HKSAR v. YIP JUN TING, TYSON

DCCC 532/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 532 OF 2016

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REASONS FOR SENTENCE

D1 pleaded guilty to 2 charges of "Theft" (Charges 1 and 4); 2 charges of "Driving without a valid driving licence" (Charges 2 and 5); 2 charges of "Using a motor vehicle without third party insurance" (Charges 3 and 6); and 1 charge of "Possession of a dangerous drug" (Charge 7).

Summary of Facts

Charges 1 to 3

2.  Mr. LEUNG (PW2) is an employee of Mr. FUNG (PW1). About 7:30 p.m. on 2 February 2016, PW2 parked motorcycle EY 9878 ("Motorcycle 1") outside Kar Po Mansion, Kwong Fai Circuit, Kwai Chung. 

3.  About 11:00 p.m. on 3 February 2016, PW2 returned to Kar Po Mansion and discovered Motorcycle 1 missing (Charge 1).  He informed PW1 and the Police was alerted.

4.  In the afternoon on 6 February 2016, PW1 saw an unknown male riding on Motorcycle 1 in Mongkok.  He tried to intercept them but was unsuccessful.  He then informed the Police of the incident.

5.  In the evening on the same day, the Police found Motorcycle 1 at the carpark of Westlands Garden, Quarry Bay.  PW1 later confirmed the identity of Motorcycle 1.  He also discovered that the helmet found inside the storage compartment of Motorcycle 1 did not belong to him or PW2.  At the same time, PW2 found a helmet originally placed inside the storage compartment missing.

6.  D1 was arrested by the Police on 17 February 2016 initially in connection with Charges 4 to 7.  In his cautioned interview, D1 admitted stealing Motorcycle 1 at Kwai Chung with an ignition key milled by him.  He drove Motorcycle 1 from Kwai Chung to Quarry Bay and parked it at the carpark of Westlands Garden.  He returned to Westlands Garden 1 or 2 days later and discovered the Police having locked Motorcycle 1.  As a result, he left the carpark.

7.  D1 did not hold a valid driving licence and drove Motorcycle 1 without third party insurance (Charges 2 and 3).

Charges 4 to 7

8.  In the afternoon on 10 February 2016, Mr. YEUNG (PW3) parked motorcycle LL 7520 ("Motorcycle 2") near Tai Hing Sports Centre, Tuen Mun.  He had also left 2 helmets in the storage compartment of Motorcycle 2.

9.  About 9:40 p.m. on 17 February 2016, PC 6014 and other police officers saw D1 and a female (D2) leaving Tai Hing House, Quarry Bay and walking towards the Quarry Bay Municipal Services Building.  They then got on a motorcycle GL 4736 (later confirmed to be Motorcycle 2).  Motorcycle 2 was driven towards Mount Parker Road.  Due to traffic jam, it came to a stop. Police officers then approached Motorcycle 2 and intercepted D1 and D2 for enquiry.

10.  Upon search, a cigarette box which contained a glass tube with a plastic straw containing traces of a solid containing methamphetamine was found in D1's left front trouser pocket (Charge 7).

11.  D1 did not hold a valid driving licence and drove Motorcycle 2 without third party insurance (Charges 5 and 6).

12.  Under caution, D1 admitted stealing Motorcycle 2. In his video recorded interview, D1 admitted that on 13 February 2016, he stole Motorcycle 2 at Tai Hing Estate, Tuen Mun using an ignition key milled by him (Charge 4).  On the following day, he replaced the original licence plate with a false plate (GL 4736).  He also sprayed the motorcycle with black paint (its original colour was silver).  He intended to take D2 to dinner using Motorcycle 2. Regarding the methamphetamine found on him, D1 claimed that it was for his own consumption.

13.  PW3 later confirmed that Motorcycle 2 belonged to him and that its original colour was sliver.  He discovered that the 2 helmets placed in the storage compartment were missing.  On the other hand, a hammer, 2 screwdrivers, a pair of pliers and a red/black helmet were found inside the storage compartment.  Those items did not belong to PW3.

Mitigation

14.  D1 is almost 21 and has 2 conviction records, none of which is of similar nature to the present offences.  Defence counsel Mr. IU informed me that due to his father's business, D1 and his family resided in the mainland for a few years. They returned to Hong Kong when his father closed his factory.  D1 left school after completing F.3 in Hong Kong.  He then became a part-time transportation worker earning an average of $8,000 per month.  He makes regular financial contribution to his family.

15.  In mitigation, Mr. IU submitted that D1 committed the offences out of foolishness.  He stole the 2 motorcycles for joy rides.  He felt proud taking D2 out to dinner on a motorcycle.  Mr. IU stressed that no accidents took place and no one was injured.  The 2 stolen motorcycles are not sporty or expensive models; they are ordinary scooters valued at $10,000 and $6,500 respectively.  A bundle of mitigation letters was placed before me; their contents are duly noted.

Sentence

Charges 1 and 4

16.  D1 stole 2 motorcycles in less than 2 weeks using homemade ignition keys. Based on his own admissions, after he discovered that Motorcycle 1 was locked by the Police (presumably on or after 6 February), he stole Motorcycle 2 on 13 February.  Apparently, he was not deterred or alarmed by the fact the Police had found Motorcycle 1.  Worse still, after stealing Motorcycle 2, he changed its licence plate and sprayed it with a different colour.  The reason for doing so is obvious―to cover up its true identity.  Mr. IU described D1 as being foolish.  On the contrary, I see planning and premeditation.

17.  I adopt a starting point of 15 months' and 18 months' imprisonment respectively for Charges 1 and 4.  With the guilty pleas, the sentence is reduced to 10 months and 12 months respectively.  

Charges 2 and 5

18.  For a 1^st conviction of this offence, the maximum penalty is a fine of $5,000 and imprisonment for 3 months.  I will impose a fine of $3,000 for each charge.

Charges 3 and 6

19.  Not being licensed to operate a motorcycle, D1 was not only foolish in driving one on the road; he was reckless in taking on D2 as his passenger, which was a flagrant disregard of her personal safety. He has also deprived all potential victims, especially D2, of adequate financial protection in the event of a traffic accident. Immediate custodial sentences are required for both charges.  I adopt 3 months' and 6 months' imprisonment[1] as the respective starting point for Charges 3 and 6.  With the guilty pleas, the sentence is reduced to 2 months and 4 months respectively for each charge.

Charge 7

20.  In view of the extremely minor quantity of methamphetamine found and bearing in mind that D1 has no previous conviction of drug-related offences, I will impose a fine in the sum of $2,000.

Overall Sentence

21.  D1 stole 2 motorcycles in less than 2 weeks.  In the course of doing so, he further committed Charges 2, 3, 5 and 6.  For Charges 1, 3, 4 and 6, I adopt a global starting point of 2 years' imprisonment. With the guilty pleas, the overall sentence is reduced to 16 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 4 and 6 concurrent; and

(ii) Charges 1 and 3 concurrent; but 4 months consecutive to Charges 4 and 6.

22.  D1's unlicensed driving without the adequate protection of insurance renders him a serious threat and danger to other road users.  Considering the seriousness of his acts, for Charges 3 and 6, I make a disqualification order of 2 years[2] each; and they shall run concurrently from the date of conviction[3].