HKSAR v. CHEUNG KA ON (also known as CHEUNG CHI MING, ANDY AND CHEUNG CHI MING)

DCCC 1128/2017

[2018] HKDC 716

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1128 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to three counts of theft, contrary to section 9 of the Theft Ordinance, Cap. 210 (charges 1, 5 & 6), one count of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap. 374 (charge 2), two 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 (charges 3 & 12), two counts of forgery of document, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap. 374 (charges 4 & 13), one count of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374 (charge 7), one count of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap. 210 (charge 8), one count of possession of dangerous drugs, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap. 134 (charge 9), one count of possession of forged identity document, contrary to section 7A(1) of the Registration of Persons Ordinance, Cap. 177 (charge 10), and one count of driving while disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374 (charge 11).

2.  The case consists of two incidents.  Incident one relates to charges 1-4 while incident two relates to charges 5-13.

Incident One

3.  Between 2 and 3 January 2017, the defendant stole motorcycle V1, the subject matter of charge 1.

4.  On 11 January 2017, the defendant, while driving V1 with his girlfriend onboard failed to stop as directed by the police.  After a chase, he was arrested.  Investigation revealed that the defendant was convicted by court in September 2015 and was subject to a disqualification order for 5 years (charges 2 & 3).

5.  Under caution, the defendant admitted stealing V1 and buying a forged vehicle number plate to replace the original one of V1.  He did not have a driving licence and did not stop at the snap check as he was afraid of being arrested.

6.  The defendant was granted bail to appear before a magistrate on 12 May 2017.  He did not appear on that day and a warrant of arrest was issued.  He was re-arrested on 14 October 2017.

Incident two

7.  Between 16 March 2017 and 14 October 2017, the defendant stole motorcycle V2, the subject matter of charge 5.  Between 26 August 2017 and 14 October 2017, the defendant stole a registration plate with registration mark TR3350, the subject matter of charge 6. 

8.  In the early hours on 14 October 2017, police conducted a snap check.  The defendant was at that time driving V2 bearing registration number TR3350.  As the defendant failed to stop as directed, he was chased.  The defendant drove V2 along Prince Edward Road East, then riding onto the pedestrian pavement towards Ning Yuen Street.  He crashed once but managed to board V2 again and fled along pedestrian pavement by wrong way driving.  He later abandoned V2 at Prince Edward Road East and fled on foot.  He was eventually arrested.

9.  Under caution, the defendant admitted stealing V2 and a vehicle number plate TR3350.  He threw away the original number plate of V2 and replaced it with the stolen number plate.

10.  Upon search of V2, the articles particularized in charge 8 were found.  Further search of V2 revealed 3 plastic bags containing a total of 1.18 grammes of methamphetamine hydrochloride and 0.59 grammes of ketamine. 

11.  At the scene, the defendant produced an acknowledgement of HKID card application in the name of Wong Tsz-kin.  Upon inquiry, the defendant admitted this document is forged.  House search was conducted and the defendant’s HKID card was found at his home.

12.  In subsequent interviews, the defendant made admissions in respect of all of charges 5-13.

Mitigation

13.  The defendant is aged 45 and single.  He has a girlfriend.  Prior to the arrest, he was working as a decoration worker. He has 42 previous conviction records, including 8 for using a motor vehicle without third party risks, 3 for taking and attempt to take conveyance without authority, 2 for forgery of document, 2 for possession of dangerous drugs, 6 for driving without a licence, 8 for theft, 1 for going equipped for stealing, 2 for dangerous driving and 3 for driving while disqualified.  His last conviction in 2015 was a case similar to the present case.

14.  In mitigation, it was rightly submitted that the only mitigation is the defendant’s guilty plea.  It was further submitted that the defendant was remorseful and determined to quit his drug taking habit.  The court was urged to consider the totality principle when sentencing.  The court was also provided with the reasons for sentence in respect of the defendant’s last conviction in DCCC 378/2015.

Sentence

15.  There is no sentencing guideline in respect of the offences in question.  When considering sentence, I bear in mind that the defendant committed the offences in respect of incident two while he was on bail for offences in respect of incident one.  This is an aggravating feature.  Further, the defendant has previous conviction records of similar offences in the past.  Despite he has been imprisoned and also disqualified from driving or obtaining driving licence for substantial periods in respect of the past offences, the defendant still committed the offences in the present case.  It clearly shows the defendant was not deterred, he deliberately breached the law and selfishly disregarded the safety of other road users solely for his interest in driving motorcycles.    

16.  The other aggravating features in this case is that the defendant had never held a driving licence, that his driving was not covered by insurance and thereby depriving all potential victims of adequate financial protection, that he tried to avoid detection by changing the number plates of V1 and V2.  He drove dangerously in order to avoid apprehension.  His act constitutes a flagrant breach of a court order.  

17.  As stated in the reasons for sentence in DCCC 378/2015, theft of motorcycle is a serious offence which may cause substantial financial loss and considerable inconvenience to the owner.  It was stated that a starting point of 2 years would be appropriate (see HKSAR v So Pak Lun, CACC 276/2013).  Given the defendant’s previous convictions for theft and taking conveyance without authority, I consider an enhancement is justified.  Thus, for charge 1, the starting point is 30 months while the starting point for charge 5 is further enhanced by 3 months to 33 months for the aggravating feature of commission of the offence while on bail.

18.  For theft of the vehicle registration plate, charge 6, the starting point is 9 months and enhanced by 3 months for the fact that the defendant committed this offence while on bail. 

19.  For the offence of driving without a valid licence, charge 2, this is the defendant’s 7^th conviction. The maximum sentence for second and subsequent conviction is 6 months’ imprisonment.  I will adopt 6 months as the starting point.

20.  For the offence of using a motor vehicle without third party insurance, charges 3 & 12, this is the defendant’s 8^th conviction.  The maximum sentence for this offence is 12 months’ imprisonment.  I will adopt 12 months as the starting point for charges 3 and 12.

21.  For the offence of forgery of document, charges 4 & 13, this is the defendant’s 3^rd conviction.  The maximum sentence is 3 years’ imprisonment.  For charge 4, the starting point is 9 months.  For charge 13, the starting point is enhanced by 3 months to 12 months.

22.  For the offence of dangerous driving, there is no evidence of jumping red lights or speeding.  It was confirmed by the prosecution that the whole course of dangerous driving lasted only about 2-3 minutes with no damage or injury caused.  Nevertheless, the fact that the defendant was driving while disqualified and without third party insurance, that the vehicle was stolen are aggravating factors justifying enhancement (see R v Cooksley and Others [2004] 1 Cr App R (S) 1 and Secretary for Justice v Poon Wing Kay & Anor [2007] 1 HKC 289).  Further, this defendant has two previous convictions for dangerous driving.  His last conviction for dangerous driving was in 2009, for which he was sentenced to 2 years’ imprisonment. He committed this offence while on bail for other offences.  In the circumstances, I will adopt 2 years and 3 months as the starting point for charge 7.

23.  For charge 8, given the amount of tools involved, I consider the appropriate starting point to be 9 months and enhanced by 3 months for the aggravating feature that it was committed while on bail for other offences.

24.  Charge 9 relates to possession of ICE and ketamine.  Although the amount involved is not high, I cannot ignore the fact that two types of drugs were involved and there is a latent risk that part of the drugs may be subject to commercial supply or social consumption by others (see HKSAR v Mok Cho Tik [2001] 1 HKC 261).  In the circumstances, I consider the appropriate starting point to be 10 months and enhanced by 1 months for the latent risk.  It is further enhanced by 1 months for the fact that this offence was committed while the defendant was on bail.  

25.  For the offence of possession of forged identity document, charge 10, I note that the defendant produced that document to the police in order to conceal his true identity.  I consider the appropriate starting point to be 12 months.  Given this offence was committed while he was on bail, the starting point is enhanced by 3 months for this aggravating feature.

26.  For the offence of driving while disqualified, charge 11, this is the defendant’s 3^rd conviction. His act is a flagrant breach of the disqualification order.  I will adopt 12 months as the starting point. 

27.  Given the defendant’s guilty plea, all sentences are to be reduced by 1/3 as follows:

Charge 1: 30 months, reduced to 20 months

Charge 2: 6 months, reduced to 4 months

Charge 3: 12 months, reduced to 8 months

Charge 4: 9 months, reduced to 6 months

Charge 5: 33 months, reduced to 22 months

Charge 6: 12 months, reduced to 8 months

Charge 7: 27 months, reduced to 18 months

Charge 8: 12 months, reduced to 8 months

Charge 9: 12 months, reduced to 8 months

Charge 10: 15 months, reduced to 10 months

Charge 11: 12 months, reduced to 8 months

Charge 12: 12 months, reduced to 8 months

Charge 13: 12 months, reduced to 8 months

Totality of sentences

28.  Charges 1-4 are subject matter of incident one.  I consider the overall sentence after plea should be 24 months’ imprisonment.  I therefore order charges 2 and 3 to run concurrently, 2 months of the combined sentence be served consecutive to charge 1 and 2 months of charge 4 to run consecutive to charges 1-3.

29.  Charges 5-13 are subject matter of incident two.  I consider the overall sentence after plea should be 36 months’ imprisonment.  To achieve this, I order the sentences for charges 5, 6 and 8 to run concurrently.  Sentence for charges 7, 11 and 12 also to run concurrently and 6 months from the combined sentence to run consecutive to charges 5, 6 and 8.  4 months from the sentence for charge 9 and 2 months from each of the sentences for charges 10 and 13 are to run consecutive to the sentences for charges 5-8 and 11-12.  

30.  Offences covered by the two incidents are separate and distinct and, in theory, their sentences should run consecutive with each other.  Taking into consideration the totality principle, I consider a total sentence of 42 months is sufficient to reflect his criminality.  I therefore order 6 months from the total sentence of charges 1-4 to run consecutive to the total sentence for charges 5-13.  

Disqualification

31.  Disqualification is mandatory for charges 3, 7, 11 and 12 and discretionary for theft of vehicle for charges 1 and 5. Such order is “forward-looking and preventive”.  In considering the appropriate length of disqualification, the length of imprisonment should be taken into account, otherwise the order may serve no real purpose. 

32.  The defendant is currently subject to a 5-year disqualification order which will only end in September 2020.  In the light of the total term of imprisonment that he is going to serve and that the period of disqualification for the present case must be over and above the current one to make it meaningful, I order a 7-year disqualification in respect of all classes of vehicle for charges 1 and 5 pursuant to section 69(1)(c) and (2)(b) of the Road Traffic Ordinance, Cap. 374. 

33.  For charges 3 and 12, I order a 3-year disqualification in respect of all classes of vehicles respectively pursuant to section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.

34.  For charge 7, I order a 3-year disqualification in respect of all classes of vehicles.  As the defendant does not hold any valid driving licence, I do not intend to make an order for the defendant to complete a driving improvement course pursuant to section 72A of the Road Traffic Ordinance, Cap. 374.

35.  For charge 11, as this is the defendant’s 3^rd conviction, I order a 3-year disqualification in respect of all classes of vehicle.  Such period of disqualification should run consecutive to other periods of disqualification ordered for charges 1 and 5 pursuant to section 44(3) of the Road Traffic Ordinance, Cap. 374 and charges 3 and 12 pursuant to section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance as read with section 44(3) of the Road Traffic Ordinance.

36.  To sum up, the disqualification order for charges 1, 3, 5, 7 and 12 are to run concurrently from date of conviction while the disqualification order for charge 11 is to run consecutive to these disqualification order, making a total period of disqualification for 10 years.