HKSAR v. NG LOK FUNG, JERRY

DCCC 958/2017

[2018] HKDC 1101

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 958 OF 2017

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REASONS FOR SENTENCE

1.  D2 pleads guilty to one joint charge of theft of a motorcycle with Wong Kam Ho (D1)[1], contrary to section 9 of the Theft Ordinance[2] (charge 7); one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 10); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[3] (charge 11); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[4] (charge 12) and one further charge of theft of a number plate and vehicle licence (charge 13).

2.  Full details of the offences are set out in the facts admitted by D2 on 22 August 2018.

Charge 7 – theft of motorcycle TZ 7926

3.  In summary at around 3 a.m. on 7 June 2017 Mr Lee Siu Ming parked motorcycle TZ 7926 outside On Chiu House, Cheung On Estate in Tsing Yi.  At 9 a.m. the same morning Mr Lee found the motorcycle missing.  The motorcycle belonged to Association Electrical Engineering Limited and was valued at $40,000 (“motorcycle 1”).

4.  CCTV footage captured two males entering Cheung On Estate at 5:03 a.m. on 7 June 2017 on one motorcycle and five minutes later at 5:08 a.m. two males leaving Cheung On Estate each riding a motorcycle.   

5.  At around 2:10 a.m. on 19 June 2017 police officers on patrol in the car park of Phase II of Cheung On Estate intercepted D2.  Upon enquiry D2 admitted that at around 5 a.m. on 7 June he met his friend D1 at On Chiu House, D1 having asked him to help steal a motorcycle.  The defendant was then arrested. 

6.  D1 was arrested on 20 June 2017 and led the police to recover motorcycle 1, which had been modified by installing a button to enable the motorcycle to be started without using the ignition key.  The motorcycle was also found to bear the number plate of a different motorcycle.  

Charges 10, 11 & 12 – handling motorcycle SW 504 and driving the motorcycle without a valid driving licence and third party insurance

7.  In summary at around 4:40 p.m. on 19 June 2017 the police recovered a motorcycle bearing registration number plate MG 615 under the bridge outside On Chiu House in Cheung On Estate.   The motorcycle had also been modified by installing a button to enable the motorcycle to be started without using the ignition key.

8.  The motorcycle belonged to Mr Mohammed Tufail and was valued at $9,000.  The registration mark of Mr Tufail’s motorcycle was SW504 (“motorcycle 2”).  The registration number plate MG 615 belonged to another stolen motorcycle (motorcycle 3) [5]. 

9.  Mr Tufail had parked his motorcycle outside Shek Yi House, Shek Lei (II) Estate in Kwai Chung at around 10 p.m. on 2 June 2017.  The next morning Mr Tufail found the motorcycle missing.

10.  In three video recorded interviews D2, inter alia, admitted that on 7 June 2017 D1 drove him to On Chiu House on motorcycle 2; after D1 stole motorcycle 1 D1 asked him to drive away motorcycle 2; D1 told him motorcycle 2 was stolen and taught him how to start the motorcycle; he drove motorcycle 2 around Cheung Ching Estate before parking the motorcycle under the bridge outside On Chiu House and on 9 June when D1 asked for return of the motorcycle he refused because D1 owed his girlfriend money and that he planned to sell the motorcycle to cover D1’s debt.  D2 also admitted that he did not have a valid driving licence or third party insurance. 

11.  The police discovered that D2 had installed on his mobile phone an application which recorded all his telephone conversations including conversations on 6 & 7 June 2017 when D1 asked D2 to drive a motorcycle away and on 9 June 2017 when D2 told D1 he had lent the motorcycle to his friend. 

Charge 13 – theft of the vehicle licence and registration number plate of motorcycle TW 2265

12.  Inside the seat compartment of Mr Tufail’s motorcycle the police found the registration number plate and vehicle licence for TW 2265.  Mr Au Tsz Leung, the owner of motorcycle TW 2265,parked his motorcycle on the pavement outside Mayfair Garden in Tsing Yi on 8 June 2017.  The next morning Mr Au discovered the registration number plate and vehicle licence missing from his motorcycle (motorcycle 4). 

13.  In the call records for 9 June 2017 D2 is heard telling D1 that he had three number plates and one vehicle licence in his motorcycle[6].

Mitigation

14.  In passing sentence, I take into account everything said on behalf of D2 by Ms Li together with D2’s mitigation letter and letters written by his employers, the owner and manager of Volcano Grill Limited both of whom speak very highly of D2. I take into account that although D2 has previously been sentenced to imprisonment he has no similar previous convictions.

15.  D2 had known D1 for over ten years.  When D1 rang D2 on the morning of 7 June 2017 and asked him to help drive away a motorcycle, out of foolishness and loyalty, D2 agreed albeit he knew what he was doing was wrong. 

16.  D1 met D2 at his home and then drove D2 to somewhere nearby on motorcycle 2.  On arrival when D1 took out tools to steal a motorcycle D1 asked D2 to act as a lookout.  D2 agreed.  After D1 stole motorcycle 1 and started the engine he asked D2 to drive away motorcycle 2.  D2 drove away the motorcycle which he parked under the bridge near his home. 

17.  D1 owed D2’s girlfriend money therefore D2 planned to sell motorcycle 2 instead of returning the motorcycle to D1. 

Charge 13 – theft of the vehicle licence and registration number plate of motorcycle TW 2265

18.  When first mitigating Ms Li told the court that two days after parking motorcycle 2 under the bridge D2 went to check the motorcycle and discovered inside the seat compartment the registration number plate and vehicle licence of motorcycle 4. Intending to sell motorcycle 2 Ms Li submitted that at that time D2 dishonestly appropriated the registration number plate and vehicle licence of motorcycle 4 with the intention of permanently depriving the owner of the registration number plate and vehicle licence.

19.  As indicated in court, taking into account that the registration number plate and vehicle licence of motorcycle 4 was stolen after D2 parked the motorcycle under the bridge and that in the call records for 9 June 2017 D2 told D1 he had three number plates and one vehicle licence in motorcycle 2, I do not accept the mitigation as to the circumstances D2 says he stole the registration number plate and vehicle licence of motorcycle 4.   

20.  Ms Li having taken further instructions from D2 informs the court that D2 withdraws this mitigation and tells the court that on the night of 8 June D2 was walking around when he saw motorcycle 4.  D2 decided to steal the registration number plate and vehicle licence to use on motorcycle 2. 

Theft of vehicle

21.  There are no guidelines for offences of theft of vehicles or handling stolen vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[7]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

22.  In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic.

23.  I have considered the judgment of the Court of Appeal in HKSAR v So Pak Lun[8], referred to the court by Ms Li, where the Court of Appeal said that the appropriate starting point for theft of a motorcycle valued at $28,000 was 2 years imprisonment and for handling a stolen motorcycle valued at $35,000 was 18 months imprisonment. 

24.  Ms Li asks that I adopt the same starting points for charge 7 (theft) and charge 10 (handling).

25.  I drew to the attention of the parties HKSAR v Fan Chi Wai where leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[9].

26.  Ms Li submits in that case the defendant had previous convictions for offences of dishonesty, however having read the reasons for sentence delivered on 16 September 2015 the sentencing judge although mentioning the criminal record of the defendant did not enhance sentence by reason of that record[10].

27.  Clearly each case depends on its own facts and circumstances.

Sentence

Charge 7 – theft of motorcycle 1

28.  Taking into account the circumstances D2 came to take part in stealing motorcycle 1; the role of D2 as lookout and the value of the motorcycle, $40,000, I am satisfied that a starting point of 2 years’ imprisonment is appropriate.

Charge 10 – handling motorcycle 2

29.  Taking into account that the motorcycle is valued at $9,000; D2’s role was to drive away the motorcycle and that D2 kept the motorcycle intending to sell the motorcycle, I am satisfied the proper starting point after trial is 1 year and 9 months’ imprisonment.

30.  The traffic record reveals that D2 has never passed a driving test having only held a provisional driving licence which expired in 2008. The fact that D2 is not permitted to drive a vehicle is in my view an aggravating feature of the handling.  Similarly having no third party insurance thereby placing all other road users at risk is also an aggravating feature of the handling.    In the circumstances I enhance the starting point for handling by 3 months to 2 years’ imprisonment.

Assistance to authorities

31.  Ms Li explains that D2 fully cooperated with the police telling the police about the involvement of D1 and providing full particulars of D1, including his full name, mobile phone number and residential address.  Mr Chang accepts that the assistance provided to the police by D2 was significant, the police being unaware of D1’s involvement in the offences. 

32.  I am satisfied the defendant is therefore entitled to a 40% reduction in sentence on charges 7 & 10[11]. The defendant is convicted and sentenced to 1 year and 2 months’ imprisonment on each charge. 

Charges 11 & 12 – driving without a valid driving licence and third party insurance

33.  Driving without a valid driving licence and third party insurance are serious offences, in particular where an offender has never passed a driving test.    

34.  I am satisfied a starting point of 6 weeks’ imprisonment for driving without a valid driving licence is appropriate and 3 months’ imprisonment for using a vehicle without third party insurance.

35.  Giving D2 credit for his pleas of guilty he is convicted and sentenced to 4 weeks and 2 months’ imprisonment respectively. 

36.  All four offences were committed at the same time.  In my view sentence must reflect that two motorcycles were involved.  I am satisfied a total sentence of 1 year and 6 months’ imprisonment properly reflects D2’s criminality on charges 7 & 10.  Having taken into account the driving without a licence and insurance in aggravation of the handling charge, I am satisfied wholly concurrent sentences are appropriate for charges 11 & 12.    

Disqualification

37.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction. There are no special reasons in this case.

38.  I am satisfied that a period of 12 months’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months from today. 

39.  The defendant is warned that after serving his prison sentence he will still be disqualified from driving.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.

Charge 13 – theft of the vehicle licence and registration number plate of motorcycle 4

40.  I am satisfied the appropriate starting point is 12 months’ imprisonment.  Giving D2 full credit for his plea of guilty he is convicted and sentenced to 8 months’ imprisonment.

41.  The offence is separate and distinct from the other charges.  I am satisfied a wholly consecutive sentence is appropriate making a total sentence of 2 years and 2 months’ imprisonment.  I am satisfied a total sentence of 2 years and 2 months’ imprisonment properly reflects the defendant’s criminality on the five charges and takes into account D2’s personal circumstances and the seriousness of the offences [12].  

42.  D2 is convicted and sentenced as follows:

Charge 7 - 1 year and 2 months’ imprisonment;

Charge 10 - 1 year and 2 months’ imprisonment with 4 months consecutive and 10 months concurrent to charge 7;

Charge 11 - 4 weeks’ imprisonment concurrent to charges 7 & 10;

Charge 12 - 2 months’ imprisonment concurrent to charges 7, 10 & 11 and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12 months from today; and

Charge 13 - 8 months’ imprisonment consecutive to charges 7, 10, 11 & 12.

43.  The total sentence to be served is 2 years and 2 months’ imprisonment.