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DCCC 87/2013
IN THE DISTRICT COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
CRIMINAL CASE NO 87 OF 2013
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| Before: |
HH Judge Tallentire |
| Date: |
22 April 2013 at 10.31 am |
| Present: |
Mr Frederic Whitehouse, Counsel on fiat, for HKSAR |
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Ms Wong Wing-man, Vivian, instructed by Anthony Kwan & Co, assigned by the Director of Legal Aid, for the defendant |
| Offence: |
(1) Loitering with intent (有意圖而遊蕩) |
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(2) Handling stolen goods (處理贓物罪) |
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(3) Using markings on a vehicle with intent to deceive (意圖欺詐而在一輛汽車上使用標記) |
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(4) Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車) |
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(5) Possession of offensive weapons in a public place (在公眾地方管有攻擊性武器) |
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Reasons for Sentence
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1. Defendant, you denied one offence of loitering with intent, contrary to section 161 of the Crimes Ordinance, Cap.200. However, you pleaded guilty to one offence of handling stolen goods, contrary to section 24 of the Theft Ordinance, Cap.210; to using markings on a vehicle with intent to deceive, contrary to 111(A) of the Road Traffic Ordinance, Cap.374; to using a vehicle with no insurance, contrary to section 4(1) and (2A) of the Motor Vehicle Insurance (Third Party) Risks Ordinance, Cap.272; and to possession of an offensive weapon, contrary to section 33(1) of the Public Order Ordinance, Cap.245.
2. I ordered the first offence to remain on file and not to be proceeded with without leave of this court or the Court of Appeal.
3. In respect of Charges 2 to 5, you admitted the brief facts and I convicted you.
4. The facts were as follows. On the morning of 28 October last you were driving a car, that is LK 3661, along Tai Po Road towards Shatin. That is a three lane two-way road. The weather was fine, the road dry and in good repair. Traffic flow was normal.
5. About 7.20 am, PW1, a taxi driver, was driving his taxi along Tai Po Road/Yuen Chau Tsai towards Shatin. At lamppost CE0035 near Care Village PW1 saw the other vehicle skid onto the nearside pavement, knock down a signpost, overturn and slip onto the central dividing road marker. PW1 got out to help. You climbed from the overturned vehicle and gave no response to PW1. PW1 and another driver, PW2, called the police.
6. You ran off for about 10 metres, then returned and got a plastic bag of items from the vehicle. You ran in the direction of Tai Po. You then threw the bag down the slope and returned to the vehicle. You appeared to be looking for things from the vehicle and ran to and fro for a few times. You disappeared before the police arrived.
7. The police found two bags on the slope which contained a 43 centimetre knife with a blade of 28 centimetres and a 39 centimetre knife with a blade of 24 centimetres, and a pair of registration plates, KM 1444. The knives are the subject of Charge 5.
8. The actual registration number of the vehicle was KM 1444. This had been missing since its theft on 21 October 2012. The registered owner of the vehicle whose correct registration was LK 3661 confirmed the plates to be intact and on his vehicle. The vehicle chassis number referred to in the admitted facts is that of the missing vehicle and that constitutes Charge 3.
9. At about 7.48 am police located you about 200 metres from the scene on Tai Po Road. You were bare-chested and had abrasions and cut marks to your upper body. You admitted to having been in a traffic accident and pointed in the direction of the overturned vehicle. You stated you were only driving for Kit Jai, who promised you $2,000. You claimed you could not contact him and you were to wait at a restaurant in Tai Po. Charge 2.
10. You were arrested and cautioned and repeated that you were asked by Kit Jai to deliver the vehicle from Mongkok to Tai Po for $2,000. You claimed that the tyres burst which caused the accident. You had driven the vehicle without the consent of the proper owner and so therefore you were not insured. Charge 4. In fact, the vehicle had been stolen a week before the accident from a locked garage.
11. At a subsequent interview under caution on 29 October 2012 you admitted the knives belonged to you.
12. You admitted to 11 previous convictions, some of which were similar to the present offences.
13. On your behalf, Miss Wong entered mitigation. She told me that you agreed with the antecedents statement provided by the prosecution. You are 37 years old, single and educated to Form 2. Prior to arrest you had been employed as a lorry driver, earning some $9,000 per month. You reside with your parents, who are in their 60s. Your father is in fact suffering from cancer.
14. In relation to the offences, Miss Wong stressed your plea of guilty. She told me you had been recruited by Kit Jai, a man whom you met playing mahjong, to deliver the two knives to Tai Po for $2,000. The car was provided for this purpose. Quite rightly, she said there was nothing to connect you to the theft of the car, nor was it a case where you were delivering the vehicle to be sold.
15. She referred me to two cases, the first being HKSAR v Cheng Chun Ming, CACC 356/2000. In that case the Court of Appeal approved of a starting point of 3 years. However, the facts were somewhat different in that the car was being delivered to a dealer for sale.
16. The second case was HKSAR v Lam Shun Choi, DCCC 612/2012, where for using a document to deceive the judge took a starting point of 12 months, and for no insurance a starting point of 6 months.
17. She urged me to view the present case as being much less serious than these cases and to adopt a lower starting point, that all sentences should be run concurrently, especially 2 and 5, which are part and parcel of the same act. She produced to me a letter of mitigation provided by you.
18. I turn now to the sentences.
19. You are a man with a considerable criminal record, and in fact the present offence was committed shortly after your release from prison after your previous sentence. I fully accept that you played no part in the theft of the vehicle, nor were you delivering the vehicle to be sold. I am prepared to accept the vehicle was merely being used to deliver two knives. However, that is serious in that you must know that knives can only be used for one purpose. I accept also that it cannot be shown that you were the one who changed the registration plates.
20. I have taken into account all the mitigation advanced. I have also taken into account your letter. I note that on arrest you were co-operative with the police.
21. The following sentences will be imposed: Charge 2, that is handling stolen goods, I take a starting point of 27 months, reduced to 18 months for your plea of guilty; Charge 3, which is the matter relating to the using the markings with intent to deceive, I take a starting point of 9 months, reduced to 6; Charge 4, no insurance, a starting point of 6 months, reduced to 4 months. Additionally, for this offence, you will be disqualified from holding or obtaining a driving licence in respect of all classes of vehicles for a period of 18 months; and Charge 5, 6 months down to 4 months.
22. Charges 3 and 4 will be served concurrently with the sentence on Charge 2, whereas the sentence on Charge 5 of 4 months, 2 months will be consecutive and 2 months concurrent. That is a total of 20 months’ imprisonment.
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