HKSAR v. MAK PAK LAM

DCCC 815/2020

[2021] HKDC 553

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 815 OF 2020

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REASONS FOR SENTENCE

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The defendant pleaded guilty to 1 charge of "Handling stolen goods" (Charge 1); 1 charge of "Driving without a valid driving licence" (Charge 2); 1 charge of "Using a motor vehicle without third party insurance" (Charge 3); 1 charge of "Forgery of documents[1]" (Charge 4); and 1 charge of "Possession of a dangerous drug" (Charge 5).

Summary of Facts

2.  In May 2020, Mr. Li (PW2) ran a company selling frozen meats ("the Company").  The Company owned a white light goods vehicle KW5681 with chassis number JAANPR75HA7101290 ("the LGV"). Mr. Loong (PW1) was an employee of the Company assigned to drive the LGV.

3.  About 5:30 p.m. on 18 May 2020, PW1 parked the LGV outside Nan Fung Industrial City, Yip Wong Road, Tuen Mun and locked it.  About 10:00 a.m. on 19 May 2020, PW1 returned to the same location and found the LGV missing.  He reported the matter to PW2 and the Police.

4.  About 6:20 p.m. on 19 May 2020, based on information supplied by Mr. Tse (PW4), who is a friend of PW2 and entrusted to search for the LGV, police officers found the LGV, which was parked near Lamppost No.AD6707, Tsui Sing Road, Tin Shui Wai.  The defendant was sitting in the driver's seat.  This is Charge 1.  Police officers searched the LGV.  Its ignition key switch was found having been prized and damaged.

5.  Upon search, 22 transparent plastic bags which contained a total of 3.94 grammes of a solid containing 3.07 grammes of cocaine were found in the defendant's right front trouser pocket.  This is Charge 5.

6.  PW2 soon arrived at the scene.  He confirmed that the vehicle found by the Police was the LGV, except a pair of false number plates (VP1297) were installed on it.  This is Charge 4.  PW2 also found the car camera of the LGV missing.

7.  Records kept by the Transport Department revealed that the defendant's driving licence had expired on 24 September 2018.  He held no valid driving licence on 19 May 2020.  This is Charge 2.  Since the defendant was not a person authorized to drive the LGV, there was no valid third party insurance coverage when he drove the LGV on 19 May 2020.  This is Charge 3.

Mitigation

8.  The defendant is 53 and has 12 conviction records, which included 2 "Attempt taking conveyance without authority" offences, 1 "Handling stolen goods" offence, 2 "Using a motor vehicle without third party insurance" offences and 3 "simple possession" offences.  Defence counsel Mr. Pun informed me that the defendant is married with 2 adult sons.  He was a decoration worker earning about $12,000 to $15,000 per month.

9.  In mitigation, in respect of Charges 1 to 4, Mr. Pun explained that someone had asked the defendant to drive the LGV from the New Territories to a garage in Kowloon.  The defendant knew that the LGV was a stolen vehicle and that false number plates were installed on it.

10.  Regarding Charge 5, Mr. Pun submitted that the defendant is a drug addict.  He bought the cocaine for his own consumption.  He has no previous "trafficking" convictions.  Although the drug was packaged in 22 bags, they were sold to the defendant in that manner.  No trafficking paraphernalia were found in this case.  The latent risk is, therefore, not high.

Sentence

Charge 1

11.  When determining the starting point for this charge, I have borne in mind the sentencing principles laid down by the English Court of Appeal in R v Webbe (Bernard) [2002] 1 Cr App R (S) 22 (which were adopted and applied by the Court of Appeal in HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). I find 2 aggravating factors exist in the present charge (namely seriousness of the predicate offence – theft of the LGV; and value of the LGV).

12.  Theft of a motor vehicle is a serious crime which justifies a starting point of 3 years' imprisonment[2]. The defendant is no stranger to theft-related offences. He was driving the LGV some 8 hours after it was found missing. I consider 27 months' imprisonment to be the appropriate starting point. I will enhance it by 3 months to reflect the 2 aggravating factors mentioned above. Thus, the starting point becomes 30 months. With the timely guilty plea, the sentence is reduced to 20 months. I sentence the defendant to 20 months' imprisonment for this charge.

Charge 2

13.  For a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months. The defendant has no ability to pay any fine. I will adopt a starting point of 6 weeks' imprisonment. With the timely guilty plea, the sentence is reduced to 4 weeks. I sentence the defendant to 4 weeks' imprisonment for this charge.

Charge 3

14.  The defendant has 2 similar convictions. The maximum penalty of this offence is a fine of $10,000 and imprisonment for 12 months. By driving the LGV, he has deprived all road users of adequate financial protection. An immediate custodial sentence is required for this charge. I adopt a starting point of 6 months' imprisonment. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

15.  The defendant's unlicensed and unauthorized driving without adequate protection of insurance renders him a serious threat and danger to other road users. Hence, for Charge 3, I also make a disqualification order of 2 years[3], which shall run from the date of conviction[4].

Charge 4

16.  The maximum penalty of this offence is a fine of $10,000 and imprisonment for 3 years. Plainly, the defendant's intention was to disguise the true identity of the LGV. I adopt of a starting point of 6 months' imprisonment for this charge. With the timely guilty plea, the sentence is reduced to 4 months. I sentence the defendant to 4 months' imprisonment for this charge.

Charge 5

17.  In this charge, 3.07 grammes of cocaine (packaged in 22 transparent plastic bags) were involved. They were found in the defendant's trouser pocket. The defendant has 3 similar convictions. When determining the proper starting point, I have borne in mind the principles laid down in HKSAR v Wan Sheung Sum [2000] 1 HKLRD 405.

18.  First, the defendant being a repeated offender, for the quantity and nature of the drug involved, I adopt a starting point of 14 months' imprisonment. Second, the drug was packaged in 22 bags. Even though they might have been sold to the defendant in this manner and that the defendant might have purchased them for his own consumption, those 22 bags of cocaine were in a form ready for distribution. I consider the latent risk to be moderate at least. I will add 4 months to reflect it. The starting point thus becomes 18 months. With the timely guilty plea, the sentence is reduced to 12 months. I sentence the defendant to 12 months' imprisonment for this charge.

Overall Sentence

19.  I accept that Charges 2 and 3 are part and parcel of Charge 1. In other words, Charges 1, 2 and 3 arose from the same criminal act – driving a stolen vehicle. On the other hand, Charges 4 and 5 are separate and distinct from driving the LGV. Bearing in mind the totality principle, I consider a global starting point of 3.5 years' imprisonment appropriate for all 5 charges. With the timely guilty pleas, the overall sentence is reduced to 28 months. I order the sentences to run in the following manner :-

(i)  Charges 1 to 3 concurrent;

(ii)  2 months in Charge 4 consecutive to Charges 1 to 3; and

(iii)  6 months in Charge 5 consecutive to Charges 1 to 4.

Thus, arriving at a total prison term of 28 months for all 5 charges.