HKSAR v. LO HON KWAN AND ANOTHER

DCCC 676/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 676 OF 2015

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REASONS FOR SENTENCE

1.  D1 pleaded guilty to 1 charge of "Attempting to handle stolen goods" (Charge 1).

2.  D2 pleaded guilty to 2 charges of "Driving while disqualified" (Charges 2 and 6); 2 charges of "Using a motor vehicle without third party insurance" (Charges 3 and 7); 1 charge of "Taking conveyance without authority" (Charge 4); and 1 charge of "Dangerous driving" (Charge 5).

Summary of Facts

The Stolen Vehicle (V1)

3.  Mr. K.W. LAU (PW1) is the registered owner of private car  FD 609 ("V1").  About noon on 19 May 2015, PW1 parked V1 in an open area near DD 119 Lot 636, Pak Sha Tsuen, Kung Um Road, Yuen Long.

4.  About 2:40 pm on the same day, PW1 saw V1 being driven away by an unknown male.  He reported the case to the Police.

Afternoon on 25 May 2015

5.  About 2:30 pm on 25 May 2015, the Police discovered V1, which was parked in the carpark of Yee Fung Garden, 38 Ma Tin Road, Yuen Long.  A false licence plate (GU 9409) was hung on V1.  Police officers decided to lay ambush in the vicinity.

6.  About 4:10 pm, a private car SX 7886 ("V2") arrived and stopped outside the carpark.  V2 was driven by D2, with D1 on board.  D1 alighted from V2 and entered the carpark.  He approached V1 and walked around it.  He also looked inside V1 through its windows. Afterwards, D1 returned to V2 to chat with D2.

7.  Later, D1 went to the carpark and approached V1 again.  He tried to open its door.  At that moment, police officers rushed forward and arrested D1.

8.  Upon search, a car key, which could open the doors and start the engine of V1, was found on D1.  Under caution, D1 admitted that he was instructed by a male named E.K. FUNG to drive away a stolen vehicle (namely V1) in return for a reward of $200.  This is Charge 1.

9.  Police officers tried to intercept V2 but without success.  D2 drove away V2 from the scene.

10.  It was discovered later that on 29 November 2012, D2 was disqualified from driving for 3 years (i.e. until 28 November 2015).  In other words, D2 drove V2 while he was disqualified (Charge 2) and without 3^rd party insurance (Charge 3).

Evening on 25 May 2015

11.  About 9:35 pm on the same day, police officers were on unmarked police vehicles (PV1 to PV3) patrolling along Kiu Hing Road, Yuen Long.  Having spotted V2 (which was driven by D2), PV2 and PV1 stopped in front of and beside V2 respectively.  PC 9407 (who was on board of PV1) declared his police identity to D2.

12.  D2 ignored the police instructions and tried to flee.  He drove V2 forward and bumped against PV2.  He then reversed and attempted to flee.  Police officers drove PV1 and PV2 to block V2 from behind. D2 did not stop and bumped against PV1 and PV2.  As V2 was completely blocked by PV1 to PV3, D2 stopped V2 and was arrested.  This is Charges 5, 6 and 7.

13.  As a result of D2's driving, V2, PV1 and PV2 were damaged.  PC 5709 (driver of PV2) sustained tenderness on neck muscle.

14.  Under caution, D2 claimed that he did not know PV1 to PV3 were police vehicles.  He thought his enemy was looking for him to seek revenge.  He therefore attempted to drive V2 away.  Regarding the earlier incident in the afternoon, D2 admitted that he has known D1 for 3 to 4 years. He had lunch with D1 that day and drove him to the carpark of Yee Fung Garden. He, however, did not know why D1 wanted to go there.

Ownership of V2

15.  Mr. W.K. LAU (PW2) is the registered owner of V2. On 30 April 2015, he agreed to sell V2 to D2 at $30,000.  He allowed D2 to pay by 6 instalments.

16.  Since D2 had agreed to pay the 1^st instalment ($5,000) by 9:00 pm on the same day, PW2 gave the car key to D2 and allowed him to drive V2 away.  D2, however, did not make any payment.  Despite numerous discussions, D2 still did not make any payment to PW2.

17.  On 14 May, PW2 informed D2 that the sale of V2 was cancelled and demanded the return of V2.  Thereafter, D2 was out of contact and did not return V2 to PW2.  Between 14 and 25 May, D2 drove V2 without authority.  This is Charge 4.

Mitigation

D1

18.  He is 45 and has 21 conviction records, which include 2 "Handling stolen goods" offences and over 15 theft-related offences.  He also has numerous convictions which are drug-related.  Defence counsel Mr. SO informed me that D1 is single and resides with his father.

19.  In mitigation, Mr. SO submitted that D1 was only a "small fly" in this matter.  He was asked to drive V1 away (after it had been stolen and parked at the carpark).  There is no evidence showing that D1 was involved in stealing V1.  Mr. SO accepts that D1 has a long criminal record, but his last offence which involved dishonesty was over 10 years ago.  His recent offences were mainly drug-related.

D2

20.  He is 31 and has 7 conviction records, which include 2 offences of "Driving while disqualified", 2 offences of "Using a motor vehicle without third party insurance" and 1 offence of "Dangerous driving".  Defence counsel Mr. YEUNG informed me that D2 is single and resides with his father and 2 elder brothers.  D2 works for his father as a clerk earning $12,000 per month

21.  In mitigation, Mr. YEUNG submitted that 5/6 of the disqualification period (30 months out of 3 years) had lapsed when the present offences took place.  D2 had only driven V2 on 2 days (the day when he took possession of the car and the day of the offences).  Furthermore, D2 had chosen to drive in some quiet areas.

22.  Regarding Charge 4, Mr. YEUNG submitted that D2 is no stranger to PW2[1]. PW2 could easily locate D2.  D2 genuinely wanted to pay PW2; D2 was just too busy with work.  Regarding Charge 5, Mr. YEUNG submitted that D2 was panicking; he was afraid to be caught again.  Mr. YEUNG explained that D2 did not tell the truth under caution, but wants to be honest to the court now.

Sentence

D1

23.  He knew V1 was a stolen vehicle, and he was about to drive it away for a reward of $200.  His culpability cannot be said to be significantly less than the actual car thief.  Worse still, D1 has multiple convictions of theft-related offences.  Bearing in mind the value of V1 ($150,000), I adopt a starting point of 15 months' imprisonment.  With the guilty plea, the sentence is reduced to 10 months.  I see no other mitigating factors which warrant any further reduction. I sentence D1 to 10 months' imprisonment for Charge 1.

D2

Charges 2 and 3

24.  These are D2's 3^rd conviction of similar offences.  It is plain that Charge 2 constitutes a flagrant breach of a disqualification order.  In respect of Charge 3, D2 has deprived all potential victims of adequate financial protection.  Immediate custodial sentences are required for both charges.  I adopt a starting point of 6 months' imprisonment for each charge.  With the guilty plea, the sentence is reduced to 4 months.  Apart from this, I see no other mitigating factors which warrant any further reduction.  I sentence D2 to 4 months' imprisonment each for Charges 2 and 3.

Charge 4

25.  Too busy to pay is not an excuse not to return V2 to PW2.  PW2 knows how to find D2 does not mean D2 could drive away V2 without paying.  D2 had acted in an utmost irresponsible manner.  Bearing in mind the value of V2 ($30,000), I adopt a starting point of 9 months' imprisonment.  With the guilty plea, the sentence is reduced to 6 months.  I sentence D2 to 6 months' imprisonment for Charge 4.

Charges 5, 6 and 7

26.  Regarding Charge 5, D2's driving manner was simply appalling.  He drove in such a dangerous way in order to avoid apprehension by the Police.  This is his 2^nd conviction of similar offence; an immediate custodial sentence is required.  I have considered the Court of Appeal's decision in SJ v KO Wai Kit, Paul [2001] 3 HKLRD 751.  Although D2 drove dangerously, disobeyed Police commands and disregarded the safety of other road users, I do not consider Charge 5 falls within the category of the worst of its kind.  I am aware that he damaged V2 and PV1 to PV3, and caused a police officer (the driver of PV2) a minor injury.  Bearing in mind the maximum prison term for this offence is 3 years, I adopt a starting point of 12 months.  With the guilty plea, the sentence is reduced to 8 months.  I sentence D2 to 8 months' imprisonment for Charge 5.

27.  Regarding Charges 6 and 7, the reasons for Charges 2 and 3 apply.  Furthermore, despite his 1^st encounter with the Police in the afternoon on the offence date, he continued to drive V2 in the evening.  He committed the same set of offences twice on the same day, which went beyond a flagrant breach of his disqualification order.  I adopt a starting point of 9 months' imprisonment for each charge.  With the guilty plea, the sentence is reduced to 6 months.  I sentence D2 to 6 months' imprisonment each for Charges 6 and 7.

Overall Sentence

28.  D2 first took away V2 without authority.  He then drove it twice on 25 May 2015.  Chronologically, he committed the offences in this order:  Charges 4, 2, 3, 5, 6 and 7.  Charges 2, 3, 5, 6 and 7 demonstrated his criminality in progression after taking unlawful possession of V2.  I adopt a global starting point of 27 months' imprisonment for all 6 charges.  With the guilty pleas, the overall sentence is reduced to 18 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 2 and 3 concurrent;

(ii) Charge 4 consecutive to Charges 2 and 3;

(iii) 6 months in Charge 5 consecutive to Charges 2 to 4

(iv) Charges 6 and 7 concurrent; and

(v) 2 months in Charges 6 and 7 consecutive to Charges 2 to 5.

Thus, arriving at a total prison term of 18 months for all 6 charges.

29.  For all the driving offences, a disqualification order is inevitable.  For Charges 2, 3, 6 and 7, I make a disqualification order of 3 years[2] each; and they shall run concurrently from the date of conviction[3]. For Charge 5, I make a disqualification order of 2 years[4], which shall not start to run until D2 finishes serving the term of imprisonment imposed in the present case[5].

30.  D2's driving manner and his repeated flagrant disobedience of disqualification orders render him a serious threat and danger to other road users.  If he wishes to drive again, which is a privilege and not a right, he must learn properly from the very beginning.  Pursuant to section 70 of the Road Traffic Ordinance (Cap.374), I order D2 to be re-tested upon the expiry of all disqualification orders.