HKSAR v. NG TAK YIN AND ANOTHER

DCCC 1148/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1148 OF 2016

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REASONS FOR SENTENCE

1.  D1 pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance[2] (charge 2); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance[3] (charge 3) and one charge of taking a conveyance without authority, contrary to section 14 of the Theft Ordinance (charge 5).

2.  D2 pleads guilty to one charge of handling stolen goods, contrary to section 24 of the Theft Ordinance (charge 4).

3.  Full particulars of the offences are set out in the facts admitted by you on 24 March 2017.  In summary in the early hours of 13 October last year the night shift driver of taxi KH 174 parked the taxi in the parking space outside No. 61 Lung Kong Road in Kowloon City.  At 7:30 a.m. the morning shift driver went to collect the taxi, only to find the taxi had been stolen.  A report was made to the police. 

4.  Around 4:25 p.m. the same day the taxi was located outside the Robert Black Methadone Clinic on Yuk Kwan Street in Wong Tai Sin.  The night shift driver went to check the taxi and found the left rear passenger door window had been broken and a coin box with around $400; a Samsung mobile phone and a spare key for the taxi missing. 

5.  At around 6:02 p.m. on the 15 October D2 was arrested when the police saw him acting furtively outside the clinic.  Under caution D2 said D1 had stolen the taxi and given him some money and a Samsung mobile phone taken from the taxi. 

6.  D2 was then taken to his home where he pointed out D1 and gave the police the Samsung mobile phone.  In a later video interview D2 said D1 had given him about $100 which he had spent on food.

7.  D1 was arrested and admitted under caution and in a subsequent video interview that he broke open the window of the taxi; stole a few hundred dollars’ worth of coins and the Samsung mobile phone; and on finding the spare car key drove the taxi to the methadone clinic. 

Mitigation

8.  In passing sentence, I take into account everything said on behalf of D1 by Ms Cheng and on behalf of D2 by Mr Li.

D1

9.  Ms Cheng informs the court that your initial intention was only to steal from the taxi but having found the spare key you decided to drive the taxi because you needed to go to the clinic.  Having no plan to resell the taxi you abandoned the taxi after driving to the clinic. 

10.  There are no guidelines for offences of theft from vehicle and taking conveyance without authority.  They are serious offences for which immediate custodial sentences are appropriate, a fact that you are well aware of.  Each case depends on its own facts including the value of the property stolen from the vehicle and whether the vehicle was taken for a joy-ride or for the purpose of committing serious crime.

11.  I am satisfied a starting point of 12 months imprisonment is appropriate for theft from vehicle and 9 months imprisonment for taking conveyance without authority.

12.  A starting point may be increased where the defendant is a persistent offender.  You have appeared in court on 45 occasions, amassing a total of 102 convictions, 58 of which are for theft from vehicle, 3 for taking conveyance without authority and 16 other convictions for offences of dishonesty.  You are properly regarded as a persistent offender. 

13.  Applying the principles in HKSAR v Chan Pui Chi[4] I am satisfied the starting point for each offence is to be increased by 3 months to 15 months imprisonment for theft from vehicle and 12 months imprisonment for taking conveyance without authority.  Giving you full credit for your pleas of guilty you are convicted and sentenced on charge 1 to 10 months imprisonment and on charge 5 to 8 months imprisonment. 

14.  The two offences arising out of the same incident Ms Cheng submits concurrent sentences are appropriate.  Although the two offences arise out of the same facts they are separate and distinct offences for which consecutive sentences are appropriate.  Considering totality of sentence, I order 4 months of the sentence on charge 5 to be served consecutively to the sentence on charge 1 with 4 months concurrent, making a total sentence on the two charges of 14 months imprisonment.

Driving without a valid driving licence and using a vehicle without third party insurance

15.  Taking into account the circumstances you came to drive the taxi and that you have no similar convictions, I am satisfied a starting point of 3 months imprisonment is appropriate for both offences.  Giving you full credit for your pleas of guilty you are convicted and sentenced on charge 2 to 2 months imprisonment and on charge 3 to 2 months imprisonment.

16.  Considering that the two offences arise from the taking of the taxi and the totality of sentence, I am satisfied concurrent sentences are appropriate.  I order the sentence on charges 2 and 3 to be served concurrent with each other and concurrent with charges 1 and 5. 

17.  You will therefore serve a total sentence of 14 months imprisonment, which I am satisfied properly reflects your criminality on the four charges. 

Disqualification

18.  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.

19.  This being your first conviction for using a vehicle without third party insurance I am satisfied the minimum period of 12 months disqualification is appropriate.  On charge 3 you are disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 12months from today. 

20.  I am told that you have lost your driving licence.  If you subsequently find your licence this must be surrendered to the Transport Department.  You are warned that after serving your prison sentence you will still be disqualified from driving.  Driving whilst disqualified is a serious offence which attracts immediate imprisonment.

D2

21.  Mr Li informs the court that you were not aware at the time of the theft from the taxi and only learnt of this later in the morning when D1 gave you the coins and the mobile phone. 

22.  There are no guidelines for handling stolen goods.  In passing sentence, I take into account the aggravating and mitigating factors identified in R v Bernard Webbe[5]as applied in HKSAR v Xiao Wei[6]. The court in Webbe listed nine factors which may be regarded as aggravating the offence.

23.  Mr Li relying on HKSAR v Cheng Po Kei[7]submits a starting point of less than 18 months imprisonment is appropriate.  In Cheng Po Kei the appellant handled a watch valued at $800, which had been stolen in a burglary.  In my view the primary offence in Cheng Po Kei being burglary is more serious than theft from vehicle.   

24.  Taking into account the handling took place shortly after the theft; you knew the stolen property came from a taxi which D1 had taken without the authority of the owner; the property handled by you was cash of about $100 and a mobile phone valued at a few hundred dollars; and that the mobile phone was recovered, I am satisfied a starting point of 9 months imprisonment is appropriate.  Giving you full credit for your plea of guilty reduces the sentence on charge 4 to 6 months imprisonment.

25.  Mr Li asks for further discount by reason of your cooperation with the police leading to the arrest of D1.  Similarly, in Cheng Po Kei the appellant identified the burglar for which additional discount was given.  I am satisfied the sentence should be reduced by 1 month.  You are convicted and sentenced to 5 months imprisonment.