HKSAR v. CHIN CHIN FAI AND ANOTHER

DCCC 129/2020

[2021] HKDC 373

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 129 OF 2020

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REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty variously before me to nine charges on a Charge Sheet consisting of 12 charges as follows.

2.  D1 pleaded guilty to Charges 1, 2, 3, 6, 7, 11 and 12.  D2 pleaded guilty to Charges 3 and 4.

3.  Upon the application of the prosecution, I ordered that Charges 8 to 10, all against D1, be left on court file, not to be proceeded with without the leave of this court or the Court of Appeal.

4.  Charge 1 is Theft against D1 only; particulars are that he, on or about 27 November 2019, on a private car bearing registration mark RZ3247, near Lamppost No AB2262, Shatin Pass Road, Wong Tai Sin, Kowloon, in Hong Kong, stole one Octopus card, one jacket, one dashboard camera, one earphone, one anti-theft device, one bag, one passport and some money, property belonging to Pan Jingjun.

5.  Charge 2 is Attempted theft against D1 only; particulars are that he, on the same date, at the same place, attempted to steal the same car.

6.  Charge 3 is Theft against D1 only; particulars are that he, on 28 November 2019, near Wong Tai Sin Hospital, Shatin Pass Road, Wong Tai Sin, Kowloon, in Hong Kong, stole one light goods vehicle with chassis number JTFHA02P30800023, property belonging to BUDA SURVEYING LIMITED.

7.  Charge 4 is Theft against D2 only; particulars are that she, on 28 November 2019, on the same light goods vehicle, near the parking space of Parking Meter No 27013B, Shing Wan Road, Tai Wai, New Territories, in Hong Kong, stole one wallet, one Hong Kong Identity Card, one Octopus card, two credit cards, one ATM card, one driving licence, cash of $2,020 Hong Kong currency, one external battery and one dashboard camera, property belonging to Lee Tze Kin.

8.  Charge 5 is against D2 only.  The offence is Allowing to be carried in a conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap 210.  Particulars are that she, on 28 November 2019, in Hong Kong, knowing that a conveyance, namely, the same light goods vehicle, had been taken without having the consent of the owner or other lawful authority, allowed herself to be carried in it.

9.  Charge 6 is Driving while disqualified against D1 only; particulars are that he, on 28 November 2019, in Hong Kong, being a person who was disqualified from holding or obtaining a driving licence, while he was disqualified, drove a motor vehicle, namely the same light goods vehicle, on a road.

10.  Charge 7 is Using a motor vehicle without third party insurance against D1 only; particulars are that he, on 28 November 2019, used a motor vehicle, namely the same light goods vehicle, on a road when there was not in force in relation to the user thereof by him such a policy of insurance or such a security in respect of third party risks as complied with the requirement of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

11.  Charge 11 is Possession of poisons included in Part I of the Poisons List, contrary to sections 23(1), 33(1) and 34 of the Pharmacy and Poisons Ordinance, Cap 138, against D1 only.  Particulars are that he, on 28 November 2019, on the same light goods vehicle, near the same parking space, had in his possession poisons included in Part I of the Poisons List, namely 0.49 gramme of a tablet fragment containing sildenafil, one capsule containing sildenafil and one tablet containing tadalafil otherwise than in accordance with the provisions of the Pharmacy and Poisons Ordinance, Cap 138.

12.  Charge 12 is Possession of apparatus fit and intended for the inhalation of a dangerous drug, contrary to section 36(1) and (2) of the Dangerous Drugs Ordinance, Cap 134, against D1 only.  Particulars are that he, on 28 November 2019, on the same light goods vehicle, near the same parking space, had in his possession apparatus, namely one inhaling device, fit and intended for the inhalation of a dangerous drug, namely methamphetamine.

Summary of the facts admitted by D1 and D2

Charges 1 & 2 (Theft and attempted Theft against D1 only)

13.  Around 8:10 pm on 27 November 2019, PW1 parked his white private car (registration no RZ3247) (“V1”) near lamppost AB2262, Shatin Pass Road, Wong Tai Sin.

14.  PW1 returned to V1 around 5:15 am on the next day and found that V1’s driver door lock cylinder and ignition lock cylinder were prized off.  V1’s interior was ransacked with items lost, namely an octopus card, a jacket, a dashboard camera, a bluetooth earphone, an anti-theft device, and a brown cross-body bag containing PW1’s passport and some coins (less than HK$100).  The total value of the stolen items was HK$1,430 (coins excluded) and the total repair cost for V1’s damage was HK$1,000.

Charge 3 (Theft against D1 only) and Charge 5 (Allowing to be carried in a conveyance[1] against D2 only)

15.  PW2 worked as a surveying officer for the company BUDA SURVEYING LIMITED.  Meanwhile, around 1:30 am on 28 November 2019, PW2 drove the company’s yellow light goods vehicle (registration no BU1421, chassis number JTFHA02P308000223) (“V2”) to Shatin Pass Road, Wong Tai Sin, near Wong Tai Sin Hospital.  He parked V2 on the far left lane with the car key intact and the engine was switched on, and the emergency light of V2 was flashing to warn other drivers.

16.  PW2 and his colleagues went to nearby manholes to start surveying.  Around 50 minutes later, PW2 gave a look for V2 and found that V2 disappeared.  Around 2:41 am on the same day, PW2 checked V2’s GPS, which indicated that V2 was at Shing Wan Road, Tai Wai.  He reported the address to the police.

17.  At 2:55 am on the same day, the police officers spotted V2 which was parked between two light goods vehicles (registration no PL7865 (“PL7865”) and GG759 (“GG759”) respectively) at Shing Wan Road, Tai Wai.  The police officers found D1 (with one black glove already put on and the other black glove in hand) was sitting at V2’s driver’s seat and using a phone’s GPS, while D2 was sitting at V2’s left rear passenger seat to search around.  When the police revealed their identity and demanded a search, D1 put down his gloves and ran.  However, D1 was then intercepted and subdued by the police officers.

18.  Yellow and black tapes and red sprays were applied on various parts of V2’s body to hide the company name, logo and contacts.  V2’s front and rear number plates were damaged.  The cost to remove the spray on V2 was around HK$3,000.

19.  PL7865’s front number plate and GG759’s rear number plate were removed and installed on V2.  The total replacement cost for the number plates on PL7865 and GG759 was around HK$390.

Recovered Items and Other Tools

20.  PW2 found the following items which did not belong to him inside V2:-

(a)  A black sport bag at the front passenger seat, containing an electric screwdriver, a hammer, a spanner, an earphone;

(b)  A Pamela Youde Nethersole Eastern Hospital anniversary octopus card at the coin storage of the driver seat’s door; and

(c)  A white paper bag containing a passport and a dashboard camera was found inside PW2’s red rucksack which was placed at the rear passenger seat.

21.  PW1 confirmed that the above anniversary octopus card, passport and dashboard camera belonged to him and were stolen from V1.

Charge 4 (Theft against D2 only)

22.  D2 was also arrested and searched.  PW2’s properties including a Hong Kong identity card, 2 credit cards, an ATM card, a driving licence, an octopus card and HK$2,020 cash contained in his wallet, V2’s dashboard camera (valued at around HK$3,000) and PW2’s external battery were found inside D2’s black handbag.

23.  Under caution at the scene, D2 admitted that she stole the wallet, battery and dashboard camera out of momentary greed.

Charges 11-12 (Drug-related offences against D1 only)

24.  At the front passenger seat of V2, there was an ICE flask (E1) and a bottle containing 3 pills (E2-4) found inside D1’s black cross-body bag.

25.  Government chemist later confirmed that:-

(a)  E1 is a plastic cap attached with two plastic straws and a bulb shaped glass tube containing 0.04g of a solid containing methamphetamine;

(b)  E2 is a plastic bag containing 0.49g of tablet fragment containing sildenafil;

(c)  E3 is a capsule containing sildenafil; and

(d)  E4 is a tablet containing tadalafil.

26.  In subsequent cautioned video-recorded interviews, D1 and D2 admitted the offences.

Charge 6 (against D1 only)

27.  On 21 February 2018, the District Court ordered that D1 be disqualified from driving for 18 months; D1 was further ordered to re-take his driving test and to attend a driving improvement course.  As D1 had failed to comply with the said order, D1 did not have a valid driving licence.

Charge 7 (against D1 only)

28.  At the material time, D1 was driving V2 on a road and D1 was not covered by a valid third party insurance.  The policy of insurance in force for V2 at the material time did not cover drivers who were (1) disqualified from holding the relevant driving licence and/or (2) were not permitted to drive V2 by the said policy holder.

Criminal records and Road Traffic records

29.  D1 has 32 previous criminal convictions including 4 thefts, 9 burglaries, 6 dangerous drug-related convictions, and 8 road traffic-related criminal convictions.  He also has 2 other purely road traffic convictions.

30.  D2 has 11 previous convictions including 5 thefts.

Antecedents

31.  D1 is aged 40 (39 at the time of the offences), educated to lower secondary level, and has been a decoration worker.  His last discharge from prison was on 20 September 2019.  He lived with his mother and son.

32.  D2 is aged 41 (39 at the time of the offences), educated to lower secondary level.  Her last discharge from prison was on 17 February 2018.  She lives with her husband.

Mitigation

D1

33.  Mr David Boyton of counsel assigned by the Director of Legal Aid mitigated on behalf of D1.

34.  The following is a summary of the mitigation submissions.

35.  D1 was a casual renovation worker earning $20,000 a month at the time of arrest.  He is divorced; D2 was his girlfriend.  He pleaded guilty at the earliest opportunity which entitled him to the full 1/3 discount.

36.  Mr Boyton referred to the case of HKSAR v Muhammad Waqas [2019] 4 HKLRD 323 and submitted that the Court of Appeal there held that theft of a motor vehicle was serious and took a starting point of three years’ imprisonment.  Mr Boyton submitted that D1’s assertion that he was trying to impress D2 might be a mitigating factor.  Mr Boyton also emphasized that D1 did not use false number plates to conceal his crimes.

37.  It was also submitted that as regards Charge 2 – the attempted theft of a vehicle – there was no loss or extensive damage and therefore a lower starting point might be warranted.  Mr Boyton suggested that had D1 completed the crime in relation to this vehicle, he might not have gone on to commit Charge 3 – the actual theft of another vehicle.  In any event, Mr Boyton asked for slightly consecutive sentences in relation to these two charges.

38.  For Charge 1 – theft from vehicle – Mr Boyton referred to the case of HKSAR v Cheung Wing Sun, HCMA 1088/2007, and suggested a starting point of between 4 and 15 months and he laid emphasis on the fact that no mobile phones had been stolen.

39.  Mr Boyton further asked that the two sentences for Charges 1 and 2 to be made wholly concurrent.

40.  As regards Charge 7 – Using a motor vehicle without 3^rd party insurance – Mr Boyton relies on the case of Waqas (above) to submit that 3 months’ imprisonment after plea would not be wrong but submitted that the 24 months’ disqualification (12 months more than the mandatory minimum) imposed in that case might not be appropriate in the present case because here there is no evidence of poor driving or traffic accident such as a crash.  Mr Boyton accepts there are no special reasons to oppose the mandatory period of disqualification.

41.  Regarding Charge 6 – Driving while disqualified – Mr Boyton acknowledged that an immediate term of imprisonment would be appropriate by referring to R v Chan Hon Piu [1986] HKC 422.

42.  In respect of Charge 11 – Possession of Part I Poisons – Mr Boyton submitted the appropriate sentence is a financial penalty.

43.  For Charge 12 – Possession of apparatus etc – it was submitted that the appropriate sentence was one of 3 months’ imprisonment: R v Law Sing, HCMA 890/1996.  I understood it to be so after a plea of guilty.

44.  Mr Boyton accepts that there should be consecutive sentences as among the four sets of charges, namely Charges 2 and 1 (attempted theft of a vehicle and actual theft of its contents), Charge 3 (theft of another vehicle), Charges 6 & 7 (Driving offences), and Charges 11 and 12 (drug-related offences). Within each set though, Mr Boyton asked that the sentences, where appropriate, should be made concurrent.

45.  Mr Boyton told the court that in relation to Charge 11, D1 could afford a fine of $2,000 or less out of his savings.

D2

46.  D2 mitigated on her own behalf.  The following is a summary of her mitigation submissions.

47.  D2 submitted two sentencing cases (in Chinese), namely, HKSAR v Yuen Sai Chung (阮世仲), HCMA 529/2003, in particular paras 9 & 10 thereof, and HKSAR v Cheng Cheung Yung (鄭長勇), DCCC 755/2017, in particular paras 28 and 45 thereof.  She laid emphasis on the fact that a court should not increase the sentence of an offender simply because he/she has transgressed the law before, for the offender has already been punished for the prior deeds; that in a case of theft from vehicle where there are unremarkable circumstances, the appropriate starting point could be 6 months’ imprisonment; that there is no tariff sentence for the crime of theft from vehicle and 6 months was the starting point adopted in DCCC 755/2017, another case of theft from vehicle.

48.  D2 submitted that she pleaded guilty and feels remorseful and committed the theft out of momentary greed and without premeditation.

49.  D2 further submitted that she had earlier been detained from 29 November 2019 till 21 April 2020 and that this case has dragged on for a long time.  She asked the court to give her a chance to reform.

Sentence

50.  Theft of vehicle is a serious offence.  It calls for substantial terms of imprisonment.

51.  I note that despite mitigation on behalf of D1, there was actual damage of the vehicle subject of Charge 2.

52.  Driving while disqualified and, hence, without third party insurance, is a very serious offence as other road users who are injured in any traffic accident may be left without any compensation.

53.  Because the bulk of D1’s Theft Ordinance offences dated back to the year 2003 or before, I will exercise my discretion not to enhance his sentence on the ground of his being a recidivist.

54.  As for D2, the bulk of her previous convictions for theft occurred in the year 2006 or prior.  Similarly, for this reason, I will exercise my discretion not to enhance her sentence on the ground of her being a recidivist.

55.  I take into account there is insufficient evidence to show that D2 allowing herself to be carried in the conveyance was for the purpose of committing a serious offence.

56.  I will adopt the following starting points:-

(a)  Charge 1: 6 months’ imprisonment;

(b)  Charge 2: 3 years’ imprisonment;

(c)  Charge 3: 3 years’ imprisonment;

(d)  Charge 4: 6 months’ imprisonment;

(e)  Charge 5: 1 ½ month’s imprisonment;

(f)  Charge 6: 6 months’ imprisonment;

(g)  Charge 7: 6 months’ imprisonment;

(h)  Charge 11: not applicable; and

(i)  Charge 12: 4 ½ months’ imprisonment.

57.  D1 pleaded guilty in good time, earning him the full 1/3 discount.

58.  D2 pleaded guilty in good time, earning her the full 1/3 discount.

59.  There are no other mitigating factors of sufficient weight to warrant any further discount.

60.  In sentencing D1 and D2, I will bear in mind the principle of totality.

(D1, please stand)

61.  For Charge 1, D1 is to serve a term of 4 months’ imprisonment.

62.  For Charge 2, D1 is to serve a term of 2 years’ imprisonment.

63.  For Charge 3, D1 is to serve a term of 2 years’ imprisonment.

64.  For Charge 6, D1 is to serve a term of 4 months’ imprisonment and he is to be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 12 months and he shall remain so disqualified for Classes 1 and 2 after the expiry of that period until he has again passed the test of competence prescribed under the Road Traffic Ordinance, Cap 374.

65.  For Charge 7, D1 is to serve a term of 4 months’ imprisonment and he is to be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 12 months and he shall remain so disqualified for Classes 1 and 2 after the expiry of that period until he has again passed the test of competence prescribed under the Road Traffic Ordinance, Cap 374.

66.  For Charge 11, D1 is to pay a fine of $900, to be transferred from prisoner’s property within 3 days.

67.  For Charge 12, D1 is to serve a term of 3 months’ imprisonment.

68.  The sentences for Charges 1 and 2 are to run concurrently with each other as Group A.

69.  The sentence for Charge 3 is Group B.

70.  The imprisonment sentences for Charges 6 and 7 are to run concurrently with each other as Group C.

71.  The sentence for Charge 12 is Group D.

72.  I order that 15 months of Group B, the total term of Group C, and the total term of Group D are all to run consecutively to each other and the result is to run consecutively to Group A.  The aggregate sentence for D1 is therefore 46 months’ imprisonment.

73.  I further order that the two disqualification orders are to run concurrently.

(D2, please stand)

74.  For Charge 4, D2 is to serve a term of 4 months’ imprisonment.

75.  For Charge 5, D2 is to serve a term of one month’s imprisonment, to be served consecutively.