HKSAR v. NGAI MING YIN

DCCC 226/2021

[2021] HKDC 1031

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 226 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleads guilty to five charges of theft, contrary to section 9 of the Theft Ordinance[1] (charges 1, 5, 6, 7 & 8); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance (charge 2); one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks)  Ordinance[2] (charge 3)  and one charge of using a registration mark on a vehicle with intent to deceive, contrary to section 111 of the Road Traffic Ordinance (charge 4).

2.  Between 12 June and 22 June 2020 the defendant stole five motorcycles.  The defendant was arrested on 5 July 2020 when he was found riding one of the motorcycles with a false number plate and without a valid driving licence or insurance.  Full details of the offences are set out in the summary of facts admitted by the defendant today and summarised below[3].

Charges 1, 2, 3 & 4

3.  At around 1 p.m. on 20 June 2020 Mr Yip parked his motorcycle WG 802 (chassis number RFGLNB705KSA00260)  on the pavement of Yu Tung Road in Tung Chung.  When Mr Yip returned at 8:15 a.m. the next day he found his motorcycle missing.  The motorcycle was valued at $51,900.

4.  In the small hours of 5 July 2020 the police conducted an anti-vehicle theft operation at the public motorcycle car park on Tam Kon Shan Road in Tsing Yi. 

5.  At 3:20 a.m. the police intercepted the defendant riding motorcycle bearing number plate VZ 6452.  The police contacted the registered owner of VZ 6452 who confirmed that his motorcycle and number plate had not been stolen. 

6.  The number plate VZ 6452 on the motorcycle the defendant was riding was therefore a forgery.  Police investigation revealed that the motorcycle was a stolen vehicle.  The police then arrested the defendant (charge 4).

7.  The motorcycle was Mr Yip’s motorcycle WG 802.  Mr Yip confirmed that all the items found in the storage box did not belong to him and that two helmets and two pairs of gloves he kept in the storage box had been stolen.  Mr Yip also confirmed that the ignition cylinder had been altered (charge 1).

8.  The defendant did not hold a valid driving licence having only held a learner’s licence which had expired on 4 May 2011 (charge 2)  and was not insured to ride the motorcycle (charge 3).

9.  In two video recorded interviews the defendant admitted, inter alia, stealing the motorcycle by cutting the cables and altering the ignition; throwing away all the items in the storage box and buying the number plate VZ 6452 so that he could change the number plate on the motorcycle. 

Charge 7

10.  Inside the storage box the police also found the vehicle licence of motorcycle WP 3714. 

11.  At around 11:55 p.m. on 14 June 2020 Mr Leung, the owner of WP 3714, parked his motorcycle on the pavement outside Ching Tao House, Cheung Ching Estate in Tsing Yi.  When Mr Leung returned at 11 a.m. the next day he found his motorcycle missing.  The motorcycle was valued at $60,000.

12.  Mr Leung confirmed that the vehicle licence found in the storage box was the vehicle licence of his motorcycle.  The motorcycle was later recovered on 9 November 2020.

13.  In two video recorded interviews the defendant admitted, inter alia, stealing the motorcycle, also by cutting the cables and altering the ignition; selling the motorcycle for $3,000 and keeping the vehicle licence for using on other motorcycles. 

Charge 5

14.  At around 6:30 p.m. on 12 June 2020 Mr Yeung parked his motorcycle UA 7339 at the public motorcycle car park on Tam Kon Shan Road.  The motorcycle was valued at $61,000.

15.  At around 8 a.m. on 14 June 2020 the motorcycle was found by Highway staff on the side of the road on the Tsing Kwai Highway.  The police informed Mr Yeung who confirmed that his motorcycle had been stolen. 

16.  In a video recorded interview, the defendant admitted, inter alia, stealing the motorcycle which broke down when he was riding therefore he left the motorcycle on the road. 

Charge 6

17.  At around 7 p.m. on 12 June 2020 Mr Hui parked his motorcycle WJ 2771 under the flyover outside No. 18 Tsing Luk Street in Tsing Yi.  When Mr Hui returned at 7 a.m. on 15 June 2020 he found his motorcycle missing.  The motorcycle was valued at $68,000.

18.  The motorcycle was recovered the same day having been impounded at Winland 800 Hotel in Tsing Yi.  Mr Hui confirmed the storage box had been damaged and the items inside did not belong to him. 

19.  The defendant’s palm print was found on the nearside body of the motorcycle.  CCTV of the hotel captured the defendant and another male entering the hotel at around 4 p.m. on 13 June 2020.  CCTV of the vicinity also captured someone riding the motorcycle near the hotel between 2:13 and 4:03 a.m. on 15 June 2020.

20.  In a video recorded interview, the defendant admitted, inter alia, staying in the hotel with a friend; he was the person seen riding the motorcycle in the CCTV footage and that he had stolen the motorcycle. 

Charge 8

21.  At around 8:30 p.m. on 22 June 2020 Mr Chiu parked his motorcycle UC 6008 at the public motorcycle car park on Tam Kon Shan Road.  When Mr Hui returned at 6:30 a.m. the next day he found his motorcycle missing.  The motorcycle which was valued at $33,000 has not been recovered.

22.  In a video recorded interview, the defendant admitted, inter alia, stealing the motorcycle which he sold for $2,000.

Mitigation

23.  In passing sentence, I have carefully considered the oral and written submissions of Mr Sio, including that the defendant who is 35 and married, was working as a freelance motorcycle accessories instalment worker at the time of his arrest[4].

Theft of vehicle

24.  There are no guidelines for offences of theft of vehicles, each case depending on its own facts. 

25.  Mr Sio refers the court to the sentence I passed earlier this year in HKSAR v Yuen Ka Kui & another[5]. D1 pleaded guilty to multiple charges of theft, only one of which was theft of a motorcycle valued at $12,000, significantly less than all the stolen motorcycles in the present case.  I am satisfied the present case is more serious.

26.  Deterrent sentences are required.   As was said in HKSAR v Cheng Chun Ming[6]:

“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.”

27.  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.

28.  In HKSAR v Fan Chi Wai 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[7].

Charges 1, 2, 3 & 4

Theft of a motorcycle (charge 1)

29.  Taking into account the value of the motorcycle was $51,900 the ignition was altered and that a false number plate was placed on the motorcycle, no doubt to avoid detection, I am satisfied the proper starting point after trial for the theft of the motorcycle is 2 years and 6 months’ imprisonment. 

30.  Although the defendant has a criminal record, mostly for possession of dangerous drugs and was released from prison in November 2019 after serving 3 years’ imprisonment for conspiracy to defraud and possession of dangerous drugs, I note he has no convictions relating to theft of vehicles.  In the circumstances I do not enhance the sentence by reason of previous offending. 

31.  Giving the defendant full credit for his plea of guilty reduces the sentence on charge 1 to 1 year and 8 months’ imprisonment. 

Driving without a valid driving licence and using a motor vehicle without third party insurance (charges 2 & 3)

32.  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. 

33.  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 reduces the sentence on charge 2 to 1 month’s imprisonment and on charge 3 to 2 months’ imprisonment. 

Using a registration mark on a vehicle with intent to deceive (charge 4)

34.  I regard the use of false plates to avoid detection as a serious offence.  I am satisfied a starting point of 6 months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 4 months’ imprisonment. 

Disqualification

35.  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

36.  The main purpose of disqualification being forward-looking and preventive rather than backward-looking and punitive, I am satisfied that a period of 2 years’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period 2 years[8]. 

Totality

37.  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. 

38.  The defendant having never passed a driving test and only holding an expired learner’s licence and having no third party insurance placed all other road users at risk.  I am satisfied that these two offences add to the culpability of the defendant on the theft charge.  Furthermore, the theft of the motorcycle occurred two weeks earlier.  Consecutive sentences are appropriate subject to the totality principle. 

39.  I am satisfied that a wholly consecutive sentence is appropriate and that a total sentence of 1 year and 10 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges[9].

40.  Having taken into account in determining the sentence for the theft of the motorcycle, the use of a false registration plate to avoid detection, I am satisfied a concurrent sentence is appropriate for charge 4. 

Charges 5 & 6

41.  Taking into account the value of the motorcycles $61,000 and $68,000 respectively, I am satisfied the proper starting point after trial for each charge is 2 years and 3 months’ imprisonment. 

42.  Giving the defendant full credit for his plea of guilty reduces the sentence on each charge to 1 year and 6 months’ imprisonment. 

Charge 7

43.  Taking into account the value of the motorcycle $60,000 and that the ignition was altered[10], I am satisfied the proper starting point after trial is 2 years and 6 months’ imprisonment. 

44.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 8 months’ imprisonment. 

Charge 8

45.  Taking into account the value of the motorcycle was $33,000 and that the motorcycle has not been recovered, I am satisfied the proper starting point after trial is 2 years and 3 months’ imprisonment. 

46.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment. 

Totality

47.  In my view sentence must reflect that the defendant stole five motorcycles over a period of eleven days, two on the same day.  Consecutive sentences are appropriate for the five thefts of motorcycles. 

48.  Mr Wong confirms that the only evidence of the theft of the motorcycles subject of charges 5 and 8 is the confession of the defendant.  In HKSAR v Ma Ming[11] the Court of Appeal held that the fact that a frank confession provides the only evidence which supports the charge did not entitle the defendant to a further discount over and above the one-third discount. 

49.  The Court of Appeal in HKSAR v Ngo Van Nam[12] reaffirmed the position that a judge was not obliged to give a discount over and above the one-third discount explaining that the mitigating factor of a confession was subsumed within the one-third discount.

50.  The court in Ma Ming did however say that when considering the totality of the sentence a court, in exercising its discretion, can take into account the fact that the frank confession of a defendant provides the only evidence to support the charge. 

51.  Taking into account the defendant’s confession to stealing all the motorcycles I am satisfied a total sentence of 3 years and 4 months’ imprisonment properly reflects the defendant’s criminality on the eight charges and takes into account the defendant’s personal circumstances and the seriousness of the offences[13].  

52.  The defendant is convicted and sentenced as follows:

Charge 1 – 1 year and 8 months’ imprisonment;

Charge 2 – 1 month’s imprisonment;

Charge 3 – 2 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 2 years;

The sentences on charges 2 & 3 are to be served concurrent but consecutive to charge 1.

Charge 4 - 4 months’ imprisonment concurrent to charges 1, 2 & 3;

Charge 5 – 1 year and 6 months’ imprisonment with 3 months consecutive and 15 months concurrent to charges 1, 2, 3 & 4;

Charge 6 – 1 year and 6 months’ imprisonment with 6 months consecutive and 12 months concurrent to charges 1, 2, 3, 4 & 5;

Charge 7 – 1 year and 8 months’ imprisonment with 6 months consecutive and 14 months concurrent to charges 1, 2, 3, 4, 5 & 6; and

Charge 8 – 1 year and 6 months’ imprisonment with 3 months consecutive and 15 months concurrent to charges 1, 2, 3, 4, 5, 6 & 7.

53.  The total sentence to be served by the defendant is 3 years and 4 months’ imprisonment.