3 years’ starting on each, 1/3 discount for plea, he is sentenced to 2 years’ imprisonment

Charge 8 – 6 months’ starting, 1/3 discount for plea, he is sentenced to 4 months’ imprisonment. He is also disqualified from driving all classes of vehicles for a period of 12 months. The disqualification orders are to run concurrently.

38.  The terms of imprisonment to be served concurrently on all the charges.

39.  D1 is presently serving a term of imprisonment and I am told that the earliest discharge date is 23 October 2013.  I have considered totality.  I order that 6 months’ of the sentence I have imposed be served concurrently with the term he is currently serving and the rest be served consecutively.

40.  D2 on charge 11 – I take as a starting point 21 months’ imprisonment, discount this by one-third to reflect his plea and sentence him to 14 months’ imprisonment.

41.  D4 on charge 13 – I note what has been submitted on his behalf.  In his case, after considering all the mitigating factors put forth, in particular his background and his relatively young age, and based on the information available, I have no doubt that D4 is susceptible to peer influence and he lacks the ability to resist temptation and to observe discipline.  If he were to be left on his own, I believe there is a every likelihood that he would continue down his present track to a point of no return.  In the interests of the community and the Defendant himself, and for the prevention of crime, in my view it is better that while it might still be possible to guide him back on track and for him to become a useful member of the community that this chance should be seized and acted upon.  I agree with the reporting officer that a period of disciplinary training coupled with the statutory supervision upon release would be beneficial to D4.  Such training and supervision would not be available if a term of imprisonment were to be imposed.

42.  Having considered all the circumstances of the offence and D4 himself and, in particular his age and what the Training Centre can offer to young offenders such as D4, I am not minded to send him to prison.  I propose to accept the recommendation of the Correctional Services Department and send him to a Training Centre.  He is sentenced to the Training Centre.

43.  D3 is sentenced as follows:

Charges 1, 4 and 5 – on each charge, 3 years’ starting, 1/3 discount for plea, he is sentenced to 2 years’ imprisonment.

Charges 2 and 6 – on each charge 1 month’s imprisonment

Charges 3 and 7 – on each charge 6 months’ starting, 1/3 discount for plea, 4 months’ imprisonment. On each of these charges, he is disqualified from driving all classes of vehicles for a period of 12 months. The terms of disqualification to run concurrently.

Charge 12 – 3 years’ starting, 1/3 discount for plea, D3 is sentenced to 2 years’ imprisonment.

The sentence on all the charges are to be concurrent.

Sentence DCCC 100/2012

44.  Here a total of 4 vehicles were involved.  In respect of count 6, although the charge is one of taking a conveyance without authority, it is really no different from theft of a vehicle – he was only allowed to test drive the car in the car park, but without the permission of his friend he drove the vehicle away, and despite repeated requests, he failed to return the vehicle.  He had also altered the vehicle without the permission of his friend.  The vehicle licence of the car NB2220, the stolen vehicle in count 5, was found in this vehicle, as well as the stolen vehicle plates, NC948, the stolen goods referred to in the particulars of count 7.  The offences took place between 19 June 2011 and 24 July 2011.

45.  In respect of DCCC 100/2012, D3 is sentenced as follows:-

On each of the four counts, namely counts 1, 3, 5 and 6, I take as a starting point 3 years’ imprisonment, discount this by one-third to reflect the pleas, and sentence D3 to 2 years’ imprisonment.

On count 7, I take as a starting point 12 months’ imprisonment, discount this by one-third to reflect his plea and sentence him to 8 months’ imprisonment.

The sentences on all the charges are to be concurrent.

Sentence DCCC 68/2012

46.  Here, D3 has admitted a total of four charges, one of theft of a motor vehicle, and the others relate to the driving of that vehicle.

47.  D3 was driven to the car park in a stolen vehicle driven by his co-accused, and stole the car the subject matter of the count 6 from the car park.  It is a serious offence.  He acted in concert with another to steal the car.  Count 8 is the offence of dangerous driving.  In my view this was a serious case of dangerous driving.  D3 drove the car in reverse at a high speed towards the police vehicles that were blocking the exit of the car park.  The car collided with one of the police vehicles, causing damage to it.  This was deliberate dangerous driving – he reversed the car at high speed deliberately into the police vehicle which had on board a police officer, putting the safety of the police officer at risk.  After the collision, D3 accelerated to about 80 km/hr and successfully left the car park.

48.  D3 is sentenced as follows on these charges:-

On count 6, I take as a starting point 3 years’ imprisonment, discount this by one-third to reflect the plea of guilty, he is sentenced to 2 years’ imprisonment.

On count 8, I take 3 years’ imprisonment as a starting point, discount this by one-third to reflect his plea, and he is sentenced to 2 years’ imprisonment.

49.  I have considered the length of disqualification for this offence of dangerous driving – as I have said this was a deliberate act of dangerous driving.  The Court of Appeal in Secretary for Justice v Hung Ling Kwok, CAAR 7/2009, said at paragraph 14:-

“……we must point out that although matters relating to culpability which need to be considered when determining the term of imprisonment are more or less the same as those which need to be considered when fixing the length of the driving disqualification, according to sentencing principles, a sentence passed by the court must have actual effect. Since the period of disqualification and the term of imprisonment are to run concurrently, if the period of disqualification is of the same length as or shorter than the term of imprisonment, then the period of disqualification may be devoid of any real significance. This is because the defendant can resume driving soon after he served his sentence of imprisonment. This is against the basic principle of sentencing.”

50.  D3 is disqualified from driving all classes of vehicles for 6 years.

51.  On count 10, D3 is sentenced to 1 month’s imprisonment.

52.  On Count 12, I take 6 months’ imprisonment as a starting point, one third discount for plea, he is sentenced to 4 months’ imprisonment.  He is also disqualified from driving all classes of vehicles for 12 months.

53.  The sentences on counts 6, 10 and 12 to be concurrent, and 6 months of the sentence on count 8 to be concurrent with that of counts 6, 10 and 12 and 18 months to be consecutive.

54.  The offences in DCCC 68/2012 and DCCC 107/2012 were committed whilst he was on bail for DCCC 100/2012.  I remind myself that normally where offences are committed whilst on bail, wholly consecutive sentences should be imposed. But I must also consider the question of totality when arriving at the sentence.

55.  I order that the sentences imposed for DCCC 68/2012 and 107/2012 be served concurrently, but be served consecutively to the sentences in DCCC 100/2012.  That is a total of 5½ years imprisonment.  I am satisfied this properly reflects his criminal culpability on the three cases.  The disqualification orders are also to run concurrently in all 3 matters.

56.  D3 is also in breach of a suspended sentence of 2 months’ imprisonment imposed on 1 December 2010 in TM 3584/2010 for an offence of theft which was suspended for 30 months.  I can see no good reason not to activate this suspended sentence.  I order that it be activated and be served consecutively to the sentences I have imposed today.

57.  The effect of the disqualification order is that they are not permitted to drive in Hong Kong during the disqualification period.  If found to be driving, each will have committed an offence of driving whilst disqualified, which is viewed very seriously by the courts, and could face imprisonment.