HKSAR v. LAW HO FAI

DCCC 1122/2012

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1122 OF 2012

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Reasons for Sentence

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1.  The defendant has pleaded guilty to three charges. The 1st charge is attempt theft of a motorcycle on 10 September 2012; the 2nd charge is the theft of a motorcycle between 17 and 25 October 2012; and the 3rd charge is one of using the motorcycle, the subject of the 2nd charge, without insurance.

2.  The facts in relation to the 1st charge are that on 10 September 2012, a special police constable referred to PW3 in the Summary of Facts found a missing motorcycle parked at the rear lane of 132 Sai Yeung Choi Street, Mongkok.  This vehicle had been reported lost on 23 August 2012.  The officer noticed that the vehicle was dusty and that there were prising marks at its ignition key bolt.

3.  The officer laid in ambush and at 1855 hours the defendant arrived at the scene.  The defendant approached the motorcycle furtively and inserted a car key into the ignition key bolt.  He tried to switch on the ignition but failed to do so and put the car key back into his trousers and left the vicinity.

4.  The defendant was intercepted by a second police officer and admitted to that officer that he tried to use his own car key to switch on the ignition and had he succeeded, he would have driven the motorcycle away.

5.  When the defendant was arrested, he was found in possession of a bundle of keys which were seized from him and it was later ascertained that one of those keys was suitable for switching on the ignition of the vehicle.  The defendant was released on police bail of $2,000 in respect of that offence.

6.  On 25 October 2012, PW3 found another missing motorcycle parked outside New Kowloon Plaza in Tai Kok Tsui Road.  This vehicle had been reported missing a week previously.  The officer, PW3, and another colleague laid in ambush and at 1132 hours they saw the defendant and a female arriving at the second motorcycle.  The defendant took a helmet from the vehicle and put it on and then used a car key and successfully switched on the vehicle’s engine.  The defendant was arrested as was his girlfriend.  He admitted that he had stolen the motorcycle in Kwun Tong a few days previously for fun. 

7.  The stolen motorcycles were later identified by their respective owners.  The first cycle was valued at $5,000 and the second one at $13,000.  Clearly, the defendant was using the second vehicle without the permission of the owner and there was therefore no valid third-party insurance to cover his use of the vehicle.

8.  The defendant has appeared before the court on six previous occasions in respect of eight offences.  Two of the offences are related to dishonesty but those offences, I note, relate to the dishonest use of electricity and the sentences imposed were probation and a fine.  Despite the number of court appearances, the defendant has only been dealt with previously for his offences by way of fine or probation although for a breach of probation in 2010 he was ordered to go to a drug addiction treatment centre.

9.  The defendant is 37 years of age and was educated to Form 3 standard.  He is an Internet technician but was unemployed at the time of his arrest.  He was married in 2004 and separated seven years later and there were two sons of that relationship who live with his wife, and he has no traffic record.

10.  In mitigation, my attention was drawn to two cases, one of which involved the theft of a luxury motorcar for which the starting point was confirmed by the Court of Appeal to be a starting point of 3 years’ imprisonment.  My attention was also drawn to a District Court case where for an offence of stealing a motorcycle, the judge considered that a starting point of 18 months’ imprisonment was appropriate after trial.

11.  Defence counsel has presented to court a letter from the defendant in which he expresses his remorse and apologises for his wrongdoing and also apologises to the victims for the inconvenience that he has caused them.

12.  In mitigation, it was pointed out that not only has the defendant pleaded guilty to the offences but he admitted the offences right at the outset.  Although he has a record, he has no similar convictions. It was also pointed out that the value of the property involved in this case was relatively low: $5,000 in respect of the first offence and $13,000 in respect of the second offence.

13.  Offences of this kind clearly have to be dealt with by way of a deterrent custodial sentence.  Not only does it involve the theft of property, it causes great inconvenience to the victims of the offences.  Also, it causes a great danger to members of the public when people steal and ride on motorcycles with which they are not familiar.  They have no idea whether or not it is in proper mechanical order or that the brakes work or anything of that nature.  This is made worse by the fact that the thief would not be covered by insurance for any damage or injuries that might be caused. 

14.  I agree that a starting point of 18 months’ imprisonment is appropriate in this case and I agree that that is the sentence which should be imposed on the first two charges.  You are entitled for that sentence to be reduced because you have pleaded guilty to the offences, and therefore the sentence in respect of each of the theft charges is a sentence of 12 months’ imprisonment.

15.  I have to consider the question of whether or not those sentences should run consecutively and the question of totality.  The fact that the second offence was committed very shortly after you were released on bail for the first offence would indicate that the sentences should run consecutively.  However, having considered the question of totality, it seems to me that justice would be met by ordering that 6 months of the sentence on Charge 2 should run consecutive to the sentence on Charge 1.

16.  In respect of Charge 3, clearly, this is a serious matter.  You were driving a motorcycle without insurance.  It was a motorcycle you were not familiar with.  I take the view that a starting point of 6 months is appropriate in that case and I will reduce that by one-third to 4 months to reflect your guilty plea.   

17.  It would seem to me that it would be wrong in principle for me to order the whole of that sentence run concurrently with the other two sentences, and I therefore order that 2 months of that sentence should run consecutive to the sentences on Charges 1 and 2.  The total sentence therefore in respect of all the charges will be a sentence of 20 months’ imprisonment.

18.  As regards the 3rd charge of driving without insurance, there is a mandatory disqualification requirement.  I have taken into account the circumstances in which the offences were committed and that for much of the time the disqualification will be imposed, you will be serving a sentence of imprisonment.  I therefore impose a period of disqualification for a period of 2 years.  If you ride or drive any motor vehicle in the next two years, you will commit an offence of driving whilst disqualified and for that offence, you will be sentenced to a period of imprisonment.  Do you understand that?  

DEFENDANT: Yes.

19.  Are you the holder of a driving licence?

DEFENDANT: Yes.

20.  Have you got the driving licence here?

DEFENDANT: No.

21.  Where is it?

DEFENDANT: In Lai Chi Kok.

22.  Right, and that licence must be surrendered to the court.  I also order that you be not allowed to drive again unless you have passed a test of competence to drive and that that test must be taken at your own expense, and this is subject to provisions of section 70(2) of the Road Traffic Ordinance. 

23.  As regards the driving licence, the prison authorities, can they make sure that his driving licence is surrendered from his property to the court?  It is not to be retained in his property.  You understand that?

DEFENDANT: Yes.