HKSAR v. CHAN WING KAI AND OTHERS

 DCCC1020/2009

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1020 OF 2009

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Reasons for Sentence

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1.  In this case D1 has pleaded guilty to two charges, the first being an offence of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance, Cap.210, Laws of Hong Kong.  The particulars being that on or about 18 July 2009 he had with him articles for use in the course of or in connection with burglary, namely, three screwdrivers and one crowbar. 

2.  The second offence that the 1st defendant has admitted is named as Charge 3 in the indictment and is an offence of dangerous driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap.374, Laws of Hong Kong.  The particulars being that on 18 July 2009, he drove a taxi bearing registration number FJ 6210 on a road dangerously. 

3.  D2, D3 and D4 have each pleaded guilty to the 2nd charge on the indictment which is an offence of burglary, contrary to section 11(1)(b) and (4) of the Theft Ordinance, Cap.210, Laws of Hong Kong.  The particulars being that they on 18 July 2009 entered the Chu Kee Restaurant at Ground Floor, No.38 San Tsuen Street, Tsuen Wan, and stole one cashier machine, one computer LCD monitor, six bottles of wine, an iron box containing $812.20 cash, two keys, one company chop, some receipts, one letter, one key ring with a battery and one cheque book.

4.  The facts giving rise to these offences which each defendant has admitted indicate that at about 4 o’clock in the morning of 18 July of last year the police saw a taxi, registration number FJ 6210, parked on the hard shoulder of West Kowloon Highway with the 3rd defendant standing to the rear of the taxi which had its boot open.  As the police vehicle approached,  D3 suddenly boarded the taxi and it drove off with the police vehicle following in hot pursuit. 

5.  D1 was driving the taxi and the manner of his driving has been fully set out in the facts, but included not stopping to make payment at the toll booth of the West Harbour Tunnel Crossing, doing a U-turn at the tunnel entrance and in the process knocking down traffic cones, failing to stop again at the toll booth entrance on the opposite side, doing a U-turn at Shantung Street at 30 kilometres an hour causing a private vehicle to take emergency avoiding action, crossing a double white line on Wylie Road and driving on the wrong side of the road causing another taxi to make an emergency stop in order to avoid a head-on collision and jumping red traffic lights at Yim Po Fong Street.

6.  The taxi stopped at a dead end and was intercepted by police.  The four defendants were found in the vehicle and the stolen property, which is the subject matter of Charge 2, found in the boot.  Also found in the taxi were the three screwdrivers and one crowbar which are the subject matter of Charge 1, and through his plea the 1st defendant has admitted that he had them with him for use in connection with the burglary.

7.  D2 and D3 admitted under caution that they entered the Chu Kee Restaurant and burgled it whilst the 4th defendant acted as the lookout. 

8.  With regard to you, D1, you have a very bad driving record and a number of criminal convictions including one for dangerous driving and failing to stop in 2005 when you were made the subject of a disqualification order for 6 months.  I note from your antecedents that you are a former police constable having resigned the force in 2007.  The standard of your driving this particular early morning was utterly appalling.  You had displayed no concern whatsoever for the safety of yourself, the other defendants in your taxi and other road users.  And the fact that you are an ex-police officer makes your actions that day even more serious. 

9.  The fact that it has been said on your behalf that there was no injury to other road users or property is in my judgment not a matter of proper mitigation.  It is only fortunate that nobody was seriously injured as a result of your atrocious driving.

10.  It has also been put forward on your behalf that the reason for your driving in this way and escape the police from pursuit was because you were operating under the belief that you were wanted for failing to attend a court hearing and failing to pay a fine.  Quite how this can be a mitigating factor I fail to appreciate.  But in any event I am quite satisfied that your reason for driving in this manner and escape the attentions of the pursuing police vehicle were simply because you were aware that a burglary had been committed by the other three defendants in the vehicle, that the spoils of the burglary were being carried in the boot of the car, and you were attempting to escape.  This is an aggravating feature, not a mitigating feature.

11.  On the 1st charge of going equipped with stealing, I take as my starting point a sentence of 12 months’ imprisonment.  I will discount this by one-third to take account of your plea of guilty, coming to 8 months’ imprisonment. 

12.  On the 3rd charge of dangerous driving, I take as my starting point a sentence of 18 months’ imprisonment.  But for the aggravating features that I have identified, I will enhance my starting point to a sentence of 2 years’ imprisonment.  I will similarly discount this by one-third to take account of your plea of guilty, coming to 16 months’ imprisonment on Charge 3.

13.  I order the sentences to run consecutively.  You will go to prison for 2 years.  In addition, you will be disqualified from holding or retaining a driving licence for all classes of vehicles for 2 years. 

14.  D2, you, I am satisfied, were the ringleader in this burglary.  You contacted the 3rd defendant and asked him to join in the burglary.  You have an appalling record for burglary having 7 previous convictions for burglary itself and one previous conviction for attempted burglary.

15.  It has been suggested on your behalf that I should take a lower starting point than the customary starting point for non-domestic burglaries because this was a walk-in burglary.  Whilst I accept that there was no forcible entry into these premises, this was not an opportunistic burglary akin to a sneak thief who finds that the door to the premises is ajar and simply walks in as in the case of HKSAR v Cheung To Ming CACC406/2005.

16.  This robbery was planned with the 1st defendant providing the tools, yourself and D3 gaining entry as you happened to find the key to the premises, and the 4th defendant acting as a lookout.  I also note that in the course of this burglary, the drawer beneath the cashier machine had been prized open.

17.  I see no reason to depart from the normal sentencing guideline of 2 years 6 months for burglary of non-domestic premises and indeed I do adopt that as my starting point.  However, due to your persistence in committing this sort of offence, I will enhance the starting point by 9 months to 3 years and 3 months’ imprisonment.  From this I will give you a discount of one-third to reflect your plea of guilty, coming to a sentence of 26 months’ imprisonment.

18.  D3, I take into account all that has been said on your behalf by way of mitigation.  But as Mr Shaw rightly says, the best mitigation is your plea of guilty which is an indication of your remorse.  I adopt in your case a starting point of 2 years 6 months’ imprisonment and I will discount this by one-third to take account of your plea of guilty, coming to 20 months’ imprisonment. 

19.  As far as you, D4, are concerned, your role in this burglary was limited to that of being a lookout.  I accept that you took no actual part in the burglary itself.  In order to reflect your criminality, I find that I am able to adopt a lower starting point of 2 years’ imprisonment.  This will be discounted, once again to take account of your plea of guilty, coming to 16 months’ imprisonment.