HKSAR v. KWAN CHI LEUNG

DCCC 44/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 44 OF 2015

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Reasons for Sentence

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1.  The defendant pleaded guilty before me to one count of taking conveyance without authority (TCWA) - the conveyance was a goods van - contrary to section 14 of the Theft Ordinance (Charge 1); and one count of possession of dangerous drugs. The drugs concerned are 14 tablets containing 0.11 gramme of nimetazepam and 0.008 gramme of nitrazepam, contrary to section 8 of the Dangerous Drugs Ordinance (Charge 2).

2.  The prosecution case was that in the evening of 9 September 2014, Mr Kwok, the owner of the van, parked the van at Hiu Kwong Street, Sau Mau Ping.  He left the car key in the ignition for the sake of convenience and locked it before leaving.  At about 6 o’clock in the following morning, Mr Kwok returned to fetch his van but found it missing.  A report was made to the police.

3.  Later in the afternoon, about 1.30, the defendant was seen by a police officer driving the van into a car park at the Yuen Long Plaza, Yuen Long where the defendant left the van there and walked away.  Instead of taking action then and there, the police lay in wait until the defendant returned to fetch the van later in the evening.  The officers intercepted the defendant.  A scuffle ensued, and eventually the police officers were able to put the defendant under control.  The police also found on the defendant the drugs as particularised in Charge 2. 

4.  The defendant, aged 35, has 10 previous convictions, nothing similar to TCWA but four of them are drug-related: two possession and one trafficking and one more for the possession of Part I poison. 

5.  The court was told that the defendant and his friend came upon the van by chance, and his friend got into the van, and the defendant drove it for a ride.  It was submitted the van was an old car.  The defendant had no intention to keep it for long. 

6.  Originally, the defendant faced a charge of handling stolen goods, contrary to section 24 of Theft Ordinance which carries a maximum sentence of 14 years.  But at the beginning of the trial, the prosecution amended the charge to one of TCWA which carries a maximum of 7 years. 

7.  Defendant pleaded guilty to it and admitted the facts which include what he said under caution, words to the effect that he knew the van was stolen and he was asked by others to drive it to Temple Street.  Upon probing by the court whether the original facts agreed to by the defendant truly reflected a case of TCWA, because the mischief section 14 (TCWA) was aimed at is stealing a ride, the facts were then amended by the parties by deleting what the defendant had said under caution and adding instead a statement that “on 10 September 2014, defendant drove the van away from Hiu Yuk Path to Yuen Long.  At all times, defendant used the van for his own use.”

8.  Had the original facts been placed before the court, I would have considered it a case tantamount to handling and would therefore have taken 3 years as starting point.  Now the prosecution amended the facts in this manner,  though I have grave doubt about the version of event put forward by the defence, in particular when defendant said he had no intention to keep it for long (Had it not been for the fact that he was arrested by the police, I think he would have driven the van for a much longer time),I can go no further than treating it as a case of stealing a ride. 

9.  Given the facts as they are before the court, I take 9 months as starting point.  For the drugs offence, the court is told that the drugs are a kind of sleeping pills.  Given the relatively low quantity and considering that this is his fifth time committing offence relating to drugs, I take 1 ½ month as starting point.  

10.  As far as mitigation is concerned, apart from his guilty plea, there is not any mitigation of substance.  He is entitled to one-third discount, and the final sentence comes to, for Charge 1, 6 months; Charge 2, 1 month.  These two are distinct offences.  I order that both terms be run consecutive to each other.  The total term is one of 7 months’ imprisonment.

11.  Now I come to the question of disqualification. There is clear evidence that the defendant had driven the van in question.  For example, he drove the van from Hiu Yuk Path to Yuen Long on 10 September 2014.  Obviously, he did that without insurance.  By virtue of section 69 of the Road Traffic Ordinance, I order that the defendant be disqualified from holding or obtaining driving licence for any classes of vehicle and from driving any vehicles for a period of 1 year.