HKSAR v. CHOW KWUN KIT

DCCC 713/2013

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 713 OF 2013

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REASONS FOR SENTENCE

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Introduction

1.  Defendant, you have pleaded guilty before me this afternoon to four charges of theft, contrary to section 9 of the Theft Ordinance, Cap 210, and lastly to a single charge of using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.  The first three charges of theft (Charge 1 to 3) relate to the theft of, in each case, one light goods vehicle, whilst the 4th charge involves four boxes of frozen meat in the third stolen vehicle and the 5th charge was in relation to your driving or using of the stolen vehicle in the 3rd charge without a valid third party insurance.

Facts

3.  According to the Summary of Facts which you have admitted, the first three charges of the theft of vehicle happened between 15 May to 31 May this year, in a space of about half a month.  In each occasion, the light goods vehicle in question was parked on the roadside whereas the driver was busy delivering goods while leaving the ignition key at the ignition key bolt. Apparently you took the opportunity and drove the light goods vehicle away and when they returned to the vehicles, they are found the vehicles missing, and reports were made to the police.

4.  In the first two charges, the vehicles were later found by the police in Tsing Yi area.  After recovery of the vehicles, the person in-charge or the owner of the light goods vehicles inspected the vehicles and found that there was no damage to them and there were no loss to the vehicles.

5.  You were arrested after the theft of the 3rd vehicle.  On 31 May 2013, a light goods vehicle was stolen by you in a similar fashion as the first two vehicles in the Cheung Sha Wan area.

6.  In the same evening of 31 May 2013, after the case was reported, the police found you sitting at the driver’s seat of the stolen vehicle, being parked at Fat Tseung Street near Yun Fat Godown in Cheung Sha Wan.  At that time you were wearing a pair of white gloves and the engine was still running.

7.  You were intercepted by the police and were arrested after enquiry. Under verbal caution, you admitted that you stole this vehicle for sale as you did not have money.  You also freely admitted to the police that you had previously stolen the last two vehicles but you could not sell them.

8.  After the recovery of this vehicle, the owner of the vehicle positively identified his missing vehicle.  Similarly, this vehicle was not damaged but the frozen meat inside the vehicle which belonged to another company was missing from the vehicle.

9.  In a subsequent video-recorded interview, you repeated what you have told the police.  You further added that you intended to sell the first two vehicles for money. However, you could not sell them and you just left and parked the vehicles in the roadside near your residence in Cho Yiu Estate. Later you found that both vehicles were missing.

10.  In the case of the third vehicle, you admitted to the police that you later drove the vehicle to the place where you were arrested in order to meet a buyer known as Ah Lung who was going to buy this vehicle at HK$20,000.  Before you could meet this buyer, you were however arrested by the police.  As far as the frozen meat is concerned, you admitted to the police that you have discarded them at a refuse collection point.

The Criminal Records and the Background of the Defendant

11.  You are aged 35.  In the past you have 9 criminal convictions involving 15 charges.  The most serious one being two counts of robbery committed in 2006 where you were sentenced by High Court for an overall sentence of 7 years. Apart from that, there were also similar offences involving two counts of theft in 2006 and one count of taking conveyance without authority, also in the same year.  There is also one count of using a vehicle without third party insurance in the same occasion.

12.  Recently you have been convicted of two counts of common assault in April this year whereby you have received a suspended sentence of one month, suspended for 2 years by a magistrate in Tsuen Wan (TW/940/13).  In other words, you have committed the breach of the suspended sentence when you committed the present offences.

13.  While you were remanded in custody for the present offences, you were also convicted of further charges of common assault and possession of dangerous drugs and you are now serving your sentence in the DATC.

Mitigation

14.  Your solicitor, Mr Kwan, told the court that you were born and raised locally, with only Form 1 education level.  You were married and you have a 10 years old son but your wife divorced you early in this year and the son is now living with your ex-wife.  You live together with your parents who are now both in their 60s in a public housing estate in Cho Yiu Estate.

15.  You once worked as a lorry driver but when you have fallen to the habit of taking ketamine, you really could not kick the habit, even though you have been given so many opportunities before by the court by sending you to the DATC.

16.  The reason why you committed the present offences, I was told by Mr Kwan, was because you do not have enough money to feed your habit of consuming the dangerous drug. 

17.  In relation to the theft of vehicle offences, Mr Kwan had submitted to the court for consideration an authority from the High Court Attorney General v Ng Kwok Hung CAAR7/1996 where the Court of Appeal had said that the appropriate sentence for theft of a vehicle should be 3 years. 

18.  Mr Kwan urged the court to consider that the present charges were not really serious because there was no damage caused to each of the vehicles and there was no loss to the vehicles except for Charge 3 but really the frozen meat belonged to a buyer instead of the owner of the vehicle.  Lastly, Mr Kwan urged the court to consider the question of totality when imposing the overall sentences.

19.  Insofar as the breach of suspended sentence, Mr Kwan accepted that this is a breach and he can only add that it is not a similar offence and really there is nothing he can add in mitigation.

Sentencing Considerations

20.  The present three charges of theft of vehicle is of course indeed the most serious charges.  The court in Hong Kong has always been harsh to people who have committed offences of this kind.  Apart from the authority relied by the defence, I also find a case by the Court of Appeal in HKSAR v Cheng Chun Ming CACC356/2000 (unreported) where the Court of Appeal had said:-

“We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motorcars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

21.  I therefore consider that in each of the theft charge, Charge 1 to Charge 3, the proper starting point should be one of 3 years. 

22.  The only mitigating factor in this case is really your pleading guilty which is an indication of remorse and the saving of the court’s time and for which you will be given the full one-third discount.

23.  Therefore, in the case of the theft of vehicle in relation to Charge 1 to Charge 3, the sentence that I should impose for each offence is 2 years’ imprisonment.

24.  In relation to Charge 4, which is the theft of the four boxes of frozen meat, I shall adopt 3 months as a starting point.  I shall also give you a one-third discount on account of your plea.  The sentence therefore for Charge 4 is 2 months’ imprisonment.

25.  Lastly, for Charge 5, the using of a vehicle without third party insurance offence, I note that this is already the second time you had committed the same offence.  Last time you were only fined and you were disqualified for 12 months.  This time I shall use 3 months as a starting point.  Similarly, because of your plea, the sentence will be reduced by one-third to become 2 months’ imprisonment.

26.  As far as the disqualification period is concerned, the law requires the court to pass a disqualification order for not less than 12 months but not more than 3 years.  As I said, for this similar offence you have already been disqualified for 12 months.  This time, taking into account that you are going to serve quite a lengthy sentence, if I impose a disqualification order for just a very short period, it will render the whole disqualification order meaningless.  Therefore, in the end, I consider that a longer period of disqualification order is necessary.

27.  Taking into account the sentences that I am going to pass and the remission that you are going to receive while serving your prison sentence, I order that you shall be disqualified from holding or obtaining a driving licence for all classes of vehicles for 32 months. 

28.  Lastly, the question of totality.  There are altogether three charges of theft of vehicle in this case.  The first vehicle was valued at about HK$200,000, whereas the second and the third vehicles were valued respectively at about HK$40,000.  As I said, the three charges of theft happened in a short space of only half a month.  I consider that for Charge 2 and Charge 3, in each charge, 4 months’ imprisonment shall run consecutively to Charge 1, making the total sentence for Charge 1 to Charge 3 to one of 32 months’ imprisonment.

29.  For Charge 4 and Charge 5, considering the totality principle, the sentence shall run concurrently with each other and also with the total sentence on Charge 1 to Charge 3.  In other words, the total sentence on Charge 1 to Charge 5 is still 32 months’ imprisonment.

Breach of the Suspended Sentence

30.  I see no reason why the suspended sentence should not be activated so I order that the one month sentence which has been suspended be activated.  This sentence is to be served wholly consecutively to your sentence of 32 months’ imprisonment. This brings your overall sentence to 33 months’ imprisonment.