HKSAR v. MUKUNGU COLLINS KITYO AND ANOTHER

DCCC 325/2021

[2022] HKDC 1088

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 325 OF 2021

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  D1 and D2 appeared before me faced with a Charge Sheet containing the following charges.

2.  Charge 1 against D1 & D2 jointly is Theft, contrary to section 9 of the Theft Ordinance, Cap 210.  Particulars are that D1 & D2, on 28 November 2020, outside No 320 Reclamation Street, Mong Kok, Kowloon, in Hong Kong, stole one motor cycle with chassis number RGTHY150JGT010028, property belonging to Wu Chuanyi.

3.  Charge 2 against D1 only is Dangerous Driving, contrary to section 37(1)  of the Road Traffic Ordinance, Cap 374.  Particulars are that D1, on 28 November 2020, near the junction of Lai Chi Kok Road and Tonkin Street, Sham Shui Po, Kowloon, in Hong Kong, drove a private car with chassis number E51-028370, on a road dangerously.

4.  Charge 3 against D1 only is 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.  Particulars are that D1, on 28 November 2020, in Hong Kong, used a motor vehicle, namely a private car with chassis number E51-028370 on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles (Third Party Risks)  Ordinance, Cap 272.

5.  Charge 4 against D1 & D2 jointly is Going equipped for stealing, contrary to section 27(1)  of the Theft Ordinance, Cap 210.  Particulars are that D1 & D2, on 28 November 2020, in a private car with chassis number E51-028370, near the junction of Lai Chi Kok Road and Tonkin Street, Sham Shui Po, Kowloon, in Hong Kong, not being at their place of abode, had with them articles, namely two pairs of cutting pliers and two pairs of labourer’s gloves, for use in the course of or in connection with theft.

6.  Charge 5 against D1 only is Forgery of a document, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374.  Particulars are that D1, on 28 November 2020, in Hong Kong, with intent to deceive, used one trade plate numbered T12247 on a motor vehicle, namely, a private car with chassis number E51-028370.

7.  Charge 6 against D1 only is Forgery of a document, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374.  Particulars are that D1, on 28 November 2020, in Hong Kong, with intent to deceive, used one trade plate numbered T12389 on a motor vehicle, namely, a private car with chassis number E51-028370.

8.  D1 pleaded guilty to all charges.  D2 pleaded not guilty to all charges against him, namely Charges 1 & 4.  As a result, D2 faced a trial on those 2 charges against him.  After trial, D2 was convicted of Charge 1 but acquitted of Charge 4.

Facts admitted by D1 and where applicable found against D2

Charge 1

9.  On 28 November 2020, at about 3:47 am, a black 7-seater (later known to have chassis number E51-028370)  (“the Vehicle”)  stopped by the motorcycle parking spaces outside No 320 Reclamation Street.  The front of Vehicle had a red number trade plate “T12247”, while the back of the Vehicle had another red number trade plate “T12389”.

10.  D1 and D2 then alighted the Vehicle.  The duo then lifted a black motorcycle (later known to have chassis number RGTHY150JGT010028)  into the back of the Vehicle.

11.  D1 and D2 then got into the Vehicle and drove off along Reclamation Street in the direction of Mong Kok and towards Sham Shui Po.

12.  At about 4:04 am, the Vehicle stopped at a traffic light on Lai Chi Kok Road, near Tonkin Street.  A police vehicle drove into the lane where the Vehicle was and stopped in front of it.  The Vehicle collided into the near side of the police vehicle.

13.  D1 opened the driver’s door and exited the Vehicle and fled.  D2 followed D1 and fled via the driver’s door.  After a short chase by the police, D2 was eventually subdued and arrested.  D2 had labour gloves on at the time of arrest.  D1 was also arrested after a longer chase by the police.

14.  The motorcycle belonged to Wu Chuanyi.

15.  At the material time and place, D1 and D2 stole the motorcycle, property belonging to Wu Chuanyi.

16.  At all material times, D1 and D2 were Form 8 recognizance holders.

Charge 2

17.  The collision dented the police vehicle.  By allowing the Vehicle to collide with and dent the police vehicle, D1 drove in a manner which fell far below what would be expected of a competent and careful driver.  His driving manner was also obviously dangerous to a competent and careful driver.

Charge 3

18.  At all material times, whilst D1 was driving the Vehicle, it was not covered by any third party insurance.

Charge 4

19.  Upon search of the Vehicle, apart from locating the motorcycle, the police also found two pairs of cutting pliers (32 inches and 24 inches long respectively)  and two pairs of labourer’s gloves.  D1 admits that he and another non-Chinese male had the cutting pliers and the gloves for use in the course of or in connection with theft.

Charges 5 and 6

20.  The owner of the trade plate T12247 was a CW Chan who reported it missing in August 2020.  He then cancelled the trade plate registration at the Transport Department.

21.  The owner of the trade plate T12389 was a KY Law who claimed he had returned and deregistered the trade plate with the Transport Department in January 2011.

22.  Both of the trade plates on the Vehicle were used by D1 with the intent to deceive.

Criminal records

23.  D1 has one previous dissimilar conviction in 2013.

24.  D2 has a clear record.

Antecedents statements

25.  D1 is a Ugandan, aged 48 (46 at the time of the offences).

26.  D2 is a Ugandan, aged 36 (almost 35 at the time of the offence).

Mitigation

D1

27.  Mr John Murray of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.  The following is a summary of the mitigation submissions.

28.  D1 pleaded guilty at the first opportunity and is entitled to a one-third discount.

29.  D1 was born in Uganda and he was a trader in car parts there.  In 2012, he arrived in Hong Kong and was a torture claimant.  He then married a local woman (sitting in court)  and they have two sons aged 4 and 1.

30.  D1 has one previous conviction: in 2013, he was sentenced to one month’s imprisonment for breach of condition of stay.

31.  The owner of the motorcycle subject of Charge 1 purchased it second-hand with the intention of taking a motorcycle test.  In December 2019, he parked it in Mong Kok – Yau Ma Tei area but could not remember where.  He failed his driving test and did not extend his probationary driving licence and did not actively look for his motorcycle.  It was submitted that the motorcycle was of low value and of little value to the owner, almost abandoned.

32.  As for Charge 2, it was submitted that the dangerous driving was at the lower end of the scale.  A police vehicle followed the van driven by D1 for a long time, during which time the van was driven at slow speed and stopped at traffic lights without any complaint on the manner of driving.  The dangerous driving occurred when the occupants jumped out of the van at a junction of Lai Chi Kok Road and Tonkin Street and the van continued to roll forward at a slow speed and bumped into the police vehicle which had cut sideways in front of the van.

33.  In relation to Charge 3, the van that D1 was driving was not insured. D1 did have a driving licence.

34.  Charge 4 is Going equipped for stealing.

35.  Charges 5 & 6 relate to trade plates on the van.  The trade plates at the front and back were different so this fact would be easily spotted; there was no sophistication in the operation.

36.  It was submitted there are no guidelines for offences involving theft of motor vehicles which include motorcycles; that although in a number of cases a 3 years’ starting point has been taken (see HKSAR v Kan Tak Man, CACC 122/2016), the court can take into account the value of the vehicle, the circumstances in which it was stolen and the damage caused to the motorcycle and the nuisance caused to the owner.  It was submitted that here, the value was low; the motorcycle was taken from a place where it had been parked for months; no damage was caused and the nuisance to owner if any was low.

37.  The court is urged to take into account totality and that all offences occurred at the same time.

38.  The court is reminded that there is a minimum mandatory disqualification period of 12 months for a first offence.  There are no special reasons why the court should not impose the mandatory disqualification order or the mandatory order to attend and complete a driving improving course.

39.  Mr Murray accepted that there is the aggravating factor of D1 being a Form 8 holder.  However, it was submitted that in all the circumstances this is not a case that affects the community at large or has a significant impact on Hong Kong’s reputation for order and security.  Mr Murray referred to HKSAR v Junaid Ahmed, CACC 79/2017, in which there was an enhancement of 3 months on a charge of burglary which, so it was submitted, was arguably a more serious offence.

D2

40.  Ms Patricia Alva of counsel assigned by the Director of Legal Aid mitigated on behalf of D2.  The following is a summary of the mitigation submissions.

41.  D2 was born in Uganda.  He holds a degree in education.  He has previously worked as a school teacher with a very low income.  He is married with 3 children all below teens.  Before he came to Hong Kong in 2017, he had been engaged in the business of selling spare car parts for 5 years.

42.  In relation to the motorcycle, it was bought second-hand by Wu.  He had left it for 2 years; it was of low/no value to him.

43.  Ms Alva could find no sentencing cases on theft of a motorcycle.

Sentence

44.  I take into account that the offence subject of Charge 1 was committed by D1 and D2 together.

45.  I take into account that, as against D1, the offence subject of Charge 4 was committed by D1, together with another person.

46.  I take into account each of the two defendants was and is a Form 8 recognizance holder.

47.  For Charge 1 against both D1 and D2, which relates to a theft of a motorcycle, I take an initial starting point of 2 years 6 months.  Because of the aggravating factor of a joint enterprise, I increase it to 2 years 9 months.  Because of another aggravating factor of being a Form 8 recognizance holder, I increase the starting point further to 3 years.

48.  For Charge 2, which relates to an offence of dangerous driving, the maximum penalty is $25,000 fine and 3 years’ imprisonment.  There is also mandatory disqualification for not less than 6 months and mandatory driving improvement course unless special reasons exist.  Given this case belongs to the less serious category, I will take 9 months’ imprisonment as the starting point and I will not increase the starting point on account of D1’s being a Form 8 holder.

49.  For Charge 3, a charge of using a vehicle without insurance, the maximum penalty is $10,000 fine and 12 months’ imprisonment.  There is also mandatory disqualification for a period between 12 months and 3 years from the date of conviction.  I will take 6 months’ imprisonment as a starting point and I will not increase the starting point on account of D1’s being a Form 8 holder.

50.  For Charge 4, a charge of Going equipped for stealing, the maximum penalty is 3 years’ imprisonment.  I adopt an initial starting point of 12 months’ imprisonment.  On account of the dual aggravating factors of joint enterprise and D1’s being a Form 8 holder, I shall increase the starting point by 3 months to 15 months’ imprisonment.

51.  For Charges 5 & 6, two charges each of Using a trade plate with intent to deceive, the maximum penalty is $10,000 fine and 3 years’ imprisonment.  I shall adopt a starting point of 6 months’ imprisonment for each charge.  I shall not increase the starting point on account of D1’s being a Form 8 holder.

52.  D1 pleaded guilty in time and so he shall be entitled to a 1/3 discount on all the sentences.  D2 contested Charge 1 and so he shall not be entitled to any discount on this ground.

53.  In relation to D1, I can discern no other mitigation factors of weight to justify another reduction in sentence.

54.  In relation to D2, I will reduce his sentence by one month in recognition of his previous clear record.

55.  In the case of D1, the activities subject of Charges 3, 5 and 6 may arguably be said to be inter-related.  I will allow wholly or partially concurrent sentences in relation to these charges.

56.  The offences subject of Charges 1, 2 and 4 vis-à-vis D1 are completely separate from one another and from Charges 3, 5 and 6.  Other than under the principle of totality, there is no reason to make their corresponding sentences concurrent, even if partially.

57.  However, in the nature of things, when sentencing D1, I will consider totality before arriving at the final sentence.

58.  I do not find any special reasons exist in the case of D1 to dissuade me from imposing an otherwise mandatory disqualification order or an otherwise mandatory order to attend and complete a driving improvement course.  Where possible, I will consider totality too when making these types of order.

(D1 and D2, please stand)

59.  For Charge 1, D1 is sentenced to 2 years’ imprisonment.  D2 is sentenced to 2 years and 11 months’ imprisonment.

(D2 may be seated)

60.  For Charge 2, D1 is sentenced to 6 months’ imprisonment.

61.  For Charge 3, D1 is sentenced to 4 months’ imprisonment.

62.  For Charge 4, D1 is sentenced to 10 months’ imprisonment.

63.  For Charge 5, D1 is sentenced to 4 months’ imprisonment.

64.  For Charge 6, D1 is sentenced to 4 months’ imprisonment.

65.  As against D1, I order that the sentences on Charges 5 and 6 be served concurrently between themselves, and 2 months of these sentences are to be served consecutively to the sentence on Charge 3.  This interim sentence is Group A sentence ie 6 months.

66.  Further in relation to D1, I order that 3 months of the sentence on Charge 2, and 4 months of the sentence on Charge 4 are to separately run consecutively to the sentence on Charge 1, making a Group B sentence of 2 years 7 months.

67.  Finally, in order to arrive at an overall imprisonment sentence for D1, I order that 3 months of the Group A sentence be served consecutively to the Group B sentence, making an aggregate sentence of 2 years and 10 months’ imprisonment.

68.  For the other types of sentence against D1, under Charge 3, I order that D1 be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for 12 months from the date of conviction.

69.  Further, I order that under Charge 2, D1 be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for 6 months. I order that the two disqualification orders be served concurrently.  Lastly, I order that D1 is to attend and complete, at his own cost, a driving improvement course within 3 months from the date D1 finishes serving his overall imprisonment sentence[1]. I warn D1 that failure to attend and complete the driving improvement course as ordered without reasonable excuse is itself an offence punishable by imprisonment.