HKSAR v. TSE KA FAI, FRANKIE

DCCC830/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 830 OF 2010

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Reasons for Sentence

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1.  Defendant, you have pleaded not guilty to a charge of conspiracy to steal contrary to Section 9 of the Theft Ordinance, Cap.210 and sections 159A and 159C of the Crimes Ordinance, Cap.200. However, you pleaded guilty to the alternative charge of handling stolen goods contrary to sections 24(1) and (2) of the Theft Ordinance, Cap.210.

2.  Additionally you admitted 4 offences of driving whilst disqualified contrary to section 41(b) of the Road Traffic Ordinance, Cap.374; 4 offences of using a motor vehicle without insurance contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 and a single offence of failing to surrender to custody without reasonable cause, contrary to sections 9L(1) and (3) of the Criminal Procedure Ordinance, Cap.221.

3.  You admitted the brief facts of the offences to which you have pleaded guilty and I convicted you.  In respect of the conspiracy charge, that was ordered to be left on file not to be proceeded with without the leave of this court or the Court of Appeal. 

4.  Briefly the facts were as follows.  Four Toyota Hiace vans had been reported missing between 1 May 2010 and 4 May 2010.  They were subsequently located, three being intact and one dismantled.  In each case the rear door locks had been tampered with and damaged.  PW1 was the driver of vehicle 1 with a market value of $20,000. He parked at the parking space in Tai Yuen Tsuen, Tai Po, at 1810 hours on 30 April 2010.  When he returned at 9 am on 1 May it was gone.  That afternoon he received several calls from unknown persons asking if he had any vehicles for sale.  On 2 May 2010 he identified and inspected vehicle 1 which had been recovered.  The rear door lock had been tampered with. 

5.  PW2, a vegetable stallholder, had bought the vehicle 2.  At about 9 pm on 3 May 2010 he parked it at Yuen Tun Circuit, Tsuen Wan.  On his return at 4 am the next morning, it was missing.  Later on 3 May 2010 he identified vehicle 2 but could not use his key to open the rear door which seemed to have been tampered with. 

6.  PW3 owned vehicle 3 which he bought for $70,000 in 2005.  At about 10 pm on 3 May 2010 he parked it at a meter on Heung Wo Street at Tsuen Wan.  He returned at 6.30 am on 4 May to find it gone.  He informed the police.  On 10 May 2010 he was invited to ID the vehicle parts at Pat Heung Yuen Long as it was suspected vehicle 3 had been dismantled.  He positively identified the doors, engine, vehicle accessories and body parts of the vehicle.  The engine number found matched that of vehicle 3.  The rear door lock of vehicle 3 was broken and damaged but had not yet been dismantled. 

7.  PW4, a grocery stall owner, bought vehicle 4 for $170,000.  AT 10.15 pm on 3 May 2010 he parked it at a meter on Sha Tsui Road, Tsuen Wan.  On his return he found it missing.  On 10 May 2010 PW4 identified vehicle 4.  He found the rear door lock to be damaged.

8.  PW5 received a call from a Chinese male who claimed to have a Toyota Hiace for sale on 1 May 2010. He ran a business trading second-hand vehicles in Yuen Long.  He met the Chinese male at Chung Shun car park in Yuen Long.  Vehicle 1 was parked there and he agreed to buy it for $11,000.He paid cash and D4 left.  The police received vehicle 2 at Chung Shun on 4 May 2010. 

9.  You were arrested and admitted under caution knowing D1 and D2 for a number of years.  You admitted that you had driven vehicle 1 from Fanling to Chung Shun on 1 May using the keys provided by D1.  You further admitted on three occasions driving vehicles 2, 3 and 4 on D1’s instructions.  D1 provided the key.  The first occasion being 4 May, you drove vehicle 2 to Chung Shun and gave the keys to D1.  Afterwards you followed D1 and D2 to a parking lot in Tsuen Wan to pick up vehicle 3.  You drove it to Kam Tin, Pat Heung, where you passed it to D5 on 4 May. 

10.  Finally you drove vehicle 4 to the Wilson Car Park at Sai Ching Street, Yuen Long.  You took police to the car park and identified it.  You admitted that prior to receipt of the key of V4 from D1 you had learned that vehicle 4 was stolen.  That is Charge 15.  You had been subject to 3 years’ disqualification under order of court dated 31 January 2008, hence Charges 3 to 10. 

11.  On 8 October 2010 you were granted bail but failed to answer before the District Court on 24 January 2011 without reasonable excuse.  You admitted 20 appearances before the court for 41 offences mainly relating to dishonesty and road traffic offences. That is on the criminal record list.  There is also a road traffic record list which contains further offences.  The prosecution confirm that you are in fact disqualified until 2023; that is, for 12 years.  Also, unless I am mistaken, prior to being able to drive you are required to take a further driving test. Also your earliest date of release from the sentence imposed in June 2011 in Kowloon City Magistrates Court is 27 September of next year.  These details are of importance when it comes to the sentence. 

12.  On your behalf Mr Lee entered mitigation.  He told me that you are 43 years of age and cohabiting with a lady with whom you have three children.  Your mother is 73 and your father deceased.  Item 19 of the criminal record led to a sentence of 22½ months’ imprisonment and a driving disqualification of 12 years and was part of the same investigation.  Very reasonably and correctly, Mr Lee therefore submitted that I should apply the principle of totality when sentencing you. 

13.  In respect of this matter, Mr Lee submitted you played a minor role, taking orders from D1 and D2.  Charge 15, being the handling of stolen goods, applied only to vehicle 4. This was the vehicle that you became aware of being stolen; also that you were very co-operative with police in this investigation.  A letter written by yourself was produced to court. 

14.  I am told also that the reason that these offences took place was caused by the death of your father to the extent that the family needed money for medical and funeral expenses and also your mother needed support and company after the death of your father. 

15.  I turn now to the sentence.  I think it will come as no surprise to anyone when I say this is a very complicated sentence.  It is complicated by your extraordinary record and the number of and complexity of the offences that you have pleaded guilty to. 

16.  You are convicted on your own plea of one offence which was Charge 15 of handling stolen goods and that was vehicle 4; 4 offences of driving whilst disqualified being Charges 3, 5, 7 and 9; 4 charges of using a motor vehicle without insurance being Charges 4, 6, 8 and 10 and one charge of failing to surrender into custody which is Charge 16.  As I have already said, you are imprisoned until 27 September 2012.  That is in fact your earliest date of release.  You are disqualified until June 2023 and before you can drive again you are required to take a further driving test. 

17.  I do accept that item 19 of the criminal record does bear some relationship to the present offences.  Your criminal record is extremely complicated and long.  Taking both the criminal record and the road traffic record, there are 68 separate offences.  I do accept that your role in the dishonest dealing with these vehicles was not that of the prime mover, that it involved but one vehicle under Charge 15 and the organisation and direction of the offences lay with others rather than yourself.  In this scheme you were a foot soldier, not an officer.

18.  I do also accept that there was financial difficulty within the family resulting from the death of your father to the extent that medical and funeral expenses needed to be paid and that your mother needed some support.  Having said that, these offences were clearly and demonstrably deliberate.  You cannot turn to crime and fail to obey court orders simply to solve problems within the family. 

19.  Whilst I am not sentencing you on your record I have to have some regard to that appalling record.  I also accept that you were very co-operative with the police upon arrest and that you have helped and detailed your role.  I note that the period of disqualification that you are serving is a very long period.  It may be that it is unconscionably long.  However, looking at the offences I have to say it was deserved and the magistrate made a very sensible order in ordering you to retake your driving test.  It is not my intention to add to the burden of that disqualification or at least I will have to some extent because of the framing of the legislation which requires that each disqualification be in addition.  I do reflect, of course, that you will be approaching 60 by time you are able to drive again.  However, there is nothing I can do about that.

20.  I have applied the principle of totality and I will explain how that was applied when I impose these rather complicated sentences. 

21.  I am going to start with Charge 15.  I have taken into account all the facts and mitigation and the contents of the letter that you wrote to me.  I take as a starting point 21 months’ imprisonment reduced to 14 for your plea of guilty.  Charge 16 is the failure to answer bail without reasonable excuse.  I take as a starting point 3 months’ imprisonment reduced to 2 consecutive.  I have mitigated that starting point because of the death of your father.  Charges 3, 5, 7 and 9 are the four offences of driving whilst disqualified; serious offences.  I therefore take on each a starting point of 9 months’ imprisonment reduced to 6 months for your plea of guilty.  Applying the principle of totality they will be served concurrent to each other but consecutive to the previous sentences. 

22.  On each of those offences you will be disqualified for a period of 3 years.  They have to be consecutive to each other, as I understand it.  But as I understand it they can be concurrent to the present and they will be concurrent with your existing disqualification; 12 years disqualification.  The effect of that is the disqualification for 12 years runs from today and increases the disqualification period, according to my calculation, by about 5 months.  I will explain that to you further.

23.  Charges 4, 6, 8 and 10, driving without insurance, these flow of course from your driving whilst disqualified because one cannot be insured if one is driving whilst disqualified.  On each I take a starting point of 6 months’ imprisonment reduced to 4 for your plea of guilty.  Again, bearing in mind my previous remarks and applying the principle of totality, they will be served concurrent to each other and concurrent to the overall sentence of imprisonment. Additionally you are required to be disqualified.  You will be disqualified for a period of 3 years on each.  Under the legislation that disqualification runs from today; so therefore the legislation as well as my order makes it concurrent to each other and concurrent with the existing disqualification. 

24.  Now, just to avoid any confusion I am also making an order that you retake your driving test prior to driving just in case that order is superseded by my increasing the disqualification.  I do that perhaps out of an excess of caution.  I am required to explain to you the meaning of disqualification although I am sure this has been done on many occasions.  It means for the next 12 years you are not permitted to drive any motor vehicle on any road or any place to which the public has access including car parks.  If you do so you will commit a very serious offence which will almost inevitably result in further imprisonment. Then prior to going back on the road you are required to take a driving test. 

25.  To sum up, the overall imprisonment therefore, as I understand it, is 22 months.  That will be consecutive to your existing sentence.  I have already taken into account in setting your sentences the totality principle.  I know this has been complicated and I thank the counsel for their assistance.