HKSAR v. CHOW HEI CHOY

DCCC 1050 & 1054/2017 (Consolidated)

[2018] HKDC 573

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NOS 1050 & 1054 OF 2017

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REASONS FOR SENTENCE

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1.  The defendant faced nine charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (1st charge to the 9th charge), and two charges of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (10th charge and 12th charge), two charges of using a motor vehicle without third party insurance, contrary to section 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (11th charge and 13th charge), and one charge of failure to produce proof of identity on demand, contrary to section 17C(3) of the Immigration Ordinance, Cap 115.

Summary of Facts

2.  According to the agreed Summary of Facts, the defendant had:-

(a) between 21 April 2017 and 23 April 2017 stole motorcycle MM9789 (1st charge); and

(b) between 12 May 2017 and 13 May 2017 stole motorcycle HR832 (2nd charge);

(c) on or about 15 May 2017 stole motorcycle SJ1248 (3rd charge);

(d) between 17 May 2017 and 18 May 2017 stole motorcycle PX4825 (4th charge); and

(e) between 17 May 2017 and 19 May 2017 stole motorcycle LF6255 (5th charge);

(f) between 7 July 2017 and 8 July 2017 stole motorcycle HL4961 (6th charge);

(g) between 13 July 2017 and 14 July 2017 stole motorcycle SU1514 (7th charge);

(h) between 21 July 2017 and 25 July 2017 stole motorcycle MM6123 (8th charge); and

(i) between 26 July 2017 and 1 August 2017 stole motorcycle UR2603 (9th charge) from their respective owners.

Save for PX4825 and UR2603, all motorcycles stolen were subsequently recovered.

3.  The defendant also admitted driving motorcycle SJ1248 and UR2603 without a valid driving licence, being the 10th charge and the 12^th charge respectively.  He also drove these motorcycles without third-party insurance, being the subject matter of 11th charge and the 13^th charge respectively.

Records

4.  It is agreed that defendant was released from prison on 11 March 2017 after being sentenced to 31 months of imprisonment for convictions of six charges of theft of vehicle.

Mitigation

5.  Mr Wong for the defendant submitted to this court that defendant committed the present offences out of his craving for driving motorcycles.  He said the defendant had promised to obtain a driving licence upon his release from prison this time and he would work and save money to buy himself a motorcycle instead of continuing stealing motorcycles from others.  He also asked this court to give defendant the sentencing discount on his guilty plea.

Sentence

6.  In this case, the defendant committed the first offence only two months after he was released from prison after serving 31 months’ imprisonment for similar convictions, theft from vehicles.  It is considered by Mr Wong for the defence that 3 years is the appropriate starting point for theft from vehicles, putting aside any aggravating factors. Such starting point for sentence has been approved by the Court of Appeal in the case of HKSAR v Yu Chi Chiu [2017] 1 HKLR 400.

7.  Here, however, the defendant is clearly a persistent offender so far as thefts of vehicle are concerned which is an aggravating feature in sentencing in our present case.  I will enhance the starting point by 1 month. 

8.  The appropriate starting point in my view for the 1st charge is 3 years and 1 month, and on his guilty plea, he is entitled to full one-third sentencing discount.  He is therefore sentenced on this charge to 2 years and 20 days’ imprisonment.

9.  Similarly, for 2nd charge and 3rd charge, he is sentenced to 2 years and 20 days for each of the 2nd charge and 3rd charge.

10.  Coming to the sentence for the 4th charge, the defendant committed the present offence two to three days after he was being arrested and put on bail in respect of the 3rd charge.  This is clearly another aggravating feature in sentencing for this offence and the subsequent offences.  The defendant had a total disregard of the law in Hong Kong.  I would enhance the sentence of 3 years and 1 month by another 2 months.  The sentencing starting point for the offence is therefore 3 years and 3 months.  After giving the defendant the sentencing discount on his guilty plea, he is sentenced to 2 years and 2 months for this offence.

11.  And similarly, for the sentence for the 5th charge, the 6th charge, the 7th charge, the 8th charge and the 9th charge, the defendant is by reason as aforesaid, after his guilty plea sentenced to 2 years and 2 months for each of these offences.

12.  For the 10th and the 12th charge, defendant has a similar conviction on 20 April 2000 when he was sentenced to 6 months’ imprisonment.  The maximum penalty for this offence for the second and subsequent conviction is a fine of $10,000 and 6 months’ imprisonment. The defendant, well knowing the requirements of the law and the risks to other road users whilst he is on the road, casually commits the offence for his own personal pleasure.  The appropriate sentencing starting point is 3 months’ imprisonment and after giving him one-third sentencing discount, defendant is sentenced to 2 months’ imprisonment for each of the 10th charge and the 12th charge.

13.  For the 11th and the 13th charge, defendant has similar conviction on 20 April 2000 when he was sentenced to 6 months’ imprisonment.  The maximum penalty for this offence is a fine of $10,000 and 12 months’ imprisonment coupled with a disqualification from holding or obtaining a licence to drive a motor vehicle.  In this case, having regard to the circumstances under which these offences were committed, the appropriate sentencing starting point would be 6 months and after affording him the one-third sentencing discount, defendant is sentenced to 4 months’ imprisonment for each of these two charges.

14.  For the 14th charge, this is the first time the defendant has committed this offence.  On conviction of this offence, defendant is liable to a fine at level 2.  In this case, defendant is fined $200 and in default of payment, he is sentenced to 1-day imprisonment.

15.  Now coming to the period of disqualification, in the Yu Chi Chiu case, the Court of Appeal said, “A disqualification order is forward-looking and preventative rather than punitive.”  And further, in paragraph 36 of the judgment in the case of HKSAR v Yeung Chi Wa CACC 224/2017, it reads:-

“In the judgment of this court in the Secretary for Justice v Hung Ling Kwok, to which the judge’s attention was drawn in the course of mitigation, the principle that an order for disqualification was “forward-looking and preventive” was endorsed. Regard is to be had to the fact that part of the period of disqualification would be served while the applicant was in custody. In that case the applicant had been sentenced to 3 years and 4 months’ imprisonment and disqualified from driving for 3 years. In the result, the court increased the period of disqualification to 6 years.”

16.  Later, in latter half paragraph 37 of the judgment, the court said that:-

“…in determining the appropriate balance between the competing consideration of the safety of the public and the risk that someone obsessed by driving might be tempted to drive illegally, this Court said “…the facts show that though the appellant had persistently committed the offence of driving a vehicle without a licence, he had never been convicted of “dangerous driving” or “careless driving”.”

17.  In section 69 of the Road Traffic Ordinance, subparagraph (1)(c), it says:-

“Without prejudice to any other provision relating to the penalty that may be, or is required to be, imposed for an offence, a court or magistrate before which a person is convicted of the following offence may order that he be disqualified for such period as the court or magistrate thinks fit.”

And subparagraph (c) is stealing a motor vehicle, and subsection (2)(b) of the same section says:-

“A disqualification imposed in respect of any other offence specified in subsection (1) shall be a disqualification from holding or obtaining any driving licence.”

18.  For convictions of the11th charge and the 13th charge, the court has jurisdiction to disqualify a defendant for not more than 3 years but that restriction does not apply to section 69 of the Road Traffic Ordinance. 

19.  In the case of Yu Chi Chiu CACC 198/2015, in paragraph 26 of the judgment, it reads:-

“This court considers that a shorter disqualification order may perhaps remind the appellant to take the driving licence test as soon as possible. This is yet another signal that this court gives him (the appellant has on a few occasions been disqualified from driving). If the appellant really comes to senses, the road users will have greater protection in the future because at least the appellant will not be driving a vehicle without third-party insurance. If the appellant really comes to his senses, he will not risk driving a vehicle or even driving a stolen vehicle whilst being disqualified.”

In that case, the Court of Appeal reduced the disqualification order from 6 years to 4 years.

20.  In the case here, having regard to the casual manner that the defendant has chosen to commit the offences and on the other hand there is no evidence that he had been driving carelessly or dangerously, I find the appropriate period of disqualification, the defendant from holding and/or obtaining driving licence of any kind to be 4 years for each of the 1st charge to the 9th charge, and 2 years of disqualification period for each of the 11th and the 13th charge, and I so order.  These periods of disqualification shall run concurrently to each other.

21.  Considering the criminality and the culpability of the defendant in the present case and having regard to the totality principle, I find that the appropriate and just overall sentence on his guilty plea would be an overall sentence of 3 years.

22.  Nature of offences for the 10th charge, 11th charge and 12th and 13th charges are different in nature to those in the 1st to 9th charges.  It is clear also that the commission of the 10th and the 12th offence necessitate and/or necessarily entails commission of the 11th and the 13th offence.  Accordingly, the sentence for the 10th, 11th, 12th and 13th offences would be concurrent to each other.

23.  As for the sentences in the nine theft charges, I follow the approach by Stock VP (as he then was) in the case of Ngai Yiu Ching, CACC 107 of 2011 referred to in paragraph 81 of the judgement in HKSAR v Cheng Chi Wai CACC 94 of 2011.

24.  In the Ngai Yiu Ching case, Stock VP explained the role of the totality principle as follows:-

“The importance of the totality principle cannot be overstated. It is there to ensure not only fairness to the offender, in the sense that he is not punished twice for the same offence and, further, that the sentence is not an unduly crushing punishment, but it is also a tool by which to ensure that the overall effect of the sentences is sufficient, having regard to the usual principles of deterrence, rehabilitation and denunciation.”

25.  Paragraph 82 of the same judgment, reads:-

“Here there can be no doubt that each offence represents a different episode of criminal activity and each offence adds to the overall culpability of the respondent. Not to increase his sentence to reflect this additional culpability would allow him to escape punishment for his crimes. We are of the view that a further 1-year imprisonment will provide a sentence which is “sufficient having regard to the usual principles of deterrence, rehabilitation and denunciation” but which will not be unfair to, or crushing on, the respondent. It will be both a just and a fair sentence.”

26.  I therefore order that 2 years and 1 month of sentence of the 8th charge shall run concurrent to the sentence in the 9th charge.  1 month shall run consecutive to the sentence in the 9th charge.  Sentence for the 8th and 9th charge is therefore 2 years and 3 months.

27.  Similarly, 2 years and 1 month sentence for 7th charge shall run concurrent to the sentence for the 8th and 9th charge and 1 month of the sentence of the 7th charge shall run consecutive to the sentence in the 8th and 9th charge, making the total sentence for the 7th, 8th and 9th charge to be 2 years and 4 months. 

28.  And again 2 years and 1 month of the sentence for the 6th charge shall run concurrent to the sentence for 7th, 8th and 9th charge.  1 month of sentence for the 6th charge shall run consecutive to the sentence for the 7th, 8th and 9th charge, making total sentence for the 6^th to 9^th charge to be 2 years and 5 months. 

29.  Again 2 years and 1 month for sentence for the 5th charge shall run concurrent to the sentence for the 6th, 7th, 8th and 9th charge.  1 month of the sentence in the 5th charge shall run consecutive to the sentence in the 6th to 9th charge, making total sentence for the 5th to 9th charge to be 2 years and 6 months.

30.  Again 2 years and 1 month of sentence for the 4th charge shall run concurrent to the sentence for the 5th, 6th, 7th and the 8th and 9th charge, and 1 month of the sentence for the 4th charge shall run consecutive to the sentences in the 5th to 9th charge, making a total sentence for the 4th to 9th charges to be 2 years and 7 months.

31.  Again 23 months and 20 days sentence for the 3rd charge shall run concurrent to the sentence for the 4thto 9th charge, and 1 month of the sentence in the 3rd charge shall run consecutive to the sentence in the 4th to 9th charge, making a total sentence for the 3rd to 9th charge to be 2 years and 8 months. 

32.  Again 23 months and 20 days of sentence for the 2nd charge shall run concurrent to the sentence for the 3rd to 9th charge, and 1 month of the sentence in the 2nd charge shall run consecutive to the sentence in the 3rd to 9th charge, making a total sentence for the 2nd to 9th charge to be 2 years and 9 months.

33.  And for the sentence in the 1st charge, 23 months and 20 days of sentence of the 1st charge would be concurrent to the sentences in the 2nd to 9th charge, 1 month of which would be consecutive to the sentence in the 2nd to 9th charge, making the total sentence for the 1stto 9th charge to be 2 years and 10 months.

34.  As I have said earlier, the sentences for the 10th, 11th, 12th and 13th charge will run concurrent to each other.  Although the nature of these offences are different from the nature of offences from the 1st to the 9th charge and in principle, the sentences for these two sets of charges should be consecutive but having regard to the totality principle, I would order that 2 months of the sentence for the 10th to 13th charge shall run concurrent to the sentence for the 1st to 9th charge.  The rest of the sentence for 10th, 11th, 12th and 13th charge shall run consecutive to the 1st to 9th charges’ sentence, making a total overall sentence for the 1st to 13th charge to be a total of 3 years.   

35.  I have already ordered that there be a fine for the 14th charge and, in default, 1 day of imprisonment. 

36.  I also order that the defendant shall pay the car owner in the 4th charge, Luk King Leung, the owner of PX4825 who has not yet recovered his car, criminal compensation in the sum of $9,500.  I understand the defendant has conceded that the cost or the street value of that vehicle is actually $10,000.

37.  But since Mr Luk is only asking for $9,500, I would order accordingly.