HKSAR v FUNG CHUN HO (also known as FUNG YIN HO)

DCCC 328 & 617/2022

[2022] HKDC 1247

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 328 OF 2022

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IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 617 OF 2022

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REASONS FOR SENTENCE

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DCCC 328/2022

1.  The defendant pleads guilty to:-

(1)  7 charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charges 1 to 7);

(2)  3 charges of forgery of a document, contrary to section 111(1)(a)  of the Road Traffic Ordinance, Cap 374 (Charges 8 to 10);

(3)  1 charge of forgery of a document, contrary to section 111(1)(b)  of the Road Traffic Ordinance, Cap 374 (Charge 11);

(4)  3 charges of driving without a valid driving licence, contrary to section 42(1)  and (4)  of the Road Traffic Ordinance, Cap 374 (Charges 12 to 14); and

(5)  3 charges of using a motor vehicle without third party insurance, contrary to section 4(1)  and (2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance , Cap 272 (Charges 15 to 17).

Summary of Facts

2.  On 16 October 2021, police officers were conducting anti-crime patrol.  At around 0735 hours, the defendant was seen ransacking the storage box of a motorcycle (“M1”)  parked in the vicinity of the rear lane of Hong Kong Pacific Centre, Tsim Sha Tsui (“L”).  D was intercepted.  There were another motorcycles, namely M2, M3 and M4 at the scene.

3.  Upon investigation, M1 was found with no vehicle plate nor vehicle license.  M2 was covered by motorcycle cover and affixed only with rear car plate of XF9482 (“M2 False Car Plate”).  According to the vehicle license of M2, its registration number was VJ9087.  M3 was affixed with car plate of TJ5034 (“M3 False Car Plate”)  and its vehicle license (“M3 False Vehicle License”), which did not belong to M3.  M4 was fixed with a false car plate of VR3379 (“M4 False Car Plate”)  and vehicle license (“M4 False Vehicle License”). A car plate of VR6069 was also found on M4.  The CCTVs of the vicinity of L captured the defendant drove M2, M3 and M4 to L on 16 October 2021.

4.  Under caution upon arrest, the defendant stated that due to lack of money, he stole components from the motorcycles for selling.

5.  During subsequent video-recorded interview, D stated under caution that:-

(a)  He did not have any driving license in respect of motorcycle. He could not make a living so he stole motorcycles and drove them away.

(b)  He stole M1 from Yau Ma Tei and drove M1 to L for dismantling its components for selling.

(c)  He stole M2 from Yiu Tung Estate and drove M2 to L. He worried that the original registration number of M2 could be recognized so he stole M2 False Car Plate and then affixed it on M2.

(d)  He stole M3 from Kowloon district and then affixed M3 False Car Plate on M3. He also stole M3 False Vehicle License from another car.

(e)  He stole M4 from Pak Tin Estate. He affixed M4 False Car Plate on M4. He stole M4 False Vehicle License from another motorcycle. He did not steal VR6069 Plate, which was ordered to be made by him.

6.  The defendant affixed the stolen number plate and/or vehicle licence on M2, M3 and M4 with intention to deceive.  The defendant possessed VR6069 Plate, which was so closely resembling a document, with intention to deceive.

7.  The defendant did not hold any valid driving licence.  So, he was driving M2, M3 and M4 without a valid driving licence for motorcycle.  Also, at the material times when he drove M2, M3 and M4, no valid policy of insurance complying with the requirements of the Motor Vehicles Insurance (Third Party Risks)  Ordinance was in force.

Mitigation

8.  The defendant is 45 years old, was born and raised in Hong Kong.  He received education up to Form 2.  Prior to the arrest in this case, he worked as a petrol station attendant at the Kowloon Motor Bus Company and was earning $15,000 per month.  He resides with his retired parents and would contribute $7,000 to them.

9.  At the material time, the defendant was struggling financially and committed the present offences out of greed.  His intention was to sell the parts of the motorcycles for money.  Now, he is remorseful for what he did.  He, his sister and a priest wrote mitigation letters asking for a lenient sentence.

10.  He had 18 previous conviction records and 3 of them were dishonesty related. 

Theft of vehicle

11.  There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are required.  As was said in HKSAR v Cheng Chun Ming[1]:-

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

12.  In Cheng Chun Ming, the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic. 

13.  In HKSAR v Fan Chi Wai[2] leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required.

Theft of a motorcycle (charges 1, 2, 3 and 6)

14.  In this case, value of the stolen motorcycle was unknown.

15.  I am satisfied the proper starting point after trial for the theft of a motorcycle is 2 years and 3 months’ imprisonment.  Although the defendant has a criminal record, most of them were dangerous drugs related and only 3 of them, respectively in 1993, 2005 and 2021, were dishonesty related.  Although I notice that he committed the present offences shortly after his last conviction in which a suspended sentence was imposed, I do not enhance the sentence by reason of previous offending. I am told that the defendant was on police bail at the time when he committed the offence, and therefore decide to increase the sentence by 3 months to 2 years and 6 months’ imprisonment.  Also, there is no reason for me not to activate his suspended sentence.

16.  Apart from a guilty plea, I fail to find any reason to reduce the sentence.  Giving the defendant full credit for his plea of guilty, the sentence of each of charges 1, 2, 3 and 6 is 1 year and 8 months’ imprisonment.

Theft of vehicle license or number plate (charges 4, 5 and 7)

17.  There are no guidelines for offences of theft of vehicle license or number plate.  I am satisfied the proper starting point after trial is 3 months’ imprisonment.  Giving the defendant credit for his plea of guilty, sentence of each of charges 4, 5 and 7 is 2 months’ imprisonment.

Forgery of a document (charges 8, 9, 10 and 11)

18.  I regard the use of a false number plate and/or vehicle licence to avoid detection as a serious offence.  The only reason for a false number plate or vehicle licence was affixed on M2, M3 and M4 and the possession of car plate of VR6069 was to avoid detection.

19.  I am satisfied the proper starting point after trial is 6 months’ imprisonment.  Giving the defendant credit for his plea of guilty, sentence of each of charges 8, 9, 10 and 11 is 4 months’ imprisonment.

Driving without a valid driving licence and using a motor vehicle without third party insurance (charges 12, 13, 14, 15, 16 and 17)

20.  Riding a motorcycle having never passed a test of competence to drive any motor vehicle and without insurance places all other road users at risk. Taking into account the defendant has a clear traffic record I am satisfied short terms of imprisonment are appropriate. 

21.  I am satisfied a starting point of 1½ months’ imprisonment is appropriate for driving without a valid driving licence and 3 months’ imprisonment for using a vehicle without third party insurance.  Giving the defendant full credit for his pleas of guilty, sentence of each of charges 12, 13 and 14 is 1 month’s imprisonment and each of charges 15, 16, and 17 is 2 months’ imprisonment. 

Disqualification

22.  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.  I find no special reasons not to disqualify the defendant.

23.  The main purpose of disqualification being forward-looking and preventive rather than backward-looking and punitive.  There is no evidence to suggest the defendant shows a real risk on the roads and I am satisfied that a period of 1 year’s disqualification is appropriate.  For each of charges 15, 16 and 17, the defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 1 year. 

Totality

24.  In my view sentence must reflect that the defendant stole 4 motorcycles. I am satisfied concurrent sentences are appropriate for driving without a valid driving licence and using a motor vehicle without third party insurance, both offences having been committed at the same time.  I am satisfied that affixing a false number plate and/or vehicle licence to avoid detection add to the culpability of the defendant on the theft charges.  I bear in mind the totality principle before sentence.

25.  The defendant is sentenced as follows:-

Charge 1 – 1 year and 8 months’ imprisonment.

26.  In respect of charges 6, 7, 8, 12, 15, the defendant is sentenced as follows:-

Charge 6 – 1 year and 8 months’ imprisonment;

Charge 7 – 2 months’ imprisonment;

Charge 8 – 4 months’ imprisonment;

Charge 12 – 1 month’s imprisonment;

Charge 15 – 2 months’ imprisonment, with 1 year disqualification order.

27.  The sentences on charges 6, 7, 12 and 15 are to be served concurrently.  The sentence on charge 8 is 4 months’ imprisonment with 2 months consecutive to charges 6, 7, 12 and 15.

28.  The sentences on charges 6, 7, 8, 12, 15 are 1 year and 10 months’ imprisonment with 3 months consecutive to charge 1.

29.  In respect of charges 2, 5, 9, 13 and 16, the defendant is sentenced as follows:-

Charge 2 – 1 year and 8 months’ imprisonment;

Charge 5 – 2 months’ imprisonment;

Charge 9 – 4 months’ imprisonment;

Charge 13 – 1 month’s imprisonment;

Charge 16 – 2 months’ imprisonment, with 1 year disqualification order.

30.  The sentences on charges 2, 5, 13 and 16 are to be served concurrently.  The sentence on charge 9 is 4 months’ imprisonment with 2 months consecutive to charges 2, 5, 13 and 16.

31.  The sentences on charges 2, 5, 9, 13 and 16 are 1 year and 10 months’ imprisonment with 3 months consecutive to charges 1, 6, 7, 8, 12, and 15.

32.  In respect of charges 3, 4, 10, 14 and 17, the defendant is sentenced as follows:-

Charge 3 – 1 year and 8 months’ imprisonment;

Charge 4 – 2 months’ imprisonment;

Charge 10 – 4 months’ imprisonment;

Charge 14 – 1 month’s imprisonment;

Charge 17 – 2 months’ imprisonment, with 1 year disqualification order.

33.  The sentences on charges 3, 4, 14 and 17 are to be served concurrently.  The sentence on charge 10 is 4 months’ imprisonment with 2 months consecutive to charges 3, 4, 14 and 17.

34.  The sentences on charges 3, 4, 10, 14 and 17 are 1 year and 10 months’ imprisonment with 3 months consecutive to charges 1, 6, 7, 8, 12 and 15 and 2, 5, 9, 13 and 16.

35.  In respect of charge 11, the defendant is sentenced as follows:-

Charge 11 – 4 months’ imprisonment.

36.  The sentence on charge 11 is 4 months’ imprisonment with 2 months to be served consecutively to all other charges.

37.  The total sentence is therefore 2 years and 7 months’ imprisonment. The disqualification order is to be run concurrently.

38.  I find no reason not to activate the suspended sentence imposed by the Magistrate Court in KCCC 1601/2021 on 10 September 2021 for a theft charge in which the defendant was sentenced to 3 weeks’ imprisonment suspended for 2 years.  The 3 weeks’ imprisonment is now activated and to be served consecutive to DCCC 328/2022.

DCCC 617/2022

39.  This case was heard together with DCCC 328/2022 in which the defendant was sentenced to a total of 2 years and 7 months’ imprisonment upon his guilty plea to a total of 17 charges, including the theft of 4 motorcycles.  The personal background of the defendant and the proper sentence for a theft of motorcycle are stated in the Reason for Sentence in DCCC 328/2022 and no repetition is needed.

40.  In this case, the defendant pleads guilty to 1 charge of attempted theft, contrary to section 9 of the Theft Ordinance, Cap 210 and section 159F of the Crimes Ordinance.

Summary of Facts

41.  On 9 July 2020, Ms Li parked her motorcycle (“M5”)  at the parking space near Hoi Ning Street and did not return until 9 September 2020 when she found M5 was missing.

42.  At around 2355 hours on 21 September 2020, police officers were conducting anti-crime patrol and saw the defendant wandering around the motor cycle parking area near the junction of Bute Street and Shanghai Street, Mongkok (“Parking Area”).  The defendant then approached a motorcycle which was subsequently confirmed as M5.  At the time, the seat storage compartment of M5 was open and the defendant fiddled with the ignition switch area of M5.  Under enquiry, the defendant took out a key (“the Key”)  to open the seat storage compartment of M5 and also turned on the front light with the key.  A helmet with the fingerprint of the defendant was found in the seat storage compartment.

43.  During the video-recorded interview, the defendant admitted under caution that he just picked up the Key on the night of 21 September 2020.  When he walked to the Parking Area, he saw a nice motorcycle and intended to steal it for fun.  When he approached the motorcycle, he used the Key to open the seat storage compartment intending to search for another key.  At that moment, the police officer arrived.  At all material times, the defendant attempted to steal M5.

Mitigation

44.  In mitigation, the defendant admits that his intention was to sell the parts of the motorcycle for money.  Now, he is remorseful for what he did.

Sentence

45.  I am satisfied the proper starting point after trial for the attempted theft of a motorcycle is 2 years and 3 months’ imprisonment.  Apart from a guilty plea, I fail to find any reason to reduce the sentence.  Giving the defendant full credit for his plea of guilty, the sentence is 1 year and 6 months’ imprisonment.

Totality

46.  The sentence of DCCC 617/2022 is 1 year and 6 months’ imprisonment with 3 months consecutive to the sentence in DCCC 328/2022, and for the sake of avoidance of doubt, also consecutive to the suspended sentence activated in DCCC 328/2022.