HKSAR v. NG MAN LUNG AND ANOTHER

DCCC 473/2017

[2018] HKDC 300

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 473 OF 2017

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Reasons for Sentence

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1.  D1 pleaded guilty to the following charges: handling stolen goods, criminal damage and resisting a police officer in the due execution of his duty[1], being charges 1, 2 and 3 on the charge sheet.

2.  D2 pleaded guilty to the same charge 2 of criminal damage.

3.  Another charge of resisting a police officer against D1 was ordered to be kept on file, not to be proceeded with against D1 without the leave of court.

4.  Charge 1 against D2 was ordered to be kept on file, not to be proceeded with against D2 without the leave of court.

Summary of facts

5.  At around 7pm on 23^rd February 2017, Mr Wong parked the company light goods vehicle on On Sum Street in Shatin after work. The vehicle was later stolen (“the vehicle”).

6.  At around 2:18am the following day, the stolen vehicle was seen at Luen Sang Farm (“the farm”) at number 21B Kwu Tung South Road in the New Territories.

7.  Police officers lying in ambush there saw the vehicle being driven up to the main gate of the farm, with its rear facing the gate. The driver of the vehicle then quickly reversed and crashed it into the gate, denting it severely.

8.  D1, the driver, and D2, the front seat passenger, immediately got out of the vehicle and started to run away, whereupon the police officers in ambush revealed themselves and chased after them.

9.  In the course of the chase, PC 10832 yelled at D1 “Police! Stand right there!” and attempted to intercept D1 by grabbing his upper body.

10.  When PC 10832 was about to declare arrest, D1 resisted and used both his hands to push the police officer off.

11.  PC 10832 grabbed D1 again and shouted “Police! Don’t move!”, but D1 kept struggling and pushed the officer to the ground. The right side of the officer’s face hit the ground and suffered injuries.

12.  D1 was eventually subdued and restrained with handcuffs by other police officers. At the time of interception, D1 was wearing a pair of gloves.

13.  While PC 10832 was chasing D1, another police officer went after D2 and was able to immediately restrain D2 on the ground with handcuffs. Upon search, a pair of gloves, 2 face masks, a screwdriver, a spanner and some cash were found in D2’s backpack.

14.  The cost of repair of the main gate of the farm is around $30,000.

15.  PC 10832 was sent to hospital after the incident. He was found to suffer from abrasion, swelling and tenderness to the right side of his head and face, as well as laceration to the same part of his head.

16.  There was swelling and tenderness in his right hand, bruising around his right eye and facial injuries requiring 2 stitches and bone fracture beneath.

17.  In the subsequent video recorded interview, D1 claimed that he agreed to use the vehicle to hit the main gate for $10,000.

18.  D1 wanted someone to accompany him and so he called D2 to go with him.

19.  D1 took over the vehicle from an unknown man at around 1am on 24^th February in Shatin and drove to pick up D2 before driving to the farm.

20.  D1drove the vehicle into the main gate and told D2 to leave the vehicle immediately after the crash.

21.  D1 said that had he known that the people who suddenly dashed out towards them were police officers, he would not have tried to escape. He ran because he thought they were people from the farm.

22.  D1 admitted that he had dishonestly received the vehicle, knowing or believing it to be stolen goods, together with another person.

23.  D1 and D2 admitted that they had together, without lawful excuse damaged the main gate of the farm, intending to or being reckless as to whether it was so damaged.

Previous convictions

24.  D1 has one spent conviction for assault occasioning actual bodily harm. The conviction was recorded 13 years ago in 2005 when the defendant was 16 years old. He was sentenced to 12 months’ probation and ordered to compensate the victim $500.

25.  Given the nature of the previous conviction and the amount of time that had lapsed, I do not find D1 a repeated offender and will not enhance his sentence on this basis.

26.  D2 has 13 convictions from 7 court appearances.

27.  D2’s last conviction was dated 12^th April 2011 when he was sentenced to 14 months’ imprisonment at the District Court for one charge of theft. The is no previous conviction for criminal damage.

28.  Although D2 does have quite an appalling record up to and including 2005, his last conviction was more than 6 years ago. I find that enough time had lapsed between his last conviction and his commission of the present offence that he should not be regarded as a repeated offender any more. I will not enhance his sentence on this basis.  

D1’s mitigation

29.  The defendant is 29. He came to Hong Kong from mainland China when he was 3. He was educated here up to Form 1 level.

30.  He got married to his former colleague in 2015. Together they have 2 children now aged 2 years old and 8 months.

31.  The defendant, his wife, father, younger brother and pastor all wrote to the court to seek leniency. The gist of the letters is that D1 is a good person, a responsible son, husband and brother.

32.  Mr Khosa for the defendant told the court how the defendant had changed since his first conviction when he was 16 and had become the responsible person he is now.

33.  The defendant took up the responsibility of looking after his parents when they lost their earning abilities. He also helped his younger brother out when he was in university.

34.  The financial strain that the defendant was under is the main reason he agreed to commit the present offence for $10,000.

35.  The defendant was working as a private vehicle driver, earning $24,000 per month. That income would be comfortable for one family, but when spread out for three, it became very thin. The defendant was barely making ends meet.

36.  The defendant also took out a loan of $240,000 from Hang Seng Bank in 2015. He used the money to purchase his own vehicle, thinking to run his own transportation business. There is a monthly instalment payment of $5,000. The business did not work out and he ran into a loss. In the end he had to sell the vehicle and became a private vehicle driver in June 2016.

37.  So, on top of looking after the families, the defendant had also to repay the loan. He juggled his financial problems alone as he did not want to trouble his family members. The defendant’s wife did sense that something was wrong when she found hidden alcoholic drinks at home, since the defendant had never been a drinker.

38.  The financial pressure coupled with the offer of $10,000 drove the defendant into committing the present offences.

39.  Mr Khosa reminded the court that the defendant had made frank admissions upon his apprehension. The promised $10,000 was never received by the defendant.

40.  Mr Khosa submits that the defendant was being exploited. He was not party to the dispute between ‘Ah Chi’ (the offeror of $10,000) and the farm. The crashing into the gate took place at a remote area and in the early hours. There was almost no risk of injury to other people.

41.  The handling of the stolen vehicle was part and parcel of the act to damage the gate. The defendant took over the vehicle merely as a tool.

42.  Mr Khosa refers to the case of HKSAR v Rana Wasif Saleem, CACC 15/2014 to give this court a general idea of what the appropriate sentence would be for a criminal damage case.

43.  There the damage was extensive and involved 4 people in a planned action. The physical violence was found to be significant by the use of crowbars to damage a light goods vehicle. The starting point of 30 months’ imprisonment was not disturbed on appeal.

44.  Mr Khosa submits that the circumstances of the commission of the offence of criminal damage in that case is more serious than our present case and that the court should make an appropriate adjustment to the sentence on that basis.

45.  As for the handling charge, Mr Khosa submits that it goes hand in hand with the criminal damage charge and should be regarded as part of the same transaction.

46.  In relation to the resisting charge, Mr Khosa submits that the act of resisting was just one forceful push on the police officer. It was unfortunate that he had fallen badly and had suffered the injuries. The defendant is very apologetic and had asked to apologize to the officer concerned.

D2’s mitigation

47.  The defendant is 36, married with a 14-month old child. He is sorry for causing trouble to the victim and his own family.

48.  The defendant was at first detained after his arrest. Once he was granted bail on 14^th September 2017, he immediately resumed work as a private vehicle driver.

49.  The defendant’s daughter was born in January 2017, which was 1 month before the defendant’s arrest and remand in February. Because of the defendant’s incarceration, his wife had to apply for CSSA. Yet, as soon as the defendant was granted bail, he returned to his job and chose not to rely on CSSA anymore.

50.  The defendant’s wife wrote in mitigation, pleading for leniency. Mrs Chan tells the court how the defendant would always make time for their child and would help out with chores at home no matter how tired he was.

51.  Ms Lau for the defendant points out that the defendant did not have the information that D1 had. There is no evidence that D2 was to share in any of the money promised to D1, or that he even knew about the reward.

52.  The defendant is willing to compensate by paying $2,000 per month for the cost of repair to the gate.

53.  Ms Lau further pointed out that the incident happened in a remote area where no one was residing. The garage owner did not find out about the incident until 5am when they were informed by the police. There is no evidence that D2 knew about the circumstances behind the crashing of the gate.

54.  Ms Lau refers to 3 Magistracy Appeals to suggest that in cases with similar circumstances, the Magistracy had dealt with the defendants by way of fines or a very short term of imprisonment of 3 to 4 months’ after plea.

55.  In the case of HKSAR v Yu Fung, HCMA 290/2015, the appellant was the neighbour of the victim. The appellant kicked the iron gate of his neighbour’s home, causing the iron grill to be bent. Replacement cost was $2,600.

56.  The appellant was convicted after trial and fined $2,000 with a compensation order of $2,600.

57.  The facts in Yu Fung are different to the present case. The appellant acted alone and probably on impulse. The damage was done by mere kicking. This case must be distinguished.

58.  In HKSAR v Chu Ma Lai and another, HCMA 1107/2007, the two appellants each used a long shaped object to damage the windshield and body of a vehicle that the witnesses were in. The broken glass injured one of the witnesses. The two appellants were convicted of one joint charge of criminal damage and one joint charge of wounding[2].

59.  The attack was related to an incident earlier in the same night when the witnesses’ party had an argument with another party inside a restaurant. The appellants were in a vehicle that followed the witnesses vehicle for a while after they had seemingly made peace and had left the restaurant. The vehicle eventually stopped in front of the witnesses’ vehicle and the attack took place.

60.  The appeals were only against conviction, which was unsuccessful. The appellants were ordered to serve the 3 months’ imprisonment imposed by the learned Magistrate. It would appear that it was a concurrent sentence for both charges. There was no discussion on the appropriateness of the sentences.

61.  Again, I find the facts very different from the present case. Similar to the case of Yu Fung, the criminal damage happened shortly after the dispute between the parties. There was use of long objects as opposed to a motor vehicle to cause the damage. That case would obviously have been far more serious had the vehicle that was blocking the witnesses been used to ram into them instead.

62.  In the case of HKSAR v Che Wing Yin, HCMA 598/2011, the appellant pleaded guilty to 3 charges of criminal damage and one charge of theft and was sentenced to a total of 7 months’ imprisonment.

63.  There the appellant, together with an accomplice, used bricks to break open the glass door of a hair salon. The appellant also broke a display shelf inside by throwing another object at it. He then took a tub of hair wax from the shelf.

64.  4 days later, the appellant, again together with an accomplice, wearing a cap, mask and gloves entered the same salon. One of them used a hammer to break two mirrors inside, while the rest messed up some chairs.

65.  The appellant was 30 years old with 10 previous convictions including theft, robbery, assault, possession of dangerous drugs, possession of offensive weapon and triad related offences. The learned Magistrate adopted a starting point of 6 months’ imprisonment for each charge. 3 months of the sentence for the offence committed on the second visit to the salon was ordered to be served consecutively to the sentences for the offences committed in the first visit, resulting in a sentence of 9 months’ imprisonment. Since the appellant was being dealt with in another two cases, there were further adjustments upon application of the totality principle. The appeal against sentence was dismissed.

66.  Only bricks and a hammer were used. This differed significantly to the use of a motor vehicle to cause damage. I find that this case must also be distinguished.

Sentencing considerations

67.  The maximum sentences on conviction upon indictment for handling stolen goods, criminal damage and resisting a police officer are, respectively, imprisonment of 14 years, 10 years and 2 years. 

D1

Charge 1: handling

68.  The defendant was never interested in the stolen vehicle. He was not selling the vehicle on for profit. His was a technical handling. The sentence imposed on this offence will be subsumed in the sentence for the criminal damage charge.

69.  Nevertheless, I find that an appropriate starting point for this offence is 15 months’ imprisonment.

70.  There are no aggravating factors in the circumstances for the commission of this offence.

71.  The only mitigating factor is the defendant’s timely plea of guilty, for which he is granted the full one-third discount. The resulting sentence is 10 months’ imprisonment.

Charge 2: criminal damage

72.  The defendant committed this offence with another person. The commission of the offence was planned. He agreed to commit the offence for a reward.

73.  The use of a motor vehicle to crash into the gate is a serious matter. Although it was in a remote area and it was deep into the night when the crash took place, there is always the possibility of someone being there and injuries might result.

74.  But there was in fact no one injured. There was only one act of crashing into the gate rather than repeated acts.

75.  I am mindful of the sentence in the case of HKSAR v Rana Wasif Saleem referred to by Mr Khosa, and that the facts in that case are more serious than the present case.

76.  I find that an appropriate starting point is that of 2 years’ imprisonment.

77.  There are no aggravating factors in the defendant’s commission of this offence.

78.  Although the defendant has my respect for being a responsible son, father, brother and husband, I do not find that his personal circumstances are such that would warrant a separate discount in sentence.

79.  The only mitigating factor is his timely plea of guilty, for which he is granted the full one-third discount, leading to a sentence of 16 months’ imprisonment.

Charge 3: resisting a police officer

80.  According to the summary of facts, to which the defendant had admitted, the victim police officer had yelled that he was a police officer as soon as he came out of ambush. He revealed his police identity again before he was about to arrest the defendant. Yet the defendant chose to continue to resist.

81.  Bearing in mind the injuries suffered by the police officer, I adopt a starting point of 6 months’ imprisonment.

82.  This sentence is discounted to 4 months’ imprisonmentupon the defendant’s guilty plea.

Totality

83.  As mentioned above, I find that the handling of the stolen vehicle by the defendant an act integral to his commission of the criminal damage offence. The defendant’s handling was solely for the purpose of crashing the vehicle into the gate.

84.  I order that the sentences in charge 1 and 2 be served wholly concurrently.

85.  As for the offence of resisting a police officer, I find first of all that the court must emphasize the need to protect police officers in the due execution of their duties. Anyone who chooses to resist a police officer, and to cause the officer to suffer injuries must bear the full consequences of their action.

86.  Taking a step back, I order that 2 months of the sentence in charge 3 be served consecutively to the sentence in charges 1 and 2, the balance to be served concurrently.

87.  The final total sentence for D1 is, therefore, 18 months’ imprisonment.

D2: criminal damage

88.  The defendant was not the driver of the vehicle that caused the damage. He was there merely at the request of D1, to keep him company.

89.  Unlike D1, there is no evidence that D2 agreed to keep D1 company for a reward. There is no evidence that D2 was even aware of the money that D1 was promised.

90.  It was submitted by Ms Lau that the screwdriver, spanner, masks found inside the backpack that D2 was carrying were his work tools. I am skeptical of this submission.

91.  According to Ms Lau, D2 got a phone call from D1 who told the defendant that he was in a bad mood and wanted D2 to “go for a ride with him”.

92.  According to the reference letter in D2’s mitigation bundle, at Tab E, he was working for Asia Pacific Trade & Expo City (HK) Limited up to 22^nd February 2017, which was 2 days before he was asked to go for the ride. 

93.  The crash happened at around 2:18am.

94.  D2 would, therefore, not be under employment when D1 called to ask him to go for a ride. There would have been no reason for him to bring along his work tools at that time of the night.

95.  It is not for me to speculate as to why D2 had those tools on him. It is not the only reasonable inference that he had those tools on him to be used in the commission of the criminal damage offence. I simply cannot accept that he had those tools on him for work related purpose.

96.  Bearing in mind D2’s lesser role, I will adopt a starting point of 19 months’ imprisonment.

97.  I will further reduce this sentence by 1 month for the charity he had shown to those less fortunate than him over the years through his donations.

98.  The only other mitigating factor is the defendant’s timely plea of guilty, for which he is granted the full one-third discount.

99.  The final sentence for D2 on charge 2 is 12 months’ imprisonment.

No compensation order

100.  Given the financial situation of D1 and D2 and their families, I find that to impose a compensation order on them could result in hardship that their families may not be able to deal with given that both the breadwinners will be imprisoned for a relatively long time. I will, therefore, not impose such an order.