HKSAR v. CHAN TSZ TO AND ANOTHER

DCCC 548/2020

[2020] HKDC 1226

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 548 OF 2020

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Reasons for Sentence

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1.  The 1st defendant pleaded guilty to two charges of having custody or control of counterfeit currency notes, contrary to section 100(1) of the Crimes Ordinance, Cap 200; two charges of possession of an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap 177; two charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210; two charges of evasion of liability by deception, contrary to section 18B(1)(b) of the Theft Ordinance; two charges of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap 374; two charges of using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272; two charges of doing an act or a series of acts tending and intended to pervert the course of public justice, contrary to Common Law and punishable under section 101I(1) of the Criminal Procedure Ordinance, Cap 221, two charges of handling stolen goods, contrary to section 24 of the Theft Ordinance; two charges of going equipped for stealing, contrary to section 27(1) of the Theft Ordinance; and one charge of possessing a false instrument, contrary to section 75(1) of the Crimes Ordinance, Cap 200. That is a total of 19 charges.

2.  The 2nd defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance; one charge of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance; one charge of using a motor vehicle without third party insurance, contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance; and one charge of driving a motor cycle not wearing an approved protective helmet, contrary to regulation 3(1) of the Road Traffic (Safety Equipment) Regulations, Cap 374F.  That is a total of four charges.

3.  Full details of the offences are set out in the facts admitted by the 1st and 2nd defendant on 16 December 2020.

Charges 1 and 2 (the 1st defendant) - Having custody or control of a counterfeit currency note and possession of an identity card relating to another person

4.  In summary, on 26 October 2019, the police searched the 1st defendant’s waist bag and found one counterfeit note in the denomination of $1,000 and a Hong Kong Identity Card relating to another person, Mr Mak.  Under caution, the 1st defendant said he was given the counterfeit note by his employer and the identity card was left in his home by Mr Mak’s girlfriend who was his cousin.  Mr Mak later confirmed that he had lost his identity card before 26 October and he did not know the 1st defendant nor his cousin.  The defendant was given police bail.

Charges 3 to 6 (the 1st defendant) - all relating to Mr Chung’s car - theft of his car, evasion of liability by deception, driving without a valid driving licence and using that motor vehicle without third party insurance

5.  In summary, Mr Chung was selling his vehicle WJ193 and it was advertised online.  On 13 December 2019, arrangements were made and the 1st defendant agreed to buy the vehicle after a test-drive.  The 1st defendant was on police bail at the time.  The 1st defendant wrote a cheque for $9,000, produced a copy of a vehicle purchase agreement and a copy of an identity card and a driving licence relating to a Mr Yiu Ka-shing, not the 1st defendant.

6.  There was a plan to meet three days later at the Transport Department to transfer the vehicle but the 1st defendant said he wanted the vehicle immediately and would rent it for those three days.  There was to be a contract for that rental.  Mr Chung was duped into removing all his belongings from the vehicle and giving the 1st defendant his vehicle to drive away.  The 1st defendant did not have a driving licence nor third party insurance. Mr Chung was left standing on the street.  He went to cash the cheque the following day but it bounced; that is Charge 4, evasion of liability by deception.  That vehicle was found by the police on 10 January 2020.

Charge 7 (the 1st defendant) - Evasion of liability by deception

7.  In summary, Mr Chan parked his vehicle in Tsuen Wan before having dinner.  During dinner, he was told that another vehicle had hit his vehicle.  He came out to find the 1st defendant to be driving RT1444 who admitted damaging Mr Chan’s vehicle.  There was a negotiation and an agreement by the 1st defendant to pay all the damages.  He said his name was Mr Yiu Ka-shing.

8.  The cost of repair was to be determined by a garage but the 1st defendant gave Mr Chan $17,000 cash as a deposit or guarantee.  The cost was subsequently determined to be $78,525 and they met the following day.  Mr Chan returned $10,000 cash deposit or guarantee to the 1st defendant.  The 1st defendant gave him two cheques for $60,000 and $18,525 respectively.

9.  The following day, both cheques were dishonoured, therefore an evasion of liability by deception charge.  Mr Chan was unable to pursue the 1st defendant thereafter.

Charge 8 to 11 (the 1st defendant) - all relating to Mr Chu’s car, theft of the vehicle, driving without a valid driving licence, using that vehicle without third party insurance and doing an act tending or intended to pervert the course of public justice

10.  In summary, this is the second vehicle stolen by the 1st defendant.  Mr Chu wanted to rent out his vehicle RM522.  It was advertised on the Internet for rent.  On 27 December 2019, just after midnight, Mr Chu met the 1st defendant who agreed to rent the vehicle for one month for $3,000.  He had to pay a deposit of $5,000.  The 1st defendant signed a contract and gave Mr Chu a cheque for $8,000.  The 1st defendant was then given possession of the vehicle and drove it away.

11.  That cheque bounced and the 1st defendant made excuses to the victim.  The victim reported the theft of his vehicle to the police and his friends were told to look out for his vehicle.  On 28 December 2019, at about 7.30, his friend spotted Mr Chu’s vehicle, followed it and reported it to the police.

12.  The police responded to his call and intercepted Mr Chu’s vehicle in Mong Kok.  The 1st defendant was asked by a police officer for his identity card and he showed him an identity card in relation to a Mr Yiu Ka-shing.  The police officer did not suspect it was an identity card belonging to another person.  The 1st defendant was not arrested that night because he talked himself out of it and convinced Mr Chu that he would honour the rental agreement.

13.  Charges 12, 14, 15, 16 - in relation to Mr Lau’s car - the 2nd defendant - theft of the vehicle, driving whilst disqualified, using a vehicle without third party insurance and not wearing an approved protective helmet.  Charge 13 (the 1st defendant) - handling stolen goods

14.  Mr Lai’s motorbike, WB1906, was stolen on 8 January 2020 when parked in Tsing Yi.  On 12 January 2020, Mr Lai saw it advertised for sale and reported it to the police.  A police officer pretending to be interested approached the seller as arranged on that day.

15.  The 1st defendant arrived and said he was a middleman who would take them to the vehicle nearby.  Both refused and arranged to meet later that evening to see the vehicle.  Not long after the 1st defendant left the undercover police officer, he was seen chatting to the 2nd defendant.

16.  Later that night, Mr Lai saw his vehicle and informed the police.  They saw the 2nd defendant on the motorbike and drive it a short distance without a helmet.  He was driving it whilst disqualified and using it without third party insurance.  He had been disqualified from driving between 8 September 2016 and 7 September 2020.  The police then saw the 1st and 2nd defendant together before they were both intercepted.

17.  The 1st defendant had in his possession two copies of a vehicle purchase agreement with the details of Mr Lai’s motorbike, WB1906, keys for that motorbike, a mobile phone and an identity card in relation to a Lee Hong-ting.

18.  The 1st defendant told the police officer he was Lee Hong-ting.  He was arrested for theft of a vehicle and under caution he said the 2nd defendant had asked him to sell the vehicle for a commission of $3,000. He did not know it was stolen.

Charges 17 and 18 (the 1st defendant) - Perverting the course of justice and possession of an identity card belonging to another

19.  The 1st defendant was taken to a police station where he then signed a Notice to Persons in Custody, a Pol 153, a post-recorded statement in a police officer’s notebook, and a Pol 157, an acknowledgement of receipt of that statement.  His signature was “Lee”.  The 1st defendant was brazenly perpetuating the lie that he was Lee Hong-ting.  of course, the police within a short period of time discovered this identity card had been previously reported as lost.  Only then did the 1st defendant reveal his true identity and even then he said Mr Lee Hong-ting was his friend.  Mr Lee later denied that.

Charges 19 and 20 - Going equipped for stealing and possession of a false instrument

20.  Whilst in the police station, the police found a credit card in Mr Lee Hong-ting’s name in the 1st defendant’s possession.  Mr Lee subsequently told the police that he had been attacked by two men in March 2015 and lost his wallet and identity card.  Nearly four years later he received a letter from AEON Credit Services demanding payment of an outstanding loan.  He was informed that somebody had applied for a credit card in his name and using his identity amassed a debt of about $12,000.  The credit card had been used on multiple occasions between March and May 2019.  The 1st defendant was in possession of this credit card and charged with going equipped for stealing.

21.  A search of the defendant’s phone revealed many incriminating documents and conversations which are set out in the Summary of Facts.  This included many documents in the name of Yiu Ka-shing.  The defendant on several occasions had told several victims that his name was Yiu Ka-shing.

22.  Amongst the documents was a letter purporting to be sent by China Light & Power Company to Yiu Ka-shing at an address in Tsing Yi.  That address did not exist and it was confirmed China Light & Power never issued this letter.  This is the type of letter required when applying for credit cards or loans, for example.  It was a false instrument (Charge 20).

23.  Charges 21 to 23 (the 1st defendant) - Custody of counterfeit currency notes, handling stolen goods and going equipped for stealing

24.  The 1st defendant was arrested on the evening of 12 January 2020.  Earlier that day he had checked into Room 1508 of Hotel Cozi Oasis for one night.  CCTV footage showed he and the 2nd defendant had been in that room a couple of hours before their arrest.  A rucksack had been left on a bed.  When the defendant did not check out because he was remanded in police custody, the hotel kept the rucksack in their office before handing it to the police on 17 January 2020.

25.  In the rucksack were seven counterfeit $1,000 notes and one counterfeit $500 note (Charge 21).  There were also copies of an identity card in the name of Wan Ling-fung and a driving licence in that name. However, the 1st defendant’s face had been superimposed on those documents.  Mr Wan’s identity card had been stolen in 2015 and he did not know the defendants.  There was also a coloured copy of Mr Yiu Ka-shing’s driving licence (Charge 23).  Mr Yiu had lost his wallet containing his identity card and driving licence on 28 May 2019 and he did not know the defendant.

26.  The police also found 21 blank cheques from Citibank in the name of Jim Wai-man and 12 Bank of East Asia blank cheques in the name of Custom Live Limited.  Custom Live Limited had had chequebooks stolen when sent to their registered address by Bank of East Asia in July 2019.  On 11 October 2019, the company had been informed that someone used one of those cheques to purchase items but it had been dishonoured.  The company had reported that case to the police and asked the bank to stop payments relating to any of the stolen cheques.  These particulars relate to Charge 22, handling stolen goods.

Mitigation

27.  The 1st defendant is 28 years old, finished secondary school and lives with his parents and brother.  He has two previous convictions; in 2009 he was sentenced to probation for common assault and in 2011 he was also sentenced to probation for possession of dangerous drugs.  His best mitigation is his plea of guilty to all these charges.  This defendant has never had a valid driving licence.

28.  Miss Moosdeen has said all she can say in mitigation on his behalf.  I have a letter from the 1st defendant himself explaining that he is remorseful and will turn over a new leaf.  In 2018 he applied for bankruptcy because of gambling debts.  He has worked as a seaman from 2013 to 2018 but later worked as a delivery worker at a company introduced to him by a man called Ah Choy.

29.  In mitigation it has been submitted that the defendant was a foot soldier behind the commission of all these offences.  It was Ah Choy who offered him quick money to use some documents to deceive.  The defendant was only following his instructions.  He was not told the details or extent of the operation except that he was told what to do with which document.  All the documents, identity cards and cheques were provided to him by Ah Choy to commit these offences.  It was suggested he was only following instructions and played a limited role.  He was never paid as promised for committing these offences.

30.  When asked for more details of Ah Choy’s actual instructions to the 1st defendant, I was told he told the 1st defendant to do this and do that but that the 1st defendant did not follow his instructions properly.  I have difficulty in accepting this bare assertion that he was not behind these offences, was only following instructions and had been given all these incriminating documents by another.  The facts suggest otherwise.

31.  The 2nd defendant is 33 years old and left school after Form 3.  He has been working in a hardware shop since.  He is single and lives with his family.  His is not a man with a clear record and has previous convictions for drug-related offences and offences of dishonesty.  In fact, in 2016, in the District Court, he was sentenced to terms of imprisonment for theft of vehicles, handling stolen goods, driving without a valid driving licence and no third party insurance.  He was disqualified from driving for a period of 4 years from September 2016 to September 2020, and that included being prohibited from taking his driving test.  This defendant has never had a valid driving licence.  His last conviction was in November 2019 where he was sentenced to a suspended sentence for assault occasioning actual bodily harm. He is in breach of that suspended sentence.

32.  Everything that can be said on behalf of this defendant has been submitted by Mr Tam.  His father unfortunately passed away in March this year leaving behind his mother and younger sister at home.  His best mitigation is his plea of guilty.  He has little by way of explanation for these offences but does stress he has decided to turn away from a life of crime and rehabilitate.  There is a letter from a pastor who opines that he is now genuinely remorseful.

Reasons for sentence

33.  I have been referred to authorities and cases dealing with sentencing similar offences.  Other than the charge of possessing an identity card relating to another person, these offences have no sentencing guidelines or tariffs and sentences will be decided on the facts and circumstances of individual cases as well as mitigation put forward.  It is an aggravating factor of possessing an identity card relating to another to actually use it and present it as one’s own.  Almost all are serious offences that merit a term of imprisonment.

34.  The 1st defendant has defrauded victims without remorse.  He has driven vehicles without a licence and insurance; he has even hit two vehicles whilst driving in these facts.  Other road users and pedestrians have no protection from irresponsible behaviour such as this.  He has written stolen cheques to deceive innocent people knowing they will not be honoured.  In the case of Charge 7, a sizeable amount.

35.  He has taken on the identities of others to protect himself not only to victims, but to the police on two separate occasions.  He is in possession of a sizeable sum of money in the form of counterfeit banknotes.  He has produced other documents and in possession of other documents for the purposes of stealing, fraudulent behaviour and deception.  He has committed all but two of these offences he faces whilst on police bail.  The 1st defendant has lied to so many without compunction to perpetuate this crime spree and evade arrest.

36.  Similarly, the 2nd defendant has driven without a licence and insurance putting innocent road users in danger and at risk.  All the more serious when he was only convicted of similar offences a few years ago and knows the penalty is immediate custodial sentences.  Here, he has stolen a vehicle and brazenly advertised it for sale within days.  The 1st defendant, in cahoots with the 2nd defendant, assisted him to sell it on knowing it was stolen.

37.  I have considered the facts of the offences, mitigation put forward, the backgrounds of the defendants and their pleas.  I have considered when offences have been committed and repeated within a short period of time.  Accordingly, I take the following starting points and reduce them all by one-third to reflect pleas.

38.  The 1st defendant:

Charge 1, I take a starting point of 1 year and 6 months, which is reduced to 1 year’s imprisonment.

Charge 2, I take a starting point of 1 year and reduce it to 8 months’ imprisonment.

Charge 3, I take a starting point of 3 years and reduce it to 2 years’ imprisonment.

Charge 4, I take a starting point of 2 years and 6 months and reduce it to 1 year and 8 months’ imprisonment.

Charge 5, I take a starting point of 6 weeks and reduce it to 4 weeks’ imprisonment.

Charge 6, I take a starting point of 3 months and reduce it to 2 months’ imprisonment.

Charge 7, I take a starting point of 3 years and reduce it to 2 years’ imprisonment.

Charge 8, I take a starting point of 3 years and 6 months and I reduce it to 2 years and 4 months’ imprisonment.

Charge 9, I take a starting point of 9 weeks and reduce it to 6 weeks’ imprisonment.

Charge 10, I take a starting point of 3 months and reduce it to 2 months’ imprisonment.

Charge 11, I take a starting point of 1 year and 3 months. I reduce it to 10 months’ imprisonment.

Charge 13, I take a starting point of 3 years and 6 months and I reduce it to 2 years and 4 months’ imprisonment.

Charge 17, I take a starting point of 1 year and 6 months and reduce it to 1 year’ imprisonment.

Charge 18, I take a starting point of 1 year and 3 months and reduce it to 10 months’ imprisonment.

Charge 19, I take a starting point of 3 years and I reduce it to 2 years’ imprisonment.

Charge 20, I take a starting point of 1 year and 6 months and I reduce it to 1 year’ imprisonment.

Charge 21, I take a starting point of 2 years and 6 months and reduce it to 1 year and 8 months’ imprisonment.

Charge 22, I take a starting point of 3 years and reduce it to 2 years’ imprisonment.

Charge 23, I also take a starting point of 3 years and reduce it to 2 years’ imprisonment.

39.  For the 2nd defendant:

For Charge 12, I take a starting point of 3 years and reduce it to 2 years’ imprisonment.

Charge 14, I take a starting point of 6 months and reduce it to 4 months’ imprisonment.

Charge 15, I take a starting point of 6 months and reduce it to 4 months’ imprisonment.

Charge 16, I impose a fine of HK$500.

Disqualification from driving any class of vehicle or taking a driving test

40.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, unless the court finds special reasons, there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

41.  I am satisfied that a period of 18 months’ disqualification is appropriate.  For the 1st defendant and in relation to Charges 6 and 10, he is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.  Both these disqualifications orders are to run concurrently.

42.  For the 2nd defendant and in relation to Charge 15, he is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months from today.

43.  By virtue of section 69(1)(c) of the Road Traffic Ordinance, Cap 374, a person who steals a motor vehicle may be disqualified for such period as the court thinks fit.  I will impose for both defendants a term of 4 years’ disqualification.  Therefore, in relation to the 1st defendant and Charges 3 and 8, he is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years from today to run concurrently with all other disqualification orders.

44.  For the 2nd defendant, in relation to Charge 12, he is similarly disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 4 years.  The 2nd defendant also faces a charge of driving whilst disqualified which attracts a mandatory disqualification period (Charge 14).  For this charge I impose a disqualification period of 12 months.  According to section 44(3) of the same Ordinance, this period of disqualification shall be in addition to any other period of disqualification ordered under any provision of this same Ordinance.

45.  Since I have disqualified him for a period of 4 years by virtue of section 69(1)(c), this 12-month period will be in addition to the 4-year period of disqualification.  The now 5‑year disqualification period will run from today and concurrent with the other disqualification order.

Totality principle

46.  As far as the 1st defendant is concerned, I have taken into account that these offences can be grouped into seven separate groups of offences.  Charges 1 and 2 are the first group, Charges 3 to 6 and 8 to 11 are separate groups.  Charges 7 and 13 are singular separate incidents. Therefore, for example, there are three occasions where the 1st defendant either stole a vehicle or handled a vehicle as stolen goods.  He had possession of counterfeit money on two separate occasions.  He had possession of numerous identity cards or copies of identity cards and has on numerous occasions represented himself to be someone other than himself and produced an identity card either to a victim or, on two occasions, two different police officers. Charges 17 to 20, another group, arise out of what the police found after they arrested him for having committed Charge 13.  Charges 21 to 23, the last group, arise out of his possessions found in his rucksack left in a hotel room.

47.  I have considered these seven separate groups or incidents, their timings, his criminality and culpability, and I find a global term of imprisonment of 4 years appropriate after plea.

48.  Therefore, I order that:

3 months of Charge 1 be served consecutively to Charge 13

3 months of Charge 3 be served consecutively to Charge 13

4 months of Charge 7 be served consecutively to Charge 13

3 months of Charge 8 be served consecutively to Charge 13

3 months of Charge 17 to be served consecutively to Charge 13

4 months of Charge 21 to be served consecutively to Charge 13

49.  That is an additional 20 months to be added to Charge 13, the balance of all charges to be served concurrently. Accordingly, the 1st defendant is sentenced to a total of 4 years’ imprisonment.

50.  For the 2nd defendant, I order that all the charges he faces which have resulted in a term of imprisonment, namely Charge 12, 14 and 15, to be served concurrently.  That is a total of 2 years’ imprisonment.

51.  He is in breach of a suspended sentence imposed in WKCC 3775/2019 on 11 December 2019 and I order that he now serve the 2 months’ imprisonment imposed in that conviction.  This 2 months will be served consecutively to the 2 years of imprisonment imposed here.  Accordingly, the 2nd defendant is sentenced to a total of 2 years and 2 months’ imprisonment.  The fine of $500 imposed in Charge 16 to be paid within 14 days from today. In default, 2nd defendant is to serve 4 days’ imprisonment.