HKSAR v. LEUNG KIN YIP AND OTHERS

DCCC 687/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 687 OF 2015

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Reasons for Sentence

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1.   The 1st defendant has pleaded guilty to Charges 1 and 2, whereas the 2nd and 3rd defendant have pleaded guilty to Charge 1 being attempted theft of a vehicle.  In fact, the theft of the vehicle was almost successful but for the police arriving when they did; catching the defendants red-handed. 

2.   The facts are that a private vehicle was parked outside the victim’s home near Route Twisk of Tsuen Wan.  There was a CCTV camera in that area.  In the evening of 19 March 2015, the victim heard some noises outside his home and looked at the CCTV monitor.  He saw a suspicious vehicle and people which led him to call the police.

3.   The suspicious vehicle was the 1st defendant’s vehicle driven by him.  It was parked next to the victim’s vehicle.  The 1st defendant remained in the driver’s seat.  The 2nd and 3rd defendant got out and broke into the victim’s vehicle.  The driver’s side door lock was broken.  Tools were found on the ground next to the car.  In fact, when the police arrived, the 2nd and 3rd defendant had managed to switch on the vehicle’s ignition. 

4.   As soon as the police arrived, the 2nd and 3rd defendant jumped back into the 1st defendant’s vehicle who then drove away at a high speed.  He then committed the 2nd charge, driving dangerously when he tried to get away from the police.  For about 600 metres, he drove dangerously. 

5.   Despite the police siren and the police using a loudhailer to demand the defendant stop his vehicle, he sped up and crossed double white lines on several occasions until he reached a bend. There, after a bend, he hit a vehicle head on in the wrong lane.  Luckily, nobody was seriously injured.  Both cars were very damaged. 

6.   Although the 1st defendant only drove dangerously for a short distance, he was trying to evade the police and obviously endangered other road users’ safety. 

7.   The best mitigation for all defendants is their pleas today.

8.   The 1st defendant is 26 years old with only one previous conviction.  In 2008, when he was 19 years old, he was put on probation for possession of dangerous drugs.  He has had a driving licence since 2011 and has no traffic convictions. 

9.   The 2nd defendant is 47 years old with many previous convictions.  He has made 26 court appearances and has 43 criminal convictions.  Many of those convictions involve theft from vehicles, other involving dishonesty such as theft, robbery and burglary.  There are other offences involving violence and numerous other offences involving vehicles and vehicle documents.  Those include a District Court case in 2009 where there is a conviction for handling stolen goods, a vehicle.   There is a further District Court conviction in 2012 for burglary.  In the same year, another two convictions for stealing two vehicles.  His last conviction was for handling stolen goods, again a vehicle, where the defendant was released from that term of imprisonment in February 2015.  One month later, he committed this offence, again involving an attempted theft of a vehicle. 

10.   The 3rd defendant is 24 years old.  He has had nine court appearances and a total of 25 criminal convictions.  They involve offences of dangerous drugs, theft from vehicles, taking conveyance without authority and handling stolen goods.  They involve vehicles in 2012 in a District Court case.  He also has convictions for dangerous driving, driving whilst disqualified, driving without insurance. 

11.   Where the 2nd and 3rd defendant are concerned, they have many convictions that relate to stealing vehicles and other vehicle-related or driving-related offences.  Both have served terms of imprisonment on many occasions for these offences.  Despite that, they keep at it.  Both are nuisances to the public, other road users and vehicle owners. Their persistent offending can be described as recidivism and an aggravating factor. 

12.   I have heard full mitigation for all three defendants from three counsel.  A background report in such case will not assist me where mitigation has been full and a term of imprisonment inevitable. 

13.   From the 1st defendant, I have had letters from his mother, relatives and present employer.  I take into account the details of those letters and I am sure there is real remorse from the 1st defendant.  I accept the mitigation put forward that he was obviously not the mastermind.  He was asked to be a driver and provide a vehicle.  I am not sure I believe that he did it as a favour, but I will accept that he was foolish and ignorant to accede to the request, and I accept that when the police arrived, the 1st defendant panicked and drove in the way he did.    As I said, luckily, nobody suffered any serious injury.

14.   I have had a written mitigation put forward on behalf of the 2nd defendant with his background.  The 2nd defendant has long been involved with vehicles because of his work as a garage worker. He is divorced with two children he has responsibility for.  He pleaded guilty and is willing to pay compensation to the victim of the vehicle. 

15.   The 3rd defendant is a young father of a 2-year-old who he has responsibility for.  He was a construction site worker before this remand.  Now his girlfriend has to work to support their son. 

16.   Both the 2nd and 3rd defendant express remorse and say they are determined not to reoffend. 

17.   There are no tariffs for either of these offences.  The starting point of any term of imprisonment for these offences would depend on the circumstances of each case. 

18.   I have considered all mitigation put forward, the facts of the case, the value of the vehicle and the damage sustained.

19.   For Charge 1 where the 1st defendant is concerned, to reflect his lesser role, I take a starting point of 2 years’ imprisonment.  For the 2nd and 3rd defendant, because of their roles, I take a starting point of 2 years and 6 months.  However, as I identified earlier, there is an aggravating factor of their repeat offending, their recidivism, and I intend to increase that starting point by 6 months to a 3-year starting point. 

20.   All three have pleaded guilty and all three are entitled to a discount of one-third from those starting points. After that discount is applied, for Charge 1, the 1st defendant is sentenced to 1 year and 4 months’ imprisonment; the 2nd and 3rd defendant, 2 years’ imprisonment.

21.   I am going to order a compensation order.  Each defendant is to pay $1,000 compensation to the registered owner of PL 8210.

22.   For the 2nd charge, the 1st defendant, I take a starting point of 2 years’ imprisonment.  I have to reflect the fact the defendant was fleeing from the police, but I also accept that he panicked. That starting point will be reduced by one-third for the 1st defendant’s plea. After that discount is applied, for Charge 2, the 1st defendant is sentenced to 1 year and 4 months’ imprisonment.

23.   I have taken into account the totality principle and the sequence of events, I order that 4 months of Charge 2 be served consecutively to Charge 1 and the balance concurrently.  Therefore, the total sentence for the 1st defendant for Charge 1 and 2 is 1 year and 8 months.

24.   The 1st defendant is also disqualified from driving all classes of vehicles for a period of 2 years and 6 months.   He is also ordered to attend a driving improvement course within the last 3 months of the disqualification period at his own cost.  The 1st defendant is also warned that if he drives whilst disqualified, he commits a serious offence and will face another term of imprisonment. 

25.   There is a matter of compensation.

(Discussion re compensation)

26.   $1,000 compensation from the 1st and 2nd defendant’s bail.  3rd defendant’s compensation of $1,000, payable within 14 days.  In default, I add a further 3-day term of imprisonment to his sentence.   You all understand the sentences?

INTERPRETER: Yes.