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DCCC 189/2019
[2019] HKDC 1366
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 189 OF 2019
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HKSAR |
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LEUNG FUNG YIU (D1) |
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PONG CHING LUNG (D2) |
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NAWAZ SARFRAZ (D3) |
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AHMAD FARAZ (D4) |
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| Before: |
Deputy District Judge Francis Cheng |
| Present: |
Ms Judy Ma C Y, counsel on fiat, for HKSAR |
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Ms Rachael Siu Suk Yu, instructed by Mandy Wan & Co, assigned by the Director of Legal Aid, for the 1st defendant |
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Mr David Chu Po Tien, instructed by KCL & Partners, assigned by the Director of Legal Aid, for the 2nd defendant |
| Offence: |
[1] Theft (盜竊罪) |
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[2] Conspiracy to wound with intent (串謀有意圖而傷人) |
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[3] Driving an unlicensed vehicle (駕駛未領牌車輛) |
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[4] Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車) |
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REASONS FOR SENTENCE (D1 & D2)
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CHARGES
1. There are four charges faced by the two defendants in this case.
2. The 2nd defendant individually faced one charge of theft, contrary to section 9 of the Theft Ordinance, Cap 210 (Charge 1).
3. Both defendants jointly faced one charge of conspiracy to wound with intent, contrary to section 17(a) of the Offences against Person Ordinance, Cap 212 and sections 159 A and 159 C of the Crimes Ordinance, Cap 200 (Charge 2).
4. The 1st defendant individually faced another charge of driving an unlicensed vehicle, contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap 374 (Charge 3).
5. The 1st defendant individually faced another charge of using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Insurance (Third Party) Ordinance, Cap 272 (Charge 4).
6. They pleaded guilty to all of their respective charges.
FACTS
7. The facts admitted by the defendants revealed that on the 26 October 2018, upon receiving information from a civilian, the police spotted a private car MG451 (“the Car”) with four persons onboard. The 1st defendant was the driver whilst the 2nd defendant was sitting at the front passenger seat. The Car was intercepted and subsequently searched by the police. It was found inside the Car, inter alia, gloves, facemasks, balaclavas, caps, hammers and knives.
8. The police discovered that the registration document displayed on the Car showed a registration mark of UM2100 and the document was expired. Further, upon enquiries made by the police, it was revealed that the registration mark of MG451 was not registered.
9. Both defendants were arrested by the police.
10. The 2nd defendant was subsequently interviewed by the police, during which he admitted that he received an order from “Ah Ming” to collect debt from a targeted person (“X”). Hammers were bought by the 2nd defendant. Facemasks and caps were intended to be worn in order to avoid the 2nd defendant’s group being identified. In the event that no money is collected from X, it was anticipated that the hammers will be used to hit X’s limbs. As to the Car, he did not know who the owner was. It was found by him two weeks prior to the offence of Charge 2. He found the Car to be functional and thus kept it.
11. The owner of the Car, Mr Shek Tsz Kin, was subsequently located by the police. He confirmed that he left the Car with its doors unlocked and kept the car keys therein so that his friends can borrow it. He further confirmed that he did not know the 1st or the 2nd defendant.
MITIGATION
12. Ms Rachel Siu, who appears for the 1st defendant, had prepared a very thorough written submission on his behalf. This court was told that the 1st defendant, a 24-year-old single man, used to work as a construction site worker, earning HK$20,000 per month prior to his arrest in the instant case. He was living with his parents and his elder brother.
13. This court was also told that the 1st defendant got acquainted with the 2nd defendant back in 2016. Two days prior to his arrest in the instant case, the 1st defendant was released from the Drug Addiction Treatment Centre. He met the 2nd defendant the following day and was invited by the latter to participate in the debt collection exercise in question with a reward of HK$1,000. He was tasked to be the driver and he understood at the time that should the targeted person refuse to pay the debt, those inside the Car might attack that person.
14. Ms Siu cited HKSAR v Siu Lok Man & Others, unreported, DCCC 157/2017, HKSAR v Leung Chun Man & Others, unreported DCCC 499/2015 and HKSAR v Cheung Lap Yin, unreported, DCCC 1133/2017 in her submission. It was urged on behalf of the 1st defendant that he was not the mastermind in the debt collection exercise in question. He was not the one who was responsible for arranging the transportation nor the weapons in question. There was no indication that any triads element was involved in the instant case. Ms Ma, counsel on-fiat, fairly confirmed that as from of the information revealed in the instant case, there was no triads element involved.
15. Insofar as Charges 3 and 4 are concerned, Ms Siu urged this court to consider imposing financial penalties on both as the 1st defendant committed offences of such nature only for the first time.
16. Mr Chu, on behalf of the 2nd defendant also prepared a written submission. Mr Chu adopted those authorities cited by Ms Siu.
17. This court was told by Mr Chu that the 2nd defendant, now aged 38, is a divorcee and living alone prior to his arrest in the instant case. He was a transportation worker by occupation with daily wages of HK$500.
18. The 2nd defendant had 12 convictions in the past, 5 of those were theft-related. It was appropriately pointed out by Mr Chu that in committing the offences in the instant case, the 2nd defendant was in breach of the 4-months suspended sentence imposed on him on the 3 April 2017 in ESCC 172/2017.
19. Mr Chu told this court that the 2nd defendant admitted his misdeeds to the police on the very day when he was arrested. He urged this court to give him the full 1/3 discount in view of his early plea.
SENTENCE
20. This is surely a serious case. Charge 2 was clearly planned, albeit not in the most meticulous way. The way in which X was expected to be punished, should he refuse to pay, is, to say the least, brutal. If not for the information supplied by the civilian as well as the prompt action taken by the police, serious injury to X by a group of men might have been resulted.
21. Insofar as Charges 1 and 2 are concerned, immediate custodial sentence is the only option.
22. Having considered the circumstances of the instant case, the submissions made by counsel for the defence as well as the relevant legal principles, the appropriate starting point for Charge 1 should be 18 months’ imprisonment. The 2nd defendant is entitled to the full 1/3 discount for his guilty plea. Thus for Charge 1 the 2nd defendant is sentenced to 12 months’ imprisonment.
23. For Charge 2, the appropriate starting point should be 3 years’ imprisonment. Both defendants are entitled to the full 1/3 discount for their respective timely pleas. Thus for Charge 2 both the 1st and the 2nd defendants are sentenced to 2 years’ imprisonment.
24. For Charge 3, I take a fine of HK$3,000 as the appropriate starting point. The 1st defendant is entitled to the full 1/3 discount for his plea. Thus for Charge 3 the 1st defendant is fined HK$2,000.
25. For Charge 4, I take a fine of HK$6,000 as the appropriate starting point. Again, the 1st defendant is entitled to the full 1/3 discount for his plea. Thus for Charge 4 the 1st defendant is fined HK$4,000. Further, the 1st defendant is disqualified from holding any driving licence for a period of 12 months.
26. After consideration of the totality principle, for the 2nd defendant, I order that 3 months of his sentence in Charge 1 to run consecutively with that of Charge 2.
27. The 4 months’ suspended sentence imposed on the 2nd defendant in ESCC 172/2017 is activated in full. Such term is to run consecutively with the sentences in the instant case.
ORDER
28. This court orders the following sentences:-
For the 1st defendant:
Charge 2: 2 years’ imprisonment.
Charge 3: Fined HK$ 2,000.
Charge 4: Fined HK$ 4,000 and disqualified from holding any driving licence for a period of 12 months. The disqualification will commence from the 1st defendant’s release from imprisonment.
The total fine of HK$6,000 is to be paid within 4 weeks.
For the 2nd defendant:
Charge 1: 12 months’ imprisonment.
Charge 2: 2 years’ imprisonment
3 months of the sentence in Charge 1 run consecutively to that of Charge 2.
Total sentence term of the 2nd defendant in the instant case is 2 years and 3 months’ imprisonment.
The 4 months’ suspended sentence in ESCC 172/2017 is activated in full. Such term is to run consecutively to the sentences of Charges 1 & 2.
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( Francis Cheng )
Deputy District Judge |
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