HKSAR v. LEE CHI MING

DCCC 997/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 997 OF 2016

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REASONS FOR SENTENCE

The defendant pleaded guilty to 2 charges of "Theft" (Charges 1 and 2); 2 charges of "Using a motor vehicle without third party insurance" (Charges 3 and 4); and 1 charge of "Possession of a dangerous drug" (Charge 5).

Summary of Facts

2.  Madam CHAN (PW2) and Mr. HUI (PW1) are mother and son.  PW2 operates a trading company situated at Shek Tong Street in Hung Hom. She owns a light goods vehicle KT7966 ("the LGV"), but it is registered under the name of her brother-in-law.  PW1 drives the LGV on daily basis.  Mr. CHAU (PW4) is PW2's employee.

3.  Every day, PW1 would leave the key of the LGV at the space between the incense pot and the altar tablet placed at the entrance of PW2's company.  PW2 would pick up the key and pass it to PW4 for his use during the day.  When his work is done, PW4 would return the key to PW2, who would then leave it by the altar tablet for PW1's retrieval.

4.  About 6:00 p.m. on 27 July 2016, PW4 parked the LGV at a metered space outside No.3 Shek Tong Street and gave the key to PW2. PW2 then placed the key at the usual spot for PW1.

5.  About 8:00 in the same evening, PW1 found both the key and the LGV missing.  The Police was alerted.

6.  CCTV footage of the Canton Road Carpark captured the defendant parking the LGV at a parking space there around 10:40 a.m. on 29 July 2016.  Police officers later found the LGV at that parking space.

7.  About 2:40 p.m. on 1 August 2016, DPC 5653 (PW6) intercepted the defendant at the junction of Canton Road and Mongkok Road for enquiry. Under caution, the defendant admitted having stolen the LGV with the intention to sell it.

8.  Upon search, PW6 found on the defendant a metal box containing 3 resealable plastic bags (E1 to E3).  E1 to E3 were found to contain respectively 0.75 gramme of a solid containing 0.57 gramme of methamphetamine hydrochloride; 0.06 gramme of a solid containing methamphetamine; and 0.73 gramme of a crystalline solid containing 0.70 gramme of methamphetamine hydrochloride.

9.  Under caution, the defendant admitted that E1 to E3 were for self-consumption.

10.  In his cautioned interviews, the defendant admitted, inter alia, that he saw PW2 placing the key of the LGV by the altar tablet, and therefore took the key to steal the LGV.  He first drove the LGV to Yuen Long.  In the morning on 29 July 2016, he drove the LGV from Yuen Long and parked it at the Canton Road Carpark.  He planned to sell the LGV for $20,000 to $30,000.  He claimed that he had lost the key of the LGV.  Regarding the drugs, the defendant claimed that he purchased E3 from a stranger shortly before his arrest; and that E1 and E2 were gifts from purchasing E3.

11.  There was no valid third party insurance coverage when the defendant drove the LGV on 27 and 29 July 2016 since he was not a person authorized to drive it.

Mitigation

12.  The defendant is 39 and single.  He has 7 conviction records which included 1 "Burglary" offence and 3 drug-related offences.  The defendant obtained his driving licence in June 1996.  He has a clear traffic record, except over 10 fixed penalty tickets.  He was given a DATC Order in September 2016 for a series of drug-related offences in KCCC 2272/2016.  He is currently receiving treatment in a Drug Addiction Treatment Centre.  Prosecuting counsel Ms. POON informed me that the defendant committed the offences in the present case whilst he was on court bail for      KCCC 2272/2016.  An updated DATC Report was obtained and the defendant was considered suitable to continue with his treatment.

13.  Defence solicitor Mr. LEUNG informed me that the defendant resides with his parents (both retired).  He worked as a driver earning $13,000 per month.  In mitigation, Mr. LEUNG submitted that before the defendant stole the key of the LGV, he had a serious argument with his girlfriend and took some drugs.  He then saw someone leaving a car key outside PW2's company and decided to take it.  I was told that the defendant did not work for PW2.  Mr. LEUNG explained that since the LGV was parked near PW2's company, the defendant just tried pressing the button on the car key to see which vehicle would beep.

14.  Mr. LEUNG further submitted that the defendant is remorseful and has cooperated with the Police all along.  A letter written by the defendant was placed before me; its contents are duly noted.

Sentence

Charges 1 and 2

15.  Leaving a car key by the altar tablet outside PW2's company probably was not a wise move, but it certainly does not justify the defendant's stealing of the car key, needless to say the LGV.  Having taken drugs is not an excuse either.

16.  Stealing a motor vehicle is a serious matter.  Notwithstanding the comments in the updated DATC Report, immediate imprisonment is required for these 2 charges.  I adopt a starting point of 6 months' and 18 months' imprisonment respectively for Charges 1 and 2.  With the guilty pleas, the sentence is reduced to 4 months and 12 months respectively.  

Charges 3 and 4

17.  There is no evidence suggesting that the defendant was driving under the influence of dangerous drugs.  It was only mentioned in mitigation that he took drugs before he stole the LGV.  As I have mentioned just now, if the defendant's claim is true, it is certainly not an excuse but rather an aggravating factor.  In any event, I would only sentence the defendant based on the Summary of Facts.  By driving a stolen car, the defendant has deprived all potential victims of adequate financial protection in the event of a traffic accident.  Immediate imprisonment is required for both charges.  I adopt 3 months' imprisonment[1] as the starting point for Charges 3 and 4.  With the guilty pleas, the sentence is reduced to 2 months for each charge.

Charge 5

18.  In view of the quantity and nature of the drug involved as well as the defendant's past convictions of drug-related offences, I adopt a starting point of 12 months' imprisonment for this charge.  With the guilty pleas, the sentence is reduced to 8 months.

Overall Sentence

19.  Bearing in mind the totality principle, I consider a global starting point of 2 years' imprisonment appropriate for all 5 charges.  With the guilty pleas, the overall sentence is reduced to 16 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 1 to 4 concurrent; and

(ii) 4 months in Charge 5 consecutive to Charges 1 to 4.

20.  The defendant's driving of a stolen motor vehicle without adequate protection of insurance renders him a serious threat and danger to other road users.  Considering the seriousness of his acts, for Charges 3 and 4, I make a disqualification order of 18 months[2] each; and they shall run concurrently from the date of conviction[3].