HKSAR v. CHENG MICHAEL KIN HO

DCCC 379/2021

[2022] HKDC 113

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 379 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to Charges 1 to 9 and 11. Charges 10 and 12 are now ordered to leave on file and not to be proceeded with without the leave of the court.

Charge 1 – Theft (between 11^th and 30^th of September 2020)

2.  The defendant stole a motorcycle’s number plate (TM9305)  and its vehicle license (vehicle 1).

Charge 2 – Theft (on or about 9^th November 2020)

3.  The defendant stole a motorcycle (vehicle 2, worth $36,000).

4.  When the motorcycle was recovered by the police on 21^st November 2020.  PW2 examined the motorcycle and found two rear view mirrors (valued at $1,300)  together with one car camera memory box (valued at $1,200), vehicle license, its number plate (valued at $70)  and two hand brake systems (valued at $500)  were missing.  The key cylinder and the right side body of the motorcycle were scratched and damaged, the total value of the repair costs and damaged items was $5,090 (vehicle 2).

Charges 3 to 6

5.  (a)  Charge 3 -      Forgery of document;

    (b)  Charge 4 - Driving without a valid driving license;

    (c)  Charge 5 - Using a motor vehicle without a 3^rd party insurance;

    (d)  Charge 6 - Criminal Damage

6.  These charges all occurred on 14^th November 2020 of an incident that the defendant drove a stolen motorcycle (vehicle 2)  by using the number plate of TM9305 (vehicle 1)  to deceive (Charge 3 – forgery of document).

7.  The defendant did not have a motorcycle driving license to drive (Charge 4)  and he was not insured to drive the stolen motorcycle (Charge 5).

8.  On that day, the defendant had an argument with a taxi driver due to the taxi driver’s driving manner.  The defendant then alighted from the motorcycle of which it fell onto the ground.  The taxi driver drove around the motorcycle and continued its journey.  While at a junction waiting for the traffic light, the defendant stopped the motorcycle next to the taxi and took out a 40 cm long metal object to throw it at the windscreen of the taxi (Charge 6 – Criminal Damage).

9.  The repair cost of the windscreen was $1,000.

10.  The taxi’s car camera showed that the defendant’s driving manner was unsmooth and unsteady.  He kept rebuking the taxi driver in an aggressive manner.  The windscreen was damaged after the defendant threw an object to it.

Charges 7 to 9 and 11

11.  This was an incident occurred at around 5:00 a.m. on 21^st November 2020.

(a)  Charge 7 – Forgery of document

(b)  Charge 8 – Driving (vehicle 2)  without a valid driving

license

(c)  Charge 9 – Using Vehicle 2 without a 3^rd party

insurance

(d)  Charge 11 – Dangerous driving

12.  At the material time, uniformed police officers set up a road block for screening breath test near chainage 11.1N, Tsing Kwai Highway.

13.  The defendant followed PW6’s instruction to enter the inspection area and stopped in front of PW6.  However, the defendant suddenly accelerated and left the road block area.

14.  Police started pursuit.  The police officers on board the chasing police vehicle demanded the defendant to stop through the vehicle loudhailer.  The defendant ignored and kept driving at high speed, crossed double or single continuous line 6 times and shaded area 2 times.

15.  When the defendant reached a highway fork intersection, he pretended to make his way to Lantau Island, however, he then suddenly turned towards Tuen Mun.  He drove against the traffic and red lights.  He pretended to exit at the roundabout whilst continuing to drive against the traffic.

16.  The defendant drove against the traffic into Tuen Mun Road Bus Interchange (Tuen Mun Bound)  and the motorcycle fell down when the defendant drove onto the pavement, with the motorcycle then producing fire sparks.

17.  The defendant then ran away.

18.  During the 7 minutes of pursuit which covered about 13 km with the highest speed reached at 140 km/h when the relevant speed limits were 70-80 km/h.

19.  There was light shower during the pursuit.

20.  Police officers used the vehicle loudhailer to warn the defendant multiple times that it was very dangerous for him to continue to escape and his motorcycle tyres could not last any longer due to the high speed.

21.  All the while, the defendant ignored all these warnings.

22.  The defendant rode on the motorcycle (vehicle 2)  with the number plate belonged to vehicle 1 on both occasions (Charges 3 and 7).

23.  Under caution, the defendant admitted: -

(a)  That he stole vehicle 2 on 9^th November 2020.

(b)  At the material time, he was very afraid as he used a stolen motorcycle without license.

(c)  As to the criminal damage incident occurred on 14^th November 2020, he used the same stolen motorcycle.

(d)  He never held a motorcycle license.

24.  The defendant used the number plate and vehicle license of vehicle 1 on the stolen motorcycle to deceive (Charge 7).

25.  At all material time, the defendant used the stolen motorcycle without a motorcycle driving license (Charge 8).

26.  The terms of the third party insurance against Vehicle 2 (the stolen motorcycle), only applied to those who are permitted to use the motorcycle by the policyholder, not the defendant.  The defendant was not covered by 3^rd parties insurance (Charge 9).

Criminal record

27.  The defendant has a long list of criminal records since 2003, altogether 23 previous convictions.  They included: -

(a)  Theft, attempt theft, theft from vehicle

(b)  Taking conveyance without authority

(c)  Using a motor vehicle on a road against third party risk – 3 times [in 2006, 2010 and 2014]

(d)  Handling stolen goods

(e)  Driving without a license – 2 times [in 2010 and 2014]

(f)  Assault occasioning actual bodily harm

(g)  Gambling in a gambling establishment

(h)  Possession of dangerous drugs

(i)  Last conviction was trafficking dangerous drugs and was sentenced to 6 years’ imprisonment in November 2016.

Mitigation

28.  The defendant is now 42 years old.  His son was born in May 2021.

29.  The defendant used to work as a car mechanic between 2000 and 2015 with a monthly wage of about $18,000.

30.  He has some undesirable peers who led him to take drugs.  After his release from prison in 2019, he managed to get a job as a car mechanic.  However, he lost his job in 2019.  At the same time, his girlfriend was found pregnant.

31.  The defendant stole the motorcycle and replaced the driving plate with TM9305 to enable him to take on part-time jobs as a delivery man for Deliveroo, Foodpanda and SF Express.

32.  As to the incident on 14^th November 2020, he drove his girlfriend to Tsan Yuk Hospital while the taxi almost hit his motorcycle.  He was upset by the incident as he concerned about the safety of his girlfriend.

33.  It was in the heat of the moment that he used a metal bar to hit on the windscreen of the taxi.

34.  As to the dangerous driving incident on 21^st November 2020, the defendant was frightened and worried that he would be locked up for driving a stolen motorcycle while his girlfriend was pregnant at the material time.

35.  He is remorseful for committing the offences as he is now a father and will miss the opportunity to raise the baby together with his wife.  He also plans to marry his girlfriend after his discharge from prison.

36.  Yesterday, I have been informed that the defendant has informed the Prosecution in September 2021 that he is willing to pay compensation of $1,000 to the taxi driver.  The taxi driver also wishes to be compensated.  I have been informed that the $1,000 is now deposited into the court’s shroff office.

37.  The defence referred the following cases in mitigation:-

(a)  HKSAR v Ramos Jr Fredjewell A. CACC 88/2021

The appellant pleaded guilty to 3 charges: -

(i)  Theft of vehicle (a motorcycle), starting point 27 months, enhanced by another 3 months for repeated commission of the same offence. Reduced to 20 months after 1/3 discount.

(ii)  Driving without a valid driving license, 6 weeks starting point, reduced to 4 weeks.

(iii)  Using a motor vehicle without 3^rd party insurance, starting point 4½ months, reduced to 3 months.

(iv)  All sentences to run concurrently.

(b)  HKSAR v Jim Chong Shing CACC 186/2003

The appellant has been convicted after trial and he was sentence to 3 years 6 months for the 2 charges.

(i)  Dangerous driving – 2½ years

(ii)  Criminal damage – 2 years.

(c)  HKSAR v Yeung Chi Wa CACC 224/2017 related to stealing of a taxi.

(d)  HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 was regarding the principle of totality in sentencing.

38.  This court also brings to the attention of the parties of the recent case of HKSAR v Yip Sing Yeung CACC  216/2021 that the appellant was convicted upon his guilty pleas for 4 charges: -

(i)  Dangerous driving – drove a rented private vehicle and past a police road block dangerously at a high speed, subsequently crashed into a barrier, severely damaged the vehicle. Starting point 30 months was upheld and disqualified for 5 years.

(ii)  Driving under the influence of “ice” – received a sentence of 18 months after discount.

(iii)  Driving without a valid license – fine $1,500.

(iv)  Using a motor vehicle without 3^rd party insurance – a sentence of 8 months after discount. Disqualified for a period of 3 years.

All sentences to run concurrently.

Sentence

39.  Regarding the maximum sentence of the individual offences: -

(a)  Theft – maximum sentence is one of 10 years

(b)  Forgery of document – a fine at level 3 and imprisonment of 3 years

(c)  Driving without a valid driving license – 2^nd and subsequent conviction, a fine at level 3 and 6 months’ imprisonment

(d)  Using a motorcycle without 3^rd party insurance – a fine at level 2 and 12 months’ imprisonment, disqualification not less than 12 months or more than 3 years.

(e)  Criminal Damage – 10 years’ maximum sentence

(f)  Dangerous driving – on conviction on indictment to a fine at level 4 ($25,000)  and to imprisonment for 3 years.

40.  When I passed sentences on the defendant for the following charges, I have regard to the circumstances of the offences, the principle of totality and his timely pleas.

Charges 1 and 2

41.  For the summary of facts of which he had admitted, in September 2020, the defendant went to steal a vehicle license of a motorcycle and its registration number plate from vehicle 1.  It caused PW1 inconvenience as PW1 could not drive his motorcycle without a number plate and vehicle license.

42.  On 9^th November 2020, the defendant went on to steal the motorcycle (vehicle 2).

43.  As to stealing of a motorcycle, there is no sentencing guideline, but the value of the motorcycle is a factor to be considered.  Motorcycle 2 is worth $36,000.  Not only the owner has been inconvenienced, he also has to pay $5,090 to restore the motorcycle (Charge 2).

44.  For charge 1, I adopt a starting point of 4.5 months, reduce to 3 months’ imprisonment after 1/3 discount.

45.  For charge 2, I adopt a starting point of 2 years and 6 months, reduce to 1 year and 8 months’ imprisonment after 1/3 discount.

46.  I also order the sentence of Charge 1 to run consecutively to Charge 2.

47.  The total sentence for Charges 1 and 2 is 1 year and 11 months’ imprisonment.

Charges 3 to 6

48.  I now come to deal with the 14^th November, 2020 – the criminal damage incident.  I have the opportunity to watch the camera footage in the open court.

49.  The defendant has previous conviction of driving without license as the Transport Department revealed that the defendant has never held any motorcycle driving license.  In another word, the defendant has never passed a driving test for motorcycle.  He also had no third party insurance to cover his driving on the road.  It was a serious offence as the other road users who were injured in any traffic accident might be left without any compensation.

50.  The defendant had a dispute with the taxi driver while he was driving the stolen motorcycle.

51.  His driving manner was unsmooth and unsteady.

52.  He was a hot tempered person.  He stopped his motorcycle in the middle of the lane and blocked all the traffic behind the taxi when the traffic was already congested.  Obviously, he stopped to scold the taxi driver in an aggressive manner.

53.  From the CCTV, I can see that the defendant threw a metal object towards the windscreen of the taxi.  It was totally shattered.  There were passenger and taxi driver inside the taxi.  The defendant simply ignored the safety of both of them.

54.  The taxi driver could not carry on its journey and could not work at least for that day.

55.  The repair cost was $1,000.

56.  The defendant was clearly a menace on the road.

57.  I have examined the metal object which looked like certain parts of a machine.  It weighted about 1kg and it was irregular in shape with a narrower end on one side.  The defendant said that he took it up from the road side before he threw it at the taxi driver.

58.  I have doubt that there is anything like that to be conveniently lying around on the road as claimed by the defendant.

59.  It was sheer luck that the piece of object did not fly into the compartment of the taxi to hurt anyone.

60.  The intention of the defendant to threw that object to the taxi could not be any clearer.  He intended to cause damage to the taxi.

61.  He also drove away immediately as he knew that the number plate on the motorcycle would not be able to allow the Police to track him down.

62.  The act of Charge 6, that is the criminal damage offence added culpability to Charges 3, 4 and 5, bearing in mind that the defendant had previous convictions of driving without a valid license and using a motor vehicle without 3^rd party insurance.  Sentences need to be enhanced for these offences.

63.  As I said yesterday, without 3^rd party insurance to cover him of driving on the road, it was a serious offence.  As the other road users who were injured in any traffic accident might be left without any compensation.

64.  I therefore consider that: -

Charge 3 – forgery of document, a starting point of 6 months, reduce to 4 months’ imprisonment after 1/3 discount;

Charge 4 – driving without a valid license, a starting point of 3 months, enhance for another 1.5 months, reduce to 3 months’ imprisonment after 1/3 discount;

Charge 5 – using a motor vehicle without 3^rd party insurance, a starting point of 9 months, enhance to 12 months and reduce to 8 months’ imprisonment after 1/3 discount. The defendant is also ordered to be disqualified for a period of 3 years.

Charge 6 – criminal damage, a starting point of 21 months, reduce to 14 months’ imprisonment. I also reduce 1 month for the defendant’s compensation to the taxi driver. It comes down to 13 months.

65.  I order sentences in Charges 3 to 5 to be run concurrently.  The total sentence for Charges 3 to 5 is 8 months.  I also order 5 months out of this 8 months to run consecutively to the sentence of Charge 6.  The total sentence for Charges 3 to 6 is now 18 months (5 months + 13 months)  of which 10 months to run consecutively to sentence of Charges 1 and 2.

Charges 7 to 9 and 11

66.  In respect of the dangerous driving offence, the CCTV footage showed that the defendant disobeyed the Police commands to stop, he drove at a high speed of 140 km/h, there was a prolong act of dangerous driving, it covered a distance of 13 km, the whole pursuit was 7 minutes, the defendant drove against oncoming traffic and red lights.

67.  The incident was fortunate enough that there was no injury and damaged caused to any road users.  However, the defendant put the police officers at risk during the 7 minutes of pursuit especially when the road surface was wet at certain part of the pursuit.

68.  The defence said that the defendant intended to put the motorcycle in a quiet place in New Territories as the motorcycle was a stolen one.

69.  I found this explanation absurd.  The defendant lived in Hong Kong side near to the Tsan Yuk Hospital, he would take trouble to drive the vehicle through tunnels and into the New Territories to hide the motorcycle?

70.  Anyone with common sense would know that the longer the journey he took; the higher chance he would come across the Police.

71.  However, it is with this dangerous driving manner, he added the culpability to Charges 7, 8 and 9 bearing in mind he did not have a valid motorcycle driving license and 3^rd party insurance.

72.  I consider that the starting point for the following charges: -

(a)  Charge 7 – forgery of document, a starting point of 6 months, reduce to 4 months’ imprisonment after 1/3 discount.

(b)  Charge 8 – driving without a valid license, a starting point of 3 months, enhanced by 1.5 months, reduce to 3 months’ imprisonment after 1/3 discount.

(c)  Charge 9 – using a vehicle without 3^rd parties’ insurance, a starting point of 9 months, enhance by 3 months, the total is 12 months, reduce to 8 months’ imprisonment after 1/3 discount. The defendant is ordered to be disqualified for a period of 3 years.

(d)  Charge 11 – dangerous driving, a starting point of 2 years and 3 months, reduce to 1 year and 6 months’ imprisonment after 1/3 discount. I also order the defendant to be disqualified for a period of 3 years.

(e)  The defendant is required to complete a driving improvement course at his own expense within the last 3 months of that 3 years’ disqualification period. Failing which, the defendant may be subjected to another criminal offence.

73.  I order all the sentences from Charges 7, 8, 9 and 11 to run concurrently.  The total sentence for this set of offences is 1 year and 6 months, of which 10 months to run consecutively to the sentence of Charges 1 and 2.

74.  All the disqualification orders are to be run concurrently and be commenced from the date of sentence.

75.  The total sentence is 3 years and 7 months.