HKSAR v. WONG CHUN HO

DCCC 245/2021

[2021] HKDC 822

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 245 OF 2021

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Reasons for Sentence

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1.  The defendant has pleaded guilty to Charges 1 to 6 and Charge 8. Charge 7 was left on the court file, not to be dealt with unless there is leave from this court or the Court of Appeal.

2.  Charges 1 to 4 are theft offences.  The particulars are as follows.  The defendant, on a day unknown between 6 and 7 September 2020, stole a motorcycle from a parking space in Tuen Mun worth $34,000 (Charge 1).  The defendant, on a date between 19 and 23 September 2020, stole a motorcycle parked in Kwai Chung worth $18,000 (Charge 2).  The defendant, on 1 October 2020, stole a motorcycle parked in Tsuen Wan worth $33,800 (Charge 3).  The defendant, on 5 October in Tin Shui Wai, stole a motorcycle worth $20,000 (Charge 4). 

3.  Charge 5 and 6 are driving offences.  On 19 October 2020, the date the defendant was arrested, he was driving the stolen motorcycle of Charge 4 on a road when he was not the holder of a valid driving licence (Charge 5).  It follows that he was using the same motorcycle on a road without third party insurance (Charge 6). 

4.  When arrested, he was in possession of instruments fit for unlawful purposes, namely two skeleton keys with intent to use the same for unlawful purpose (Charge 8). 

The Facts

5.  In all the four theft offences, the owners of the respective motorcycles left their vehicles parked and locked only to find when they returned that they had been stolen.  All four owners made police reports.

6.  The police identified the defendant from CCTV footage of an industrial building in Tsuen Wan where the victim of Charge 3 had parked his motorcycle.  The victim parked it on a rear lane outside that building.  The police obtained the CCTV footage of a security camera from that building and examined it.  The CCTV footage showed the defendant and a female stealing the motorcycle of Charge 3 at about 21:05 hours on 1 October 2020. 

7.  The police mounted an anti-crime operation in that same area on 12 October 2020 and spotted the defendant driving the stolen motorcycle of Charge 4 in that area with a female on the back of the same motorcycle.  The victim of Charge 4 had had his motorcycle stolen some eight days earlier.  The police recognised the defendant from the CCTV footage obtained earlier.  The police then followed the motorcycle in an unmarked police vehicle until they lost sight of it outside the entrance of Nam Hang Pai Village in Yuen Long.

8.  On 19 October 2020, the police mounted a similar anti-crime operation in the area of that village.  At about 2 pm, a police officer saw the defendant on his own, driving the stolen motorcycle of Charge 4 out of the village, and followed him in an unmarked police vehicle.  He lost sight of him after following him for about 25 minutes. 

9.  However, about an hour later that same police officer found that stolen motorcycle parked outside Tuen Mun Hospital Ambulatory Care Centre.  He kept it under observation and about 10 minutes later he saw the defendant drive it again.  He also saw another man driving the stolen motorcycle of Charge 2 and a woman driving the stolen motorcycle of Charge 1 alongside the defendant.  That police officer followed all three motorcycle drivers in an unmarked police vehicle to Tai Hing Estate Car Park where they all parked and alighted all three stolen motorcycles together.  They then entered a restaurant nearby. 

10.  That police officer arranged for colleagues to assist him to prepare to arrest all three drivers.  At about 4.18 pm that day, all three drivers were seen leaving the restaurant and returning to the car park.  They were intercepted by the police.  The defendant was searched and the police found two skeleton keys in his possession. 

11.  In a subsequent video-recorded interview, under caution, the defendant admitted that he had stolen all four motorcycles.  He informed the police that five days after stealing the motorcycle of Charge 3, he drove it to Tsim Sha Tsui and parked it on a street.  When he returned after eating a meal, it had been stolen again.

12.  The man arrested driving the stolen motorcycle of Charge 2 and the woman arrested driving the stolen motorcycle of Charge 1 were his friend and girlfriend respectively.  All three live together in premises in Nam Hang Pai Village.  He said neither the man nor woman knew that the motorcycles they were driving were stolen.  The defendant also admitted he did not hold any valid driving licence and that the two skeleton keys found on him were to help him steal motorcycles. 

Mitigation

13.  The defendant is 40 years old, divorced with twins living with his ex-wife, and was working as a transportation worker at the time of his arrest.  He is not a man with a clear record.  He has 23 previous convictions from 17 court appearances which cover the Magistracy Courts, District Court and the Court of First Instance.  11 of those convictions are related to offences of dishonesty, including taking a conveyance without authority when he was 15 years old.  At the same time, he was convicted of driving without a valid driving licence and using a motor vehicle on a road without third party insurance.  Also in 2018, he was sentenced to a drug addiction treatment centre order for possession of dangerous drugs. 

14.  I have heard full mitigation, read the defendant’s letter, and Mr Keung has said all he can say on behalf of the defendant.  His best mitigation is his plea.  He submits that the defendant fully co-operated with the police and indicated his plea at the earliest opportunity.  In fact, without his full confession there may have been insufficient evidence to support the prosecution of Charges 1 to 6. 

15.  Counsel submits that a 2-year starting point for stealing a motorcycle is appropriate and that the theft charges should be dealt with concurrently, as should the remainder.  He points out that some of the victims have had their property recovered. 

Reasons for Sentence

16.  There are no guidelines for offences of theft of vehicles and starting points will depend on the facts of each case.  The Court of Appeal has said often that deterrent sentences are required for the theft or handling of motor vehicles.  Such an offence calls for an immediate custodial sentence of considerable length to act as a deterrent. 

17.  The value of the vehicle is a relevant factor. In HKSAR v Fan Chi Wai, CACC 343/2015, leave to appeal against a sentence of 2 years and 6 months’ imprisonment imposed by this court was refused for handling a stolen motorcycle worth some $40,000.  The appellant had modified the motorcycle after stealing it so no ignition key was required.  I add here that ultimately the appeal was dismissed. 

18.  In this case, the defendant had stolen a total of four motorcycles in a period of about six weeks.  This would have caused huge inconvenience to the victims for either work or their personal lives.  He and his friends were arrested riding three of the four.  Ironically, the fourth had been stolen from the defendant. 

19.  I also take into account he was arrested with skeleton keys on him with an intention to use them to specifically steal motorcycles. 

20.  I have taken into account all that has been said in mitigation, his background, life of crime, as well as the facts here and the number of motorcycles stolen and their values.

21.  For Charges 1 and 2, I take a starting point of 2 years’ imprisonment.  However, for Charges 3 and 4, I take a higher starting point for the fact that he has repeated the same offence.  For Charge 3, I take a starting point of 2 years and 3 months, and for Charge 4, I take a starting point of 2 years and 6 months.

22.  For driving without a valid driving licence, Charge 5, I take a starting point of 3 months’ imprisonment.  The defendant drove on the road without third party insurance, Charge 6, and I find an appropriate starting point to be 9 months’ imprisonment. 

23.  The police found him in possession of instruments fit for unlawful purposes, namely skeleton keys used to steal motorcycles.  For Charge 8, I take a starting point of 18 months’ imprisonment.

24.  The defendant has pleaded guilty at the earliest opportunity and is entitled to the full discount after plea. 

25.  Therefore I sentence the defendant to the following:

Charges 1 and 2, 16 months’ imprisonment;

Charge 3, 18 months’ imprisonment;

Charge 4, 20 months’ imprisonment;

Charge 5, 2 months’ imprisonment;

Charge 6, 6 months’ imprisonment;

Charge 8, 12 months’ imprisonment.

26.  I have taken into account the totality principle.  The four theft charges were committed on different dates and locations, albeit within a period of six weeks.  Nevertheless, they call for partial consecutive sentences. 

27.  Charges 5, 6 and 8 arise out of the circumstances of the arrest of the defendant.  In my assessment, an overall sentence of 30 months’ imprisonment should adequately reflect the overall criminality of all the charges.

28.  In order to achieve this, I order 2 months of Charges 1, 2 and 3 to be served consecutively to Charge 4, that is, I add 6 months to Charge 4.  I also order 4 months of Charge 8 to be served consecutively to Charge 4.  The balance of all charges will be served concurrently.  Therefore, the defendant will serve a total of 30 months’ imprisonment. 

29.  I must consider a disqualification period for the offence of driving without third party insurance.  I impose a 12-month disqualification period which runs from today.  The defendant is disqualified from driving any class of vehicle.  That includes taking a driving test.  He is warned that if he drives whilst disqualified that this will most likely attract a further term of imprisonment.