HKSAR v. CHAU YUI MING

DCCC 1043/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO.1043 OF 2012

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Reasons for Sentence

1. The defendant pleaded guilty to one charge of ‘theft’[1]; one charge of ‘using marking on a vehicle with intent to deceive’[2]; one charge of ‘using a motor vehicle without third party insurance’[3] and one charge of ‘possession of dangerous drugs’[4].

Facts

Charge 1: theft

2. A missing motorcycle was spotted parked outside Kapok House, Kwong Yuen Estate in Shatin. Police officers waited in ambush nearby and arrested the defendant when he got onto the motorcycle and started its engine. Under caution, the defendant admitted stealing the vehicle one month ago in Shamshuipo for his own use. The owner of the motorcycle was located and confirmed its ownership and value of HK$20,000.

Charge 2[5]: using marking on a vehicle with intent to deceive

3. The registered owner also confirmed that the genuine licence plate of the vehicle was KY3660 and not RC3172, which was the plate displayed on the motorcycle when the defendant was intercepted.

4. Upon investigation, it was discovered that this RC3172 plate was stolen from another motorcycle one day earlier. The theft was at first not reported to the Police.

Charge 4: no third party insurance

5. When the defendant started the engine of the stolen motorcycle, he was using it without the permission of its owner and so was not covered under a valid third party insurance policy. Upon his admission, for the past month, when the defendant used the motorcycle, he was also not under the cover of third party insurance.

Charge 5: possession of dangerous drugs

6. After the defendant’s arrest and upon search, a foil pack containing 10 tablets containing 0.07g of nimetazepam; 3 plastic bags containing a total of 0.64g of a solid containing 0.53g of cocaine and 1 plastic bag containing 0.03g of a solid containing cocaine were found from the defendant’s handbag. The defendant admitted under caution that the dangerous drugs found were for his own consumption.

Previous Convictions

7. The defendant has 18 previous court appearance involving 37 convictions. Out of those, 17 involved dishonesty. He was last convicted in April 2010 for an offence of indecent assault at the Fanling Magistracy and was sentenced to 9 months’ imprisonment. The defendant’s last conviction relating to dishonesty was some time ago in 2005 when he was sentenced to 24 months’ imprisonment in the District Court for one charge of burglary.

Mitigation

8. The defendant is 45, educated up to P.6 in mainland China. He came to Hong Kong in 1977 and works as a cooked food hawker in Hong Kong. He is married with one son and one 9 month old daughter. The defendant is the sole breadwinner of the family.

9. Mr. Solomon Chong was very brief in mitigation and suggested that the sentence in all the charges should be made concurrent with the court adopting an overall starting point no higher than 3 years’ imprisonment.

Sentence

10. The maximum sentence for theft is that of 10 years’ imprisonment; for using marking on a vehicle with intent to deceive is that of a fine of $10,000 and imprisonment for 3 years; for using vehicle without third party insurance is that of a fine of $10,000 and imprisonment for 12 months (plus a period of disqualification[6]) and for possession of dangerous drugs that of a fine of $1 million and 7 years’ imprisonment.

Charge 1

11. The value of the motorcycle is $20,000. This is not the defendant’s first conviction involving dishonesty. The motorcycle was stolen in June while the defendant was arrested 3 months later in September. According to the defendant in his video recorded interview, the false licence plate was already on the motorcycle when he stole the bike. Yet, the plate was found to have been stolen only 1 day before the defendant’s arrest. When asked why that was the case, the defendant chose not to elaborate further.

12. While the defendant was entitled to his right of silence, what he had already told the Police contradicted with what investigation had unraveled. This goes to show that the defendant may not be telling the entire truth in his video recorded interview about how he came by the motorcycle.

13. On the other hand, the defendant apparently stole the motorcycle for his own use. The theft was committed by the defendant alone with no suggestion of others being involved.

14. Bearing in mind the circumstances of the case and the fact that the defendant is a repeated offender, I find that an immediate custodial sentence is required, and an appropriate starting point is that of 21 months’ imprisonment. This sentence is discounted by one third in recognition of the defendant’s guilty plea. The defendant is sentenced to 14 months’ imprisonment for charge 1.

Charge 2

15. I find that the use of the false licence plate was related to the fact that the motorcycle was stolen. The person stealing the vehicle would have expected the owner of the motorcycle to report the matter to the Police who will then be looking for the motorcycle with the original licence plate. To use a licence plate stolen from another unrelated vehicle would make it more difficult to locate the stolen motorcycle while it was being used on the road. The person who took the stolen plate and put it on the stolen motorcycle was hoping that the owner of the stolen plate would not bother to report the relatively minor theft, thus lessening the chance of the theft of the motorcycle being discovered. This was in fact what had happened in this case.

16. Given the circumstances of the usage of the licence plate, the fact that the false plate was to help conceal the theft of the vehicle, I find that an immediate custodial sentence is required and that the appropriate starting point is that of 12 months’ imprisonment. This sentence is discounted by one third in recognition of the defendant’s guilty plea to that of 8 months’ imprisonment.

Charge 4

17. The defendant had been using the vehicle without third party insurance for about 1 month since he had stolen the vehicle, driving it once every 2-3 days according to the defendant’s admission in his video recorded interview. This prolonged period of usage must be differentiated from someone who drove a vehicle without third party insurance on just one occasion. The longer the vehicle was used without insurance coverage, the higher the probability of other road users being affected.

18. I find that a term of imprisonment is appropriate in the circumstances. I will adopt a starting point of 9 months’ imprisonment given the long period of time of usage, discounting it by one third in recognition of the defendant’s guilty plea and sentence him to 6 months’ imprisonment on charge 4.

19. The defendant is also disqualified from holding or obtaining a licence to drive a motor vehicle for 12 months pursuant to s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272. Mr. Chong did not raise the point of special reasons under the subsection.

Charge 5

20. There is no sentencing tariff for simple possession of dangerous drugs. The usual range of sentence for small amount of dangerous drugs possessed for self-consumption is that of between 12 to 18 months’ imprisonment, depending on the quantity of dangerous drugs involved[7].

21. The defendant has 1 previous conviction for possession of dangerous drugs in 1990 when he was fined $1,500. Given the lapse of time between that and the present offence, I will not view this previous conviction as an aggravating factor.

22. In view of the relatively small quantity of dangerous drugs involved, I will adopt a starting point of 12 months’ imprisonment, reduced to that of 8 months’ imprisonment[8] after discounting for the defendant’s guilty plea.

Totality

23. The defendant stole the motorcycle, either together with the stolen licence plate or he himself changed it but either way had used it to conceal the theft of the motorcycle, kept it for his own use for at least one month, driving it every 2 to 3 days without third party insurance.

24. Since the defendant had stolen the motorcycle for his own use, it was almost inevitable that he would have to put another licence plate on the bike to cover up the theft and so I find that part of the sentence of charge 2 should be made concurrent to the sentence for the theft of the motorcycle.

25. Since the bike was stolen, it was never going to be the case that the defendant would invest in any insurance policy and so the commission of the 4^th charge is almost part and parcel to the commission of the theft. Yet the fact that the defendant had driven the stolen vehicle without third party insurance over the period of one month is an important aggravating factor to consider when sentencing for this charge.

26. The possession of dangerous drugs however had nothing to do with any of the other offences relating to the motorcycle.

27. For the observations above, I will order that 3 months of the sentence in charge 2 to be served consecutively to the sentence in charge 1 and 3 months of charge 4 to be served consecutively to the sentences in charge 1 and 2. The sentence in charge 5 to be served wholly consecutively to the rest of the sentences.

28. The defendant is therefore sentenced to a total of 28 months’ imprisonment.

[1] s.9, Theft Ordinance, Cap.221

[2] s.111(1)(a), Road Traffic Ordinance, Cap.374

[3] s.4(1) and (2)(a), Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272

[4] s.8(1)(a) and (2), Dangerous Drugs Ordinance, Cap.134

[5] The alternative charge 3 of ‘handling stolen goods’ was not required to be dealt with upon the defendant pleading guilty to charge 2.

[6] “If a person acts in contravention of this section, he shall be liable to a fine of $10000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.”

[7] HKSAR v Mok Cho Tik, CACC 165/2000

[8] s.54A(1A)(a) of the Dangerous Drugs Ordinance applies and requirement of DATC consideration is dispensed with.