HKSAR v. MAK HO KIT

DCCC 965/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 965 OF 2016

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Reasons for Sentence

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1.   The defendant has pleaded guilty to, firstly, Charges 1 to 5, which can be described as being related to one another.  Charge 1 is a theft of a motorbike on 1 July 2016 stolen from a car park in Tsz Wan Shan, Kowloon.

2.   In Charge 2, the defendant pleaded to making off without payment, where, on the same day that he stole the motorbike, he parked it in another car park, but entered it without a ticket. This would have meant he was evading payment.  He was spotted by an employee, and the vehicle impounded.  He should have paid $348 for the vehicle to be released. When confronted about payment, the defendant drove off and out of the car park without making those payments.

3.   Charge 3 is the theft of a licence plate that the defendant stole from another motorcycle on the same day.  He stole it to put it on the stolen motorbike.  Charge 4 is driving without a valid driving licence.  The defendant did not hold a valid driving licence, and, according to the Transport Department, he had, in 2011, been issued a learner’s driving licence for private vehicles and light goods vehicles valid for one year only. Charge 5 is using a motor vehicle without third party insurance.  It follows that if he drove the stolen bike out onto the streets of Hong Kong without a valid driving licence, he had no valid third party insurance.

4.   When he was arrested five days after stealing this motorbike, he was searched, and a small quantity of dangerous drugs was found on his person.  He had a small quantity of ketamine and a small quantity of “Ice”.

5.   He was arrested on 5 July, when a very observant police officer noticed that a motorcycle had displayed on it a number plate that had recently been stolen.  The police waited, and within the hour, the defendant arrived to drive away on that motorbike.  He was caught red-handed.

6.   Charge 11, the last charge, is one of failing to surrender to custody without reasonable cause.  He was granted bail by the High Court on 22 July 2016.  He failed to appear in court on 6 September 2016.  A warrant for his arrest was issued, and 22 days later, he was arrested, on 28 September 2016.

7.   I have already alluded to the salient and main facts of this case.

8.   The victim and the owner of the motorbike had left it in the car park with its key hidden.  The defendant stole it on 1 July and hid it in another car park.  He stole a plate to put on the stolen vehicle to try and hide it.  He admits driving the vehicle on the streets without a valid licence and therefore no third party insurance.

9.   When arrested, he did co‑operate with the police.

10.   The defendant is 24 years old.  He lives with his mother, who is a widow.  The defendant is only educated up to Form 1 level, but I have been told that he is a qualified crane operator, which can command a good salary.  I have been told when he was working in a construction site, he was earning up to $30,000 a month.

11.   The problem with the defendant is he has a drug problem, and clearly has had one for over 10 years.  He has 11 convictions obtained over eight court appearances.  10 of those convictions are drug related, of which two are trafficking of dangerous drugs offences.  He was first convicted in 2008, when he was only 15 years old.  His last conviction was in September 2014, when he was sentenced to a drug addiction treatment centre order.

12.   The defendant is single, but he had a girlfriend, and they have an 18-month-old daughter.  He and his girlfriend have since separated.  The child now lives with the defendant’s mother.  She is 65 years old and relying on CSSA.  This is a woman who needs help and support, and the defendant, in this position today, cannot give her either.

13.   In fact, the defendant is an irresponsible young man.  He has had a child, yet has not turned over a new leaf nor turned away from crime.  He stole this vehicle for fun.  He damaged the victim’s vehicle by spray‑painting it.  He drove around Hong Kong without a licence or insurance.  Moreover, he is a drug abuser.  He was found with drugs upon his person getting on that motorbike.  If the defendant had driven under the influence of drugs, that surely would raise the likelihood of having an accident, an accident with no insurance to compensate an injured person or damaged property.

14.   It is time for the defendant to grow up. I have had a letter from the defendant promising just that.  He really does need to keep that promise for the sake of his daughter and mother.

15.   The defendant has not entered a timely plea.  When first he appeared in the District Court, a guilty plea was indicated.  A plea date was set for 12 January this year, but on that day the defendant changed his mind, the explanation being a legal clerk who saw him whilst in remand convinced him prior to that date he had some sort of defence.

16.   Legal Aid on that plea date was discharged, and the defendant then engaged private representation, and it was subsequently confirmed that a trial was required.  However, that was not a long-lasting relationship.  The defendant did not have the financial ability to carry through private representation, nor an obvious defence.  Legal Aid represented the defendant once more, and prior to trial, a letter was written to all parties, including the court, indicating a plea bargain and a plea of guilty.

17.   I have been informed by the prosecution that a plea bargain was offered earlier this month and accepted only a couple of days before trial.  The prosecution has said that they had prepared for trial, meaning that there was work done in anticipation of a trial.

18.   I have taken into account the authority of HKSAR v Ngo Van Nam and Others CACC 418/2014.  The Court of Appeal determined that a discount of one-third upon a plea was no longer automatic.  The defendant would have been entitled to a discount of one-third if he had pleaded on the original date of 12 January.  I do not doubt that a legal clerk may have told him he had a defence. 

19.   The defendant is a 24-year-old man with experience of the legal system.  The defendant could not possibly realistically have believed he had a defence when the evidence was so strong and he was practically caught red‑handed.

20.   According to that Court of Appeal authority, he is today entitled to between 20 to 25 per cent discount, having indicated last week by letter that this would not go to trial.

21.   I find under these circumstances a 25 per cent discount appropriate.

22.   I have considered all the mitigation I have heard and the facts of this case.  Where a theft of a vehicle is concerned, according to the authorities of HKSAR v Chang Chun Ming 356/2000 as well as HKSAR v Lee Cheung Yin and Others CACC 313/2011, where a vehicle is stolen under opportunistic circumstances, a 3‑year starting point would be entirely appropriate.

23.   Here, I accept the defendant acted alone, out of impulse and greed.

24.   Therefore, I take for Charge 1 a starting point of 2 years and 8 months; for Charge 2, a starting point of 4 months; for Charge 3, a starting point of 12 months.  He may only have stolen a number plate, but the purpose of stealing that number plate was to try and hide the stolen vehicle.  For Charge 4, I take a starting point of 8 weeks’ imprisonment.  For Charge 5, an extremely serious offence, driving on the roads without third party insurance, I take an 8 months’ starting point.  For Charge 10, bearing in mind the defendant’s past criminal record, I take a starting point of 12 months’ imprisonment.  For Charge 11, failing to surrender to custody and jumping bail, I take a starting point of 8 weeks’ imprisonment.

25.   As I have said, I find the defendant is entitled to a 25 per cent discount from those starting points for his plea.  When I apply that discount, the defendant is sentenced as follows:

For Charge 1, the defendant is sentenced to 2 years’ imprisonment; for Charge 2, 3 months’ imprisonment; for Charge 3, 9 months’ imprisonment; for Charge 4, 6 weeks’ imprisonment; for Charge 5, 6 months’ imprisonment; for Charge 10, 9 months’ imprisonment; for Charge 11, 6 weeks’ imprisonment.

26.   I take into account the totality principle.  I also accept that Charges 1 to 5 all arise out of Charge 1. Charges 2 to 5 relate to the defendant having stolen the bike and trying to conceal the fact that he stole it.  They were also all committed within a five-day period.

27.   Charges 10 and 11 are totally separate and distinct to Charges 1 to 5.

28.   I will order that Charges 1 to 5 be served all concurrently.  I order that 2 months of the 9 months for Charge 10 be served consecutively to Charge 1.  I order that 2 weeks of the 6‑week term of imprisonment for Charge 11 be served consecutively to Charge 1, the balance of both charges to be served concurrently.

29.   Therefore, the total sentence for all seven charges will be one of 2 years, 2 months and 2 weeks.

30.   There is also the question of disqualification for Charge 5.  I order that the defendant be disqualified from driving all classes of vehicle or holding a driving licence for a period of 2 years from today.

COURT: Do you understand the sentence?

DEFENDANT: Yes.