HKSAR v. YAU TING CHU

DCCC 84/2020

[2020] HKDC 1014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 84 OF 2020

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REASONS FOR SENTENCE

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1.  Defendant, you have pleaded guilty to the following charges:-

(1)  Theft;

(2)  Driving without a valid driving licence;

(3)  Using a motor vehicle without third party insurance.

Facts

2.  PWl was an employee of an engineering company and was responsible for driving a LGV with the registration mark of "UL8896" ("the Vehicle").

3.  On 17 August 2019 at about 1800 hours, PW1 parked the Vehicle outside G/F, 151 Ki Lung Street, Sham Shui Po, Kowloon and left. At about 1000 hours on the next day, he returned and found the Vehicle missing. Case was reported.

4.  PW1 also reported the matter on a "WhatsApp" group and was informed at around 2000 hours by other group users that the Vehicle was spotted near Ping Shek Estate, Ngau Tau Kok. He therefore went with his girlfriend (“PW2”) to Ping Shek Estate.

5.  Upon their arrival at around 2030 hours, they split up to search for the Vehicle. PW2 found the Vehicle parked outside the garbage station of 8 Clear Water Bay Road. Defendant, you and your father were seen organising the properties in the Vehicle. PW1 was alerted to report the case. In the meantime, you drove the Vehicle away. When  confronted by PW1 & 2, your father said he would contact you to return to the place.

6.  At 2106 hours the same day, PC27340 (“PW3”) arrived at Ping Shek Estate. During the investigation, you returned and was arrested and cautioned. The key to the Vehicle was also seized from you.

7.  PWl confirmed the various items with the total value of HK$26,000 were stolen from the Vehicle.

8.  Your residence was searched and further items were recovered.

9.  PW1 confirmed that the items were all stolen from the Vehicle.

10.  CCTV footage at 153 Ki Lung Street showed that you drove away the Vehicle at around 0516 hours on 18 August 2019.

11.  CCTV footage at the unloading zone of 8 Clear Water Bay Road showed that the Vehicle arrived there at around 1933 hours the same day.  It was later driven away at 2009 hours

12.  2 of your fingerprints were found on the front offside door of the Vehicle.

13.  The Commissioner for Transport confirmed that there is no record of Hong Kong driving licence under your HKID number. You therefore drove at the relevant time without a valid driving licence or third party insurance.

Background and Criminal Records

14.  You are now 26 years old, single but you have a 3 years old daughter with your ex-girlfriend. You used to live with your parents, elder sister and daughter in a public housing unit. Prior to your arrest, you worked as a gardener earning around HK$20,000 per month.

15.  You have 13 criminal convictions involving 20 charges, 6 of which are for “theft”.

Mitigation

16.  In mitigation, your counsel Mr. Leung told me that you committed the offences out of momentary greed and the offences were not premeditated.

17.  In relation to the “theft” offence, Mr. Leung drew my attention to the authority of HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400. He submitted that the facts of the 2 cases are similar except that, in the present case, you had been apprehended earlier by the police and therefore the victim suffered less financial loss. He also pointed out that you had no previous conviction for “theft of vehicle”.

18.  Regarding the driving offences, Mr. Leung submitted that they could have been dealt with in the magistrate’s court but for the theft offence. As you have no similar record, he urged me to deal with you leniently.

19.  2 mitigation letters were submitted - one written by you and the other one by your father. You said in your letter that you committed the offence out of greed. You also expressed your remorse and asked for leniency. As to your father’s letter, he told me that you are a kind-hearted young man and you are always willing to help the elderly. You also contributed regularly in supporting the family. He further asked the court to be lenient in sentencing you.

Sentencing Considerations

20.  Theft of a vehicle is a serious offence. The Court of Appeal in Attorney General v Ng Kwok Hung [1] held that the appropriate sentence for theft of a vehicle should be 3 years’ imprisonment.

21.  The sentencing judge in Yu Chi Chiu also took 3 years’ as the starting point for theft of a vehicle. This was not disturbed on appeal and the appellant in that case merely succeeded on grounds of double counting of aggravating factor and the excessive length of driving disqualification.

22.  Defendant, while you do not have as many criminal convictions as the appellant in Yu Chi Chiu, and none for “theft of vehicle”, you stole the Vehicle and also the properties found on board. Although most of the properties were recovered except 3 earphones, I am sure there was certainly financial loss and inconvenience caused to the victim.

23.  Your counsel said the offences were not planned, but I do find it strange that you would have gone to Sham Shui Po in the small hours of the day while you were residing in Ping Shek. Nevertheless, I am prepared to give you the benefit of doubt and accept what your counsel’s submission in that regard.

24.  Having taken into account all circumstances of the case, I consider that the offence of “theft” warrants a starting point of 3 years’ imprisonment.

25.  For the driving-related offences, I adopt a starting point of 6 weeks’ imprisonment for “Driving without a valid Driving Licence” and 3 months’ imprisonment for “Driving without Third Party Insurance”.

26.  Taking into account the time you have to spend in custody, pursuant to s 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272, I order that you be disqualified from holding or obtaining a driving licence for 2 years from the date of conviction.

27.  Your guilty plea is the only real mitigation in this case and I will give you 1/3 discount in sentence. Your personal circumstances are not such as to warrant any reduction in sentence.

28.  After discount, your sentence for each offence will be as follows:-

1st Charge	-	2 years’ imprisonment.
2nd Charge	-	4 weeks’ imprisonment.
3rd Charge	-	2 month’s imprisonment. Disqualified from holding or obtaining a driving licence for 2 years.

29.  I take the view that all the 3 Charges arose out of the same transaction and therefore order that all the sentences to run concurrently, making a total of 2 years’ imprisonment.

30.  Finally, I must warn you that “Driving while disqualified” is a very serious offence and the likely sentence for which is a term of imprisonment.