HKSAR v. KWOK WAI MAN

DCCC 305/2018

[2019] HKDC 613

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 305 OF 2018

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Reasons for Sentence

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1.  The defendant has pleaded guilty to what is a total of nine offences, which involve his involvement with taking and driving away and stealing a number of vehicles.

2.  Just a brief summary of the facts.

3.  The first offence was the offence of taking conveyance without authority, committed on 26 September 2017, which involved the defendant taking away a private car which had been parked in an open car park.  The car was admittedly driven away by the defendant.  It appears the car had come into collision with another vehicle and been abandoned.  There is some evidence from DNA testing of the defendant’s presence in the vehicle.

4.  Second offence is some one month later involving the theft of a light goods vehicle.  That was on 26 October 2017, this vehicle being parked in Tsim Sha Tsui with the ignition key left in the ignition.  The vehicle was recovered the next day and had been found missing on the same day. Surprisingly, the identity card and the Hang Seng Bank card and bail receipt of the defendant was found in the vehicle.

5.  The third charge relates to the theft of a smartphone.  The defendant appears to have taken away a mobile phone from a vehicle in this case.  The defendant was involved in a struggle that led to him leaving his DNA behind. 

6.  The defendant pleaded guilty of the fifth charge to taking a vehicle, which was a motorcycle being used to deliver food, the ignition key being left in the vehicle, and the defendant drove that vehicle away.

7.  The defendant also pleaded guilty to the eighth through to twelfth charges, the eighth charge involving the theft of a light goods vehicle.  These offences occurred on 1 November 2017.  This involved a goods vehicle which was parked in Causeway Bay.  Again, the ignition key was left in the vehicle and the vehicle was found to be missing.  The defendant was actually seen driving the vehicle later that day.

8.  Eventually, the police tried to arrest the defendant.  He was not able to produce his identity card and also a motorcycle was found in the rear compartment of the vehicle and that had obviously been stolen as well, and that had been parked on 1 November, so it appears to be stolen on the same day.

9.  The facts also show the defendant did not have a driving licence, a valid driving licence, and naturally he must have used the vehicle - certainly, the light goods vehicle - on 1 November without having any third party insurance.

10.  It is a somewhat extraordinary series of offences.  The vehicles had been taken and abandoned almost spontaneously. 

11.  I am told in mitigation the defendant has an enthusiasm for driving.

12.  The defendant is currently 42 years old.  He has, on his own admission, been addicted to dangerous drugs since he was 17, educated to secondary Form 3 level.

13.  He has spent a considerable amount of time in prison, has a large number of offences dating back to 1992, total of 15 appearances in court.  A number of offences involving drugs:  more recently in 2017, 4½ years for trafficking in dangerous drugs; and in 2014, where the defendant received a sentence appears to be 6 years’ imprisonment for trafficking in dangerous drugs, being discharged from imprisonment on 12 July 2017. 

14.  He was arrested for these matters on 1 November 2017 and had started committing these offences in 26 September 2017, so the defendant has only spent a few months out of prison since 2014.

15.  The defendant also, understandably, from his criminal record, has problems of both psychological and psychiatric in nature.

16.  The conclusion of the psychological report is the defendant is impulsive and has low frustration tolerance.  The defendant was discharged from prison in 2017 and used drugs, illicit substances to cope with the depression suffered after his discharge.  As the offences related to impulsiveness and weakness in emotional regulation, the risk assessment for further offending is considered to be moderate to high.  The psychologist said that the defendant Mr Kwok has expressed genuine remorse and motivation to change.  That is encouraging, but the defendant will need extensive psychological treatment to improve his condition.

17.  On the psychiatric side, the defendant has a history of mental and behavioural disorder due to his, what is called, polysubstance harmful abuse, and also a delusional disorder.  The psychiatrist observes that the defendant was likely voluntarily intoxicated with hypnotics at the time of the offences.  That is a well-warranted observation by the psychiatric officer and clearly this somewhat bizarre series of offences must have been spurred by the taking of hypnotics.

18.  Mitigation attributes the defendant’s commissions of these offences to the influence of zopiclone, which is a kind of sleeping pill.  Some of the offences were committed in broad daylight, were committed impulsively, and under the influence of the hypnotic drugs.

19.  Fortunately, all the property, which is the private cars, the light goods vehicles, the motorcycles and the mobile phone, were all recovered.  One of the offences, particularly Charge 11, involved a motorcycle being simply put in the rear compartment in a light goods vehicle that had been stolen earlier.

20.  The defendant is remorseful.  He acted alone. The vehicles were not resold and taken out of Hong Kong.  They were not carefully planned; the ignition keys were left in a number of the vehicles that were stolen.  And it is acknowledged that these are serious offences over a period of time, but I must regard them more in what we call the joyriding section of taking and stealing vehicles rather than these being vehicles stolen for purposes of commercial gain.

21.  Turning to the most serious aspects of the offence, these are clearly the theft of the various vehicles and then taking the conveyances without authority.  The general starting point for theft of vehicles would be a sentence of 3 years’ imprisonment for a person of clear record who pleaded not guilty.

22.  For an offence of taking conveyance without authority where it is a joyriding-type offence, then a starting point in the region of 9 months’ imprisonment would be appropriate.

23.  Taking into account the mitigation factors that I have already set out, I am going to impose the following sentence on these offences.

24.  On the first offence of taking conveyance without authority, I will take a starting point at 9 months’ imprisonment, reduce that to 6 months’ imprisonment for plea of guilty.

25.  For the second offence of theft of a vehicle (that is, the light goods vehicle) on 26 October, I will take a starting point of 3 years’ imprisonment, reduce that to 2 years’ imprisonment for defendant’s plea of guilty.

26.  For the third offence of theft involving the mobile phone, I will take a starting point of 9 months’ imprisonment and reduce that to 6 months’ imprisonment for plea of guilty.

27.  For the fifth offence of taking a vehicle without authority (which is the motorcycle), I shall adopt a starting point of 9 months’ imprisonment, reduce that to 6 months’ imprisonment for the defendant’s plea of guilty.

28.  I now turn to the offences committed on 1 November.

29.  Firstly, there is an offence of theft of the light goods vehicle.  I will take a starting point of 3 years’ imprisonment, reduce that to 2 years’ imprisonment for the defendant’s plea of guilty.

30.  For the ninth offence, the offence of driving without a valid licence, after deduction for plea of guilty, I will impose a sentence of 1 months’ imprisonment.

31.  For the tenth offence of using a motor vehicle without third party insurance, I will take a starting point of 3 months’ imprisonment, reduce that to 2 months’ imprisonment for the defendant’s plea of guilty, and impose a 12-month disqualification from driving.

32.  For the eleventh offence of taking the motorcycle on the same day, I will take a starting point at 24 months’ imprisonment, reduce that to 16 months’ imprisonment for the defendant’s plea of guilty.

33.  For the final twelfth offence for failing to produce proof of identity, I will impose a sentence of 7 days’ imprisonment.

34.  The offences were committed over quite some time, a number of them separately, so some of them can be served consecutively.

35.  The court must set a realistic sentence for this set of offences.  I consider that, taking into account all the factors that I have already set out, an appropriate starting point for sentence for the whole range of offences that the defendant has committed will be one of 4½ years’ imprisonment.

36.  After deduction for plea of guilty, that would lead to an overall sentence of 3 years’ imprisonment.

37.  I will achieve that overall sentence of 3 years’ imprisonment as follows.

38.  Offences 1 through to 5 will be served concurrently to each other.  That is a total of 2 years’ imprisonment.

39.  Offences 8 through to 12 will be served concurrently to each other.  That is a total of 2 years’ imprisonment for those offences.

40.  I will order that 1 year of the offences 8 through to 12 be served consecutively to 1 to 5, leading to an overall total sentence of 3 years’ imprisonment and a 12-month disqualification from driving, and that will be my ruling.