HKSAR v. SAJED MAHMOOD MINHAS

DCCC 958/2017

[2019] HKDC 1490

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 958 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant faced one charge of handling stolen goods (Charge 15), one charge of driving without a valid driving licence[1] (Charge 16) and one charge of using a motor vehicle without third party insurance[2] (Charge 17).

2.  He pleaded not guilty to the handling charge, and was acquitted after trial.  Unfortunately, on the day of acquittal, the defendant mistakenly thought that sentencing for Charges 16 and 17, which he had earlier pleaded guilty to, had been adjourned and left the court.  His solicitors were not able to contact him because he had switched off his phone.  The defendant was eventually contacted by the Legal Aid Department 10 days later, whereupon the defendant immediately got back in touch with his solicitors and did appear in all subsequent hearings.

3.  As a result of his failing to appear for the sentencing on the day of the acquittal, the prosecution applied to amend the charge sheet to add a charge of Failing to surrender to custody without reasonable cause (Charge 18), contrary to section 9L(1) and (3) of the Criminal Procedure Ordinance, Cap 221.

4.  The defendant pleaded guilty to the additional charge.

5.  This Reasons for Sentence, therefore, deals with the sentencing of charge 16, 17 and the newly added 18.

SUMMARY OF FACTS

Charges 16 and 17

6.  On 23 June 2017 at about 13:46 hours the defendant was riding a motorcycle with a female passenger that displayed registration mark LG3772 (with chassis number RFGLNA701DS006390) along Castle Peak Road – Lam Tei when he lost control of the motorcycle near lamppost FB2248 and crashed.

7.  At the material time the defendant did not have a valid Hong Kong driving licence nor valid third party insurance.

Charge 18

8.  On the day of the delivery of the verdict on the handling charge (9 September 2019), having found the defendant not guilty, the court proceeded to hear mitigation on the remaining charges and submissions on costs, and then stood the case down for 15 minutes to consider the sentences and issue of costs.

9.  When court resumed 15 minutes later at 3:43 pm, the defendant failed to re-appear.  The defendant’s legal representatives were unable to locate or contact the defendant.  As a result, sentencing was adjourned to 09:30 am on 27 September 2019 and a warrant of arrest was issued against the defendant.  The defendant did appear on 27 September on time and the warrant was never executed.

PREVIOUS CONVICTIONS

10.  The defendant has a total of 17 convictions.  He has one similar conviction for the Charges 16 and 17 offences, dating back to 3 April 2007.

11.  The defendant committed the present offences whilst he was remanded on bail for the offence of Criminal Damage, for which he was eventually convicted and fined $5,000.  This is an aggravating factor.

MITIGATION

12.  The defendant’s background is dealt with in detail in the Reasons for Verdict in relation to charge 15, the handling charge.  I will not repeat them here.

13.  Mr Khosa stressed that one matter the court should take into account in deciding on the sentences of Charges 16 and 17, which normally would be a fine, was that the last offences were 12 years ago.

14.  He also pointed out that the defendant was in fact holding a valid international driver’s license issued in the Philippines.  The defendant thought the license allowed him to drive in Hong Kong, but in fact he could not.  Although it is not a defence, Mr Khosa submitted that there is an element of mistake in his commission of Charge 16.

15.  As for the failing to surrender charge, Mr Khosa explained to the court that the defendant had failed to re-appear on the previous occasion because he had mistakenly thought that the hearing was adjourned for 15 days instead of minutes.  He left court on the 9^th overjoyed at the acquittal and went for coffee with his children.  As it happened, the two phone numbers that the defendant had given to his solicitors had been switched off and since the defendant had been staying at different hotels, the solicitors had not been able to get in touch.

16.  The solicitors informed the Legal Aid Department on the 12^th about how they were not able to contact the defendant at the two phone numbers.  The Department took over the matter and eventually managed to get in touch with the defendant on the 19^th and told him about the situation, whereupon the defendant immediately got back in touch with the solicitors.

17.  Mr Khosa submitted that although the reason the defendant failed to re-appear would not amount to a reasonable cause, it is a strong mitigating factor.

SENTENCE

18.  The sentencing for Charge 16 is governed by section 42(4) of Cap 374:-

“42(4) Any person who contravenes subsection (1) … commits an offence and is liable, in the case of a first conviction to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction or of a conviction subsequent to a conviction under section 5(4) or (5) of the repealed Ordinance to a fine of $10,000 and to imprisonment for 6 months.” (emphasis added)

19.  The sentencing for Charge 17 is governed by section 4(2)(a) of Cap 272:-

“42(2)(a) If a person acts in contravention of this section, he shall be liable to a fine of $10,000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction. (Replaced 22 of 1976 s 2)” (emphasis added)

20.  This is the defendant’s second conviction for driving without a valid licence as well as driving without third party insurance.

21.  The defendant had committed the present offences whilst he was on bail for the earlier case of criminal damage.  Mr Khosa conceded that this must be an aggravating factor, but pointed out that the offences are of very different nature.

22.  Mr Khosa very fairly informed the court that the defendant only indicated his guilty pleas on the first day of trial and as such should only be entitled to a 20% discount on his sentence, and not the full one-third discount.

23.  As I had found in the trial of the handling charge, the duration of the defendant’s driving was to have been about 10 minutes, while the actual time he had been driving the motorbike was less than 2 minutes and for a distance of about 200 meters.

24.  Although the duration of the driving was only to be for a short time and a short distance, had the accident involved a third party, the consequences could have been dire.

25.  Be that as it may, I find that a fine is sufficient punishment for the two offences in the circumstances of the case.

Charge 16

26.  This being the defendant’s second conviction, and the defendant had committed the offence whilst he was on bail for another unrelated case, I will adopt a starting point fine of $8,000, which is reduced to $6,400 after discounting it by 20% for the defendant’s guilty plea on the first day of trial.

Charge 17

27.  Similar to charge 16, this is the defendant’s second conviction and he had committed the offence whilst on bail for an earlier unrelated case.  I will adopt a starting point fine of $8,000, which is reduced to $6,400 after discounting it by 20% for the defendant’s guilty plea on the first day of trial.

DISQUALIFICATION

28.  Mr Khosa did not put forward any reason to not disqualify the defendant.

29.  As a seasoned dealer of vehicles in the business, the defendant must have known the possibly serious consequences of driving a motor vehicle without third party insurance cover.

30.  This casual attitude towards driving without third party insurance when he was testing out vehicles must not be condoned.  The fact that he makes a living out of dealing with vehicles and therefore would require frequent testing of vehicles is all the more reason to disqualify him to make sure that he is deterred from committing the same offence again.

31.  This is the second time that the defendant had committed this offence, although the last time was some 12 years ago.

32.  I find that in the circumstances, the defendant is to be ordered to be disqualified from holding or obtaining a licence to drive a motor vehicle for 21 months in relation to charge 17.

Charge 18

33.  The maximum sentence for an offence under section 9L on conviction upon indictment is a fine of any amount and imprisonment for 12 months.

34.  In considering my sentence, I note first of all that the defendant had just been acquitted of the serious charge of handling stolen goods when he left the court.  He was only to be sentenced for the remaining two charges, which would usually be dealt with by way of fines.  There was no reason why the defendant would want to abscond at that stage of the proceedings.

35.  I find that his explanation as put forward through Mr Khosa is not inherently improbable and I do accept it.

36.  On that basis, I find that a fine is sufficient to deal with the matter.

37.  Given the defendant’s plea of guilty and the strong mitigating factor, I will impose a fine of $500.

38.  The fines for charges 16, 17 and 18 are to be deducted from the bail money ($20,000). That would leave a balance of $6,700.

ESTREATMENT

39.  There is then the matter of estreatment of the bail money.  I find that there is no reason not to order an estreatment and I exercise my discretion and order that $6,700 be estreated from the bail money.

COSTS

40.  The defendant has been acquitted after trial of the handling charge (Charge 15).  I find that it is just and reasonable that the defendant should be awarded costs for the charge 15 proceedings pursuant to section 5 of the Costs in Criminal Cases Ordinance, Cap 492, to be taxed if not agreed, but only for the period that the defendant was privately represented before he was granted Legal Aid.