HKSAR v. CHOW WAN HI AND OTHERS

DCCC 1012A/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1012A OF 2015

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REASONS FOR SENTENCE

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D1

1.  D1 was found guilty of a count of conspiracy to handle stolen goods (2^nd Charge) after trial.  Before the trial started, he pleaded guilty respectively to a count of Driving while disqualified (4^th Charge), Using a motor vehicle without third party insurance (5^th Charge) and Possession of a dangerous drug (12^th Charge).

2.  D1 is 56 years old and separated with his wife in 2006 with two grown-up children.  He is currently living with his brother and working as a casual worker in transportation earning $450 per day.  D1 has submitted a mitigation letter expressing his remorse and having applied for donation of organs after death recently.

3.  He has been a drug addict since 1980.  D1 had 14 previous criminal records from 1979 to 2014.  Eight of which are dangerous drugs related and three of which involving dishonesty.  It is the third time D1 committing the offence of Driving while disqualified in one and a half years’ time and the 4^th time he committing the offence of Driving without third party insurance within 3 years’ time. 

2^nd Charge

4.  In respect of the 2^nd Charge, it is noted that stealing or handling of a stolen motor vehicle is always considered to be a serious crime, so is a related conspiracy.  In HKSAR v Chiu Kwok Wai, CACC 294 of 2006, the Court of Appeal considered that a term of 4 years imprisonment after trial for the offence of attempting to handle two stolen cars was not excessive.  In that Chiu case, two stolen cars were involved.  The applicant was not a lone culprit, but acted in concert with others.  There was a certain degree of planning and sophistication involved. To facilitate his attempt to handle the stolen goods, the applicant also had in his possession a forged car licence plates, which was an aggravating feature.

5.  In a recent case of HKSAR v Kan Tak Man, CACC 122/2016, the trial judge considered the changing of the number plate and vehicle licence to avoid detection, the fact that the applicant had never passed a driving test and the lack of any third party insurance to be aggravating features of the theft of vehicle.  Accordingly, he took a starting point of 3 years and 6 months’ imprisonment, which he further increased by 6 months in view of the applicant’s record of persistent offending, resulting in a notional sentence after trial of 4 years’ imprisonment.  Given the guilty plea, the sentence was reduced to 2 years and 8 months’ imprisonment.  Macrae JA confirmed the sentence to be an appropriate one in that Kan case.

6.  There is no sentencing guideline for the offence of handling stolen goods and the sentence of which is very fact sensitive.  I have considered a number of other authorities^[1] and concluded that in similar cases of car theft or handling cases, the starting point ranges from 3-4 years depending on specific facts of each case.  The Court of Appeal however emphasized that the defendant being a car dealer was a serious aggravating feature.  In considering the sentence, this court has taken in account the following factors:-

(1) the scale of the syndicate, if any;

(2) the role of the defendant;

(3) the value of the stolen property;

(4) background of the defendant.

7.  In the present case, D1 was instructed by Wong to deliver the stolen Isuzu light good vehicle to the garage in question for reselling.  Apart from driving, D1 was involved in negotiating the price and handling of the registration document.  The value of the stolen car was $18,000 and D1 would be rewarded with $2,000 which he claimed he had yet received.  D1 had 3 previous convictions of dishonesty related offences.  I consider that a starting point of 3½ years’ imprisonment is appropriate.  As D1 was convicted after trial for this offence, I do not see there is any ground warranting further discount.

4^th and 5^th Charges

8.  In respect of 4^th charge, despite the short distance D1 has driven, he seemed to have learned no lessons from his previous offending which posed a persistent irritant as well as risk to the safety of the public.  It was the third time he committing the same offence within less than 2 years.  I consider that a starting point of 9 months’ imprisonment to be appropriate.  Discounted by one third for his own plea of guilty, the sentence is reduced to 6 months’ imprisonment.  4 months of which are to be served consecutively to the sentence on the 2^nd Charge, given the totality principle. 

9.  I can see no special reasons not to disqualify the defendant from further driving. I now order him to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 5 years given it is the third time he committing the same offence of driving while disqualified.

10.  Regarding the 5^th Charge, it was the 4^th time D1 committing the same offence within 3 years’ period.  It is entirely appropriate, and consistent with authority, to inject a significant element of both public and personal deterrence into the sentence.  I consider a starting point of 9 months’ imprisonment to be appropriate and the same is reduced to 6 months after his guilty plea.  Given the totality principle, the 6 months sentence is to be served wholly concurrently with the other sentences.

11.  In light of the mandatory disqualification order provision under section 4(2) (a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, I also order D1 to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 3 years, which will run concurrently with the disqualification order for the 4^th Charge.

12.  sup>th Charge

12. The 12^th Charge involved possession of 8.64g of methamphetamine hydrochloride commonly known as “ice” by D1 for his own consumption. In HKSAR v Mok Cho Dik [2001] 1 HKC 261 involving possession of 15.72g of “ice”, Stock JA, as he then was, made it plain that:-

“we remain of the view that the starting point for mere possession of a quantity of dangerous drugs which a bona fide user would normally have in his possession should be in the range of 12 to 18 months imprisonment. In that case, the sentence was further enhanced by 12 months due to risk factor and effect of recidivism.”

13.  In the present case, it was said in mitigation that the drug was enough for one week’s consumption only.  I take a starting point of 12 months’ imprisonment which was enhanced by 3 months due to his repeated offending for similar offences.  After 1/3 discount due to his guilty plea, the sentence is reduced to 10 months.  This 12^th Charge and other charges D1 was facing are offences of totally different nature.  However, given the totality principle, I order 4 out of 10 months of the sentence to be served consecutively to other sentences.

14.  As such, the total sentence imposed on D1 is 50 months’ imprisonment^[2].

D3

15.  D3 pleaded guilty to a count of Conspiracy to make false instruments (1^st Charge) and another count of Possession of a dangerous drug involving 2.21g of “ice” (13^th Charge).  She pleaded not guilty to the 14^th Charge (Possession of apparatus fit for smoking of a dangerous drug), which is ordered to be left in court’s file and cannot be proceeded with without court’s leave.

16.  D3 is 26 years’ old and a mother of 5 year’ old daughter.  She has worked as a beautician before.  Her father was in court supporting D3 on every occasion.  It was mitigated that D3 had been requested by Wong Man Kit, now at large, who was residing with her and leasing the premises in question to make the photocopy of the 3 vehicle registration documents and 3 vehicle licenses. 

17.  D3 has one previous criminal record of possession of a dangerous drug and was sentenced to DATC in 2013.  Medical proof was submitted to the court showing D3 has been suffering from problem on her kidney which was said by her counsel to be possibly caused by her previous consumption of dangerous drugs.  D3 is remorseful now and asks for leniency as she wants to rehabilitate and take care of her young daughter as soon as possible.

1^st Charge

18.  In respect of the 1^st Charge, there is no sentencing guideline and sentence varies depending on facts of each case.  The offences concerned 6 photocopies of false vehicle documents and the scale could not be regarded as substantial.  D3 had two accomplices, Wong and Lau as revealed from the charge and summary of facts.  The role of D3 is apparently not the ringleader and she does not have similar record before. There was no evidence showing D3 was involved in the vehicle stealing syndicate as revealed in the trial.  Having considered all the circumstances of the case, I take a starting point of 9 months’ imprisonment in respect of the 1^st Charge. Given her guilty plea, the sentenced is reduced to 6 months’ imprisonment.

13^th Charge

19.  Regarding the 13^th Charge, the dangerous drug involved is 2.21g of “ice”.  The drug was said to be for her own consumption and D3 was sentenced to DATC in 2013.  I take a starting of 12 months’ imprisonment and the same was reduced to 8 months given her guilty plea.  In light of the totality principle, I order 8 months of the same to be served consecutively to the sentence imposed on the 1^st Charge. 

20.  The total sentence imposed on D3 is therefore 14 months’ imprisonment.

D4

21.  D4 pleaded guilty to the following charges:-

(1) Driving while disqualified (7^th Charge);

(2) Using a motor vehicle without third party insurance (8^th Charge);

(3) Handling stolen goods (9^th Charge);

(4) Possession of an identity card relating to another person (10^th Charge);

(5) Going equipped for stealing (11^th Charge).

22.  He pleaded Not guilty to the 1^st Charge (Conspiracy to make false instrument), which is ordered to be left in court’s file and cannot be proceeded with without court’s leave.

Summary of facts for D4

23.  The facts revealed that D4 was found on 21 July 2015 driving a stolen private vehicle bearing registration number SN 9874 which was found missing in May 2015.  At the material time, D4 was disqualified from driving vehicles of various types including the aforesaid vehicle.  He was also found using the same vehicle without third party insurance.

24.  Inside the aforesaid vehicle, there was found a Hong Kong identity card in the name of Chan Hiu Tung with number Y041584(5) placed on top of the gear lower box.  Chan confirmed that he never owed the aforesaid vehicle.  He reported the loss of his ID card before and did not know D4.

25.  On the floor beside the driver’s seat, there were found ten screwdrivers, three pairs of scissors, one pair of pliers, one hammer, one electric drill, three pieces of metal and two torches.  D4 admits that those were in his possession for the use in the course of or in connection with burglary or theft.

Mitigation

26.  D4 is 35 years old, divorced with a 16-year-old daughter and a 2-year-old son.  He is currently living with her girlfriend and has been working as a subcontractor of construction projects earning $20,000 per month.  He had 4 criminal records, one being similar conviction of driving unlicensed vehicle and without third party insurance in 2015.  In his traffic records, D4 was convicted of causing or permitting another person to use vehicles without insurance and careless driving in 2013.  Additionally, he was sentenced to failing to give information on demand in 2014 and 2016 respectively.

Consideration of sentence for D4

9^th Charge - Handling stolen goods

27.  In respect of the 9^th Charge, the value of stolen property was not known from the summary of facts, but given it was a second hand Honda Saloon car, the value involved could not be regarded as substantial.  No evidence suggested that D4 was involved in a syndicate and no other accomplice was revealed in the case, I take a starting point of three years imprisonment. Given his guilty plea, the sentence is reduced to 2 years’ imprisonment.

7^th Charge - Driving while disqualified

28.  In respect of 7^th Charge, from his previous criminal and traffic record, D4 showed blatant disregard for the law and order.  Obviously, the previous sentence imposed on him was not effective to deter him from reoffending.  Having considered all the circumstances, I take a starting point of 6 months’ imprisonment.  Full one third discount is warranted given his guilty plea.  The sentence is reduced to 4 months’ imprisonment.  3 months of which are to be served consecutively to the sentence imposed on 9^th Charge.

29.  I can see no special reasons not to disqualify the defendant from further driving.  I now order him to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years.

8^th Charge - Using a vehicle without third party insurance

30.  Regarding 8^th Charge, with similar reasons given above, I take the same starting point of 6 months’ imprisonment. The 4 months’ imprisonment after plea is to be served wholly concurrently with the sentence of other charges.

31.  In light of the mandatory disqualification order provision, I also order D4 to be disqualified from holding or obtaining a driving licence for all classes of vehicles for 2 years, which will run concurrently with the disqualification order for the 7^th Charge.

10^th Charge - Possession of identity car relating to another

32.  In respect of 10^th Charge, I have considered the case of HKSAR v Fan King Lam（樊憬霖）, CACC 220/2010.  The applicant in that case was charged with two offences, one of them being possession of identity cards relating to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance.  The Court of Appeal said, in paragraph  17:-

“We accept, of course, that the present applicant is a Hong Kong permanent resident and not someone staying in Hong Kong by permission. There is no specific tariff for such a case. While it is true that there could be no issue of seeking unlawful employment, we see no ground to say that the 12 months is not applicable in this case.”

33.  In paragraph 20 of  Fan King Lam (supra), the Court of Appeal further said:-

“In the present case, although the cards were not forged and the defendant was a Hong Kong permanent resident, we are of the view that, given the circumstances, 12 months after plea is neither wrong in principle nor manifestly excessive, particularly when the applicant was in possession of two identity cards relating to another.”

34.  In the present case, one identity card of another was found inside the stolen vehicle D4 was driving.  Having considered all the circumstances, I consider 12 months’ imprisonment after guilty plea to be appropriate and 6 months of which are to be served consecutively to the other sentences, in light of totality principle.

11^th Charge - Going equipped for stealing

35.  In sentencing for 11^th charge, I take a starting point of 6 months’ imprisonment, which is reduced to 4 months after guilty plea.  I order 3 months of which to be served consecutively to other sentences.

36.  As such, the total sentence to be served by D4 is 3 years’ imprisonment^[3].