HKSAR v. CHOW KUEN FUNG AND ANOTHER

DCCC 578/2023

[2024] HKDC 980

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 578 OF 2023

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REASONS FOR SENTENCE

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INTRODUCTION

1.  D1 is charged with 7 charges of theft (Charges 1, 2, 9, 10, 11, 12 and 13), 1 charge of attempted theft (Charge 3)  jointly with D2, 2 charges of driving while disqualified (Charges 4 and 5), 2 charges of using a motor vehicle without third party insurance (Charges 6 and 7)  and 3 charges of forgery of documents (Charges 8, 14 and 15).

2.  D2 is charged with 1 charge of attempted theft (Charge 3)  jointly with D1.

3.  Upon D1 and D2’s guilty pleas to the aforesaid charges and admissions to facts, D1 and D2 are convicted on all the charges respectively laid against them.

4.  Details regarding the 7 charges of theft and 1 charge of attempted theft are set out below:

Charge	Offence date	Stolen property	Owner of stolen property
1	On a day unknown between 13 and 18 September 2022	A private car bearing registration mark KY325 (“V1”)	Kwong Yu Plastic Factory Limited (“Kwong Yu”)
2	On a day unknown between 16 and 23 September 2022	A private car bearing registration mark TB1605 (“V2”)	Cheung Kwong-ping (“Cheung”)
3	21 September 2022	A private car bearing registration mark XZ3453 (“V3”)	Wong Ka-wai (“Wong”)
9	7 October 2022	A private car bearing registration mark RJ5493 (“V4”)	Li Ka-chung (“Li”)
10	On a day unknown between 17 and 29 October 2022	A private car with chassis number WBANU52060C229444	Unknown
11	On a day unknown between 17 and 29 October 2022	A private car bearing registration mark VK3727 (“V6”)	Foshan City Nanhai Yizuan Electric Appliance Co Ltd (“Foshan”)
12	On a day unknown between 23 and 29 October 2022	A private car bearing registration mark UF4797 (“V7”)	Ng Suk-wa, Doby (“Ng”)
13	On a day unknown between 26 and 29 October 2022	A private car with chassis number WDD2462432J376188	Unknown

FACTS

Charge 1

5.  V1 was last seen parked inside Kwong Yu’s warehouse (the “Warehouse”)  at around 2:30 pm on 13 September 2022.  At about 9:30 am on 14 September 2022, three locks for the door to the Warehouse were broken, the door to the Warehouse was half-open and V1 originally parked inside the Warehouse was missing.

6.  As a result, a staff member of Kwong Yu posted V1’s photos on Facebook to appeal for information.  On 18 September 2022, he received information about V1 and located V1 near lamppost no GD0309, Kong Po Road.  At the time of recovery of V1, registration plates with registration mark RF9150 were affixed on V1.

7.  Two fingerprints of D1 were found inside V1.

Charge 2

8.  At all material times, Cheung was the owner of V2.  At about 7 pm on 15 September 2022, Cheung parked V2 at a warehouse near DD 104, Lot 2934, Castle Peak Road - Mai Po, Lok Ma Chau and left.  At about 7 pm on 16 September 2022, Cheung was informed that the iron-gate to that warehouse had been prized open.

9.  CCTV footage of the warehouse revealed that an unknown person drove V2 away at about 5:18 am on 16 September 2022.  V2 was eventually located by the police on 23 September 2022. D1’s fingerprint was found inside V2.

Charges 3 to 8

10.  At all material times, Wong was the owner of V3.  At about 12:05 am on 21 September 2022, Wong parked V3 near lamppost no  FB3861, Tin Yuet Road, Yuen Long (“Location 3”)  and left.  At about 8:20 am on the same day, Wong returned to Location 3 and found D1 driving V3 away.  At the same time, D2 got off a private car displaying registration number LU2466 (the “Getaway Car”)  and assisted in directing the traffic flow to let V3 leave.

11.  Wong immediately approached V3 and knocked on V3’s window.  D1 then got off V3 and got on the driver seat of the Getaway Car.  At about the same time, D2 boarded the Getaway Car and fled with D1.  The ignition switch of V3 was damaged and the window of the nearside rear passenger seat was loosened.  A crowbar not belonging to Wong was found inside V3.

12.  At an identification parade conducted on 31 October 2022 and 1 November 2022, Wong positively identified D1 and D2 respectively.  V3’s car camera captured D1 and D2 getting on the Getaway Car and leaving the scene at the material time.

13.  D1 has been disqualified from driving for the period from 21 December 2021 to 20 June 2025. D1’s use of V3 and the Getaway Car on 21 September 2022 was not covered by any third party insurance.

14.  The true owner of the private car bearing registration number LU2466 (the “real LU2466”)  confirmed that at the time of offence, ie at about 8:20 am on 21 September 2022, the real LU2466 was parked at Kwai Chung Container Terminals.  The number plates bearing registration number LU2466 affixed on the Getaway Car at the material time were false.

Charge 9

15.  At all material times, Li was the owner of V4.  Li lent V4 to a Mr Kok (“Kok”)  in early October 2022.  At 1 am on 7 October 2022, Kok parked V4 near lamppost no FB2556, Fung Kat Heung, Pat Heung (“Location 4”)  and left.  At about 7 am on the same day, Kok returned to Location 4 and found V4 missing.

16.  Upon D1’s arrest on 29 October 2022, D1 led the police to the open area near lamppost no FC0008, Chi Ho Road, Pat Heung and the police found V4 there.  Li found that (1)  one set of hi-fi worth HK$70,000, (2)  one set of automotive head unit worth HK$5,000, (3)  the front number plate of V4 worth HK$300 and (4)  V4’s vehicle licence were missing.  V4’s ignition switch and rear number plate were damaged.

Charges 10 and 14

17.  At all material times, Mr Lam (“Lam”)  was the owner of the private car bearing registration number KL8449 (“V5”).  The chassis number of V5 was WBANU52060C229444.  At about 10 am on 17 October 2022, Lam parked V5 outside Fai Wong Garage, No 100 Kam Tin Road, Pat Heung (“Location 5”)  and left.  When Lam returned to Location 5 at about 2 pm on 24 October 2022, he found V5 missing.

18.  On 29 October 2022, the police found V5 outside Yuet Wah House, Tin Yuet Estate, Tin Shui Wai and successfully opened V5 using the car key found from D1 when he was intercepted by the police previously.  The number plates bearing registration number WG2366 were affixed on V5 at the time of recovery.  Lam found scratches on the offside bumper and the nearside body and car door(s)  of V5.  Lam confirmed that the number plates bearing registration number WG2366 affixed on V5 did not belong to him. D1’s fingerprint was found inside V5.

Charges 11 and 12

19.  At all material times, Foshan was the registered owner of V6.  V6 was last seen parked at DD113, Lot 106, Ho Pui Tsuen, Kam Ho Road, Pat Heung (“Location 6”)  at about 5 pm on 16 October 2022.  V6 was found missing at about 9 am on 18 October 2022.

20.  CCTV footage at Location 6 captured D1’s presence there at about 12:28 pm on 17 October 2022 and V6 was then being driven away at about 12:31 pm on the same day.  D1’s fingerprint was found inside V6 upon subsequent recovery of V6 by the police.  

21.  At all material times, Ng was the owner of V7.  At 9 pm on 23 October 2022, Ng parked V7 near lamppost no AD7259, Pat Heung Road, Pat Heung (“Location 7”)  and left.  At about 5 pm on 25 October 2022, Ng returned to Location 7 and found V7 missing.

22.  After D1’s arrest on 29 October 2022, D1 was brought to the open area near lamppost no BD1230, Lam Tai West Road, Yuen Long where the locked iron-gate could be opened using the key found on D1 at the time D1 was arrested.  V6 and V7 were found thereat. The police successfully opened V6 with a key found on D1 when D1 was intercepted.  V6 and V7’s number plates were missing.  The offside rear windows at the passenger seat of V7 were broken and the ignition switch of V7 was removed.  D1’s fingerprint was found inside V7.

Charges 13 and 15

23.  Mr Afsar (“Afsar”)  purchased the private car bearing registration number PG635 (“V8”)  on 26 October 2022.  At about 3:30 pm on the same day, Afsar parked V8 outside DD114, Lot 215216, Lo Uk Tsuen, Kam Tin Road, Pat Heung (“Location 8”)  and left.  At about 3:30 pm on 27 October 2022, Asfar returned to Location 8 and found V8 missing.  The chassis number of V8 was WBANU52060C229444.

24.  After arrest of D1 on 29 October 2022, the police brought D1 to Nga Tat Car Park, Tin Yip Road, Tin Shui Wai.  The police found V8 thereat and successfully opened V8 with one of the car keys found on D1 at the time of arrest.  Amongst other things, a pair of false number plates with registration number WL6930 were affixed on V8 at the time of recovery of V8. D1’s fingerprint was found inside V8.

Arrest and caution on D1

25.  D1 was initially arrested at about 9:46 pm on 22 September 2022 for attempted taking conveyance without authority and forgery of documents.

26.  At about 1:35 pm on 29 October 2022, D1 was intercepted by the police outside Yuet Wah House, Tin Yuet Estate, Tin Shui Wai.  A body search was conducted on D1 and D1 was found holding V5’s car key in his hand.  From a bag held by D1, 7 car keys were also found contained inside a plastic bottle.

27.  At about 1:40 pm on the same day, the police successfully opened V5 with the car key found from D1.  Upon arrest and under caution, D1 admitted having stolen V5 and said he had another stolen car at Kam Tin and he could bring the police there.

28.  At about 4:05 pm on the same day, D1 was brought to Nga Tat Car Park, Tin Yip Road, Tin Shui Wai and the police successfully opened V8 with one of the car keys found from D1.  Under caution, D1 first admitted having stolen V8 but later claimed that he remembered it wrongly and he had nothing to do with V8.

29.  At about 6:38 pm on the same day, D1 was brought to the open are near lamppost no FC0008, Chi Ho Road, Pat Heung where V4 was found.  Under caution, D1 admitted having stolen V4 in the vicinity of Pat Heung.  Among other things, LU2466’s vehicle licence was found inside the glove box of V4’s front passenger seat and a number plate of LU2466 was found under V4’s front passenger.

D1 AND D2’S BACKGROUND AND PREVIOUS RECORDS

30.  D1 was born in February 1984 and is now 40.  He received education up to Form 5 level.  He was unemployed prior to his arrest.  He has 37 previous convictions resulting from 10 cases, out of which there were:

•  3 convictions of taking conveyance without authority

•  2 convictions of theft

•  1 conviction of obtaining property by deception

•  6 convictions of driving while disqualified

•  6 convictions of using a motor vehicle on a road against third party risks

•  2 convictions of possession of forged driving/vehicle document

He was last discharged from prison on 14 April 2022.

31.  D2 was born in June 1981 and is now 43.  He received education up to Form 2 level.  Before his arrest, D2 worked as a driver earning HK$25,000 per month.  He has 18 previous convictions resulting from 9 cases, out of which there were:

•  8 convictions of theft or theft from vehicle

•  2 convictions of taking conveyance without authority

•  2 convictions of driving without a valid driving licence

•  2 convictions of using a motor vehicle on a road against third party risks

MITIGATION – D1

32.  Ms Ho submitted on behalf of D1 that D1’s strongest mitigating factor was his indication of guilty plea at the earliest opportunity.  She also submitted that D1 cooperated with the police by volunteering information to the police for their investigation.  Ms Ho therefore asked the court to take this into account when considering sentencing totality: HKSAR v Ma Ming [2013] 1 HKLRD 813 and HKSAR v CHENG Chun-ming CACC 356/2000.

33.  Ms Ho referred this Court to the following Judgments/Reasons for Sentence:

•  HKSAR v CHENG Chun-ming CACC 356/2000

•  HKSAR v NGAI Ming Yin [2021] HKDC 1031

•  HKSAR v FUNG Chun Ho [2022] HKDC 1247

•  HKSAR v MA Ming [2013] 1 HKLRD 813

(NGAI Ming Yin and FUNG Chun Ho are Reasons for Sentence pronounced at the District Court and are not binding.)

MITIGATION – D2

34.  Mr Cheung on behalf of D2 submitted that D2’s strongest mitigating factor was his early indication of guilty plea.  He also submitted that D2 committed the offence in Charge 3 because D1 asked him to help out.

35.  Mr Cheung referred this Court to the following Judgment/Reasons for Sentence:

•  HKSAR v YEUNG Chi Wa [2018] HKCA 73

•  HKSAR v KWOK Chuen Faat [2022] HKDC 1009

•  HKSAR v LEUNG Kin-yip and others DCCC 687/2015

(KWOK Chuen Faat and LEUNG Kin-yip and others are Reasons for Sentence pronounced at the District Court and are not binding.)

SENTENCE

36.  According to Cheng Chun Ming, the usual starting point for car theft is 3 years’ imprisonment. I will therefore adopt a starting point of 3 years for each of Charges 1, 2, 9, 10, 11, 12 and 13.  I will also adopt the same starting point for Charge 3.  D1 has a total of 6 previous convictions of theft, taking conveyance without authority and obtaining property by deception.  He committed the aforesaid 8 charges in the present case about 5 months after he was discharged from prison.  He was given police bail on 22 September 2022 but he committed Charges 9, 10, 11, 12 and 13 afterwards.  I will increase D1’s sentence for Charges 1, 2, 3, 9, 10, 11, 12 and 13 by 6 months to 42 months’ imprisonment.  D2 has a total of 10 previous convictions of theft, theft from vehicle and taking conveyance without authority.  I will also increase D2’s sentence for Charge 3 by 6 months to 42 months’ imprisonment. 

37.  As for each of Charges 4 and 5, I adopt a starting point of 7 months’ imprisonment.  D1 has 6 previous convictions of driving while disqualified.  I increase his sentence for Charges 4 and 5 by 2 months to 9 months’ imprisonment.  I will deal with his disqualification later.

38.  As for each of Charges 6 and 7, I adopt a starting point of 7 months’ imprisonment.  As D1 has 6 previous convictions of using a motor vehicle on a road against third party risks, I increase the sentence by 2 months to 9 months’ imprisonment.  I will deal with his disqualification later.

39.  As for each of Charges 8, 14 and 15, I adopt a starting point of 7½ months’ imprisonment.  I am not going to increase the sentence despite D1 has 2 previous convictions of possession of forged driving/vehicle document.

40.  One-third discount is given to D1 and D2 for their timely indication of guilty plea.  There being no further valid mitigating factors justifying further reduction in sentence, the respective sentences for D1 and D2 are as follows:

Charges	D1	D2
1	28 months	-
2	28 months	-
3	28 months	28 months
4	6 months	-
5	6 months	-
6	6 months	-
7	6 months	-
8	5 months	-
9	28 months	-
10	28 months	-
11	28 months	-
12	28 months	-
13	28 months	-
14	5 months	-
15	5 months	-

41.  According to section 4(2)(a)  of Cap 272, Laws of Hong Kong, for each of Charges 6 and 7, I order D1 be disqualified for 3 years from the date of conviction, ie today.

42.  According to sections 44(2)(b)  and 44(3)  of Cap 374, Laws of Hong Kong, for each of Charges 4 and 5, I order D1 be disqualified for 4 years and such disqualification is in addition to the 3 years’ disqualification imposed for Charges 6 and 7.

43.  On totality of imprisonment terms for D1, the 15 charges can be considered as 8 groups of offences as follows:

•  Group A: Charge 1 involving V1

•  Group B: Charge 2 involving V2

•  Group C: Charges 3 to 8 involving V3 and the Getaway Car

•  Group D: Charge 9 involving V4

•  Group E: Charges 10 and 14 involving V5

•  Group F: Charge 11 involving V6

•  Group G: Charge 12 involving V7

•  Group H: Charges 13 and 15 involving V8

44.  I am of the view that commission of car theft does not necessarily have to co-exist with commission of the offences of driving while disqualified and/or using a motor vehicle without third party insurance.  Because of that, for the offences under Group C, I am of the view that some of the sentences in Charges 4 to 7 should run consecutively with the sentence in Charge 3 to more accurately reflect the criminality.

45.  Eight cars were involved in the 15 charges laid against D1.  I am of the view that a total sentence of 70 months’ imprisonment appropriate.

46.  I accept that but for D1’s cooperation with the police by informing the police where the stolen cars were parked, it would have been more difficult and time consuming for the police to recover the stolen cars.  I will therefore downward adjust the total sentence for 3 months.

47.  In light of the aforesaid, I order:

•  5 months in Charge 1;

•  5 months in Charge 2;

•  5 months in Charge 3;

•  2 months in Charge 4;

•  2 months in Charge 5;

•  5 months in Charge 9;

•  5 months in Charge 10;

•  5 months in Charge 11; and

•  5 months in Charge 12

are to run consecutively with 28 months in Charge 13. All other sentences are to run concurrently. The total sentence for D1 is therefore 67 months’ imprisonment.