HKSAR v. GURMEET SINGH

DCCC 794/2019

[2020] HKDC 603

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 794 OF 2019

---------------------------

----------------------------

-----------------------------------------

REASONS FOR SENTENCE

------------------------------------------

1.  The defendant pleaded guilty to the following charges:-

(1) Theft;

(2) Handling Stolen Goods;

(3) Resisting a police officer in the execution of his duty;

(4) Possession of a dangerous drug;

(5) Possession of apparatus fit and intended for the inhalation of a dangerous drug;

(6) Using a motor vehicle without third party insurance;

(7) Driving without a valid driving licence.

Facts

2.  At all material times, Richwell Civil Engineering Limited (“Richwell”) was engaged in a construction project in Tsuen Wan.  Inside the construction site were 3 container offices.

3.  Around 6 pm, a driver of Richwell, after parking a medium goods vehicle fitted with a crane and bearing registration number VX1379 (“the MGV”) in an open area of the construction site, placed the MGV’s key inside a desk drawer in one of the container offices.  These offices were secured by a foreman around 7 pm.

4.  When the driver and the foreman returned to the construction site around 8 am the following morning, they found the MGV (worth about HK$600,000) missing and the doors and windows of the container offices prized open; the MGV’s key and some electric tools (worth about HK$43,000) that had been stored in the offices were also missing.

5.  Around 9:30 am on 23 May 2019, the defendant drove the MGV to Chun Keung Motors Engineering Co. Limited (“Chun Keung”) in Sha Tau Kok and told the manager there that he wished to sell the crane of the MGV.

6.  Having previously been told about the theft of the MGV, the manager called the police, who arrived at Chun Keung in about 10 minutes.  Station Sergeant 45436 (“the SSgt”), in the execution of his duty, declared arrest on the defendant and placed his hand on the latter’s shoulder.  The defendant pushed the SSgt’s hand away and tried to escape, in the course of which he lost his balance and fell to the ground, pulling the SSgt along with him and causing abrasions to the SSgt’s hands, right elbow and knees.  The defendant tried to run away but was promptly subdued.

7.  A search of the MGV revealed that its key was still in the ignition, and that a set of work platform frames, 2 electric drills with boxes, 3 electric screwdrivers, a handsaw with a cover, and 3 bundles of electric wires with a clamp and a wooden spool were in the rear part of the MGV.  A staff member of Richwell confirmed that the MGV’s key and the tools were property stolen from them.

8.  Inside the defendant’s right front trouser pocket, the police found a plastic bag containing 0.06 gramme of a crystalline solid containing methamphetamine hydrochloride (“ICE”).  Under caution, the defendant admitted that the ICE was for his own consumption.

9.  Between the MGV’s driver seat and passenger seat, the police found a device fit for the inhalation of ICE.  Inside this device was a small amount of liquid containing a very small amount of methamphetamine.

10.  The defendant’s driving of the MGV was not covered by third party insurance, and he had no valid driving licence to drive it.

11.  In a video-recorded interview conducted under caution, the defendant told the police that the MGV’s key had been given to him by someone outside a construction site in Tsuen Wan where the MGV was parked.  He then drove it to Fanling area.  He was not qualified to drive it, but he still did because he did not have any other vehicle.

12.  Defence counsel confirms that in driving the MGV away from the construction site, the defendant knew that he was stealing it.  He also knew that the tools in the back of the MGV were stolen goods.

Previous convictions

13.  The defendant has 2 previous convictions, one for driving with alcohol level above the prescribed limit, and one for burglary.

Mitigation

14.  The defendant is 40 years old.  He was born in India in 1980, and he came to Hong Kong in 1997.  He is married with 2 daughters aged 5 and 14 respectively.  Prior to his arrest, he was living with his wife and children in Hung Hom.

15.  In mitigation, his counsel told the court that the defendant had been a truck driver for a number of years earning around $17,000 a month.  However, he got laid off about 2 months prior to his commission of these offences, and he has since fallen on hard times.  Under financial strains and the influence of bad companions, the defendant got into trouble with the law this time.

16.  Concerning the offence of Theft, his counsel says the defendant was in no way the mastermind.  He was acting on the instructions of those who stayed in the background.  Fortunately, the MGV was recovered without any damage to it, and the owner has not suffered any loss.  Counsel concedes that theft of motor vehicles is prevalent and quite correctly attracts deterrent sentences.  However, there is no evidence that theft of the type of vehicle in question, which she calls a “crane truck”, is a prevalent crime, nor is there evidence that the MGV was to be smuggled out of Hong Kong.

17.  As for the offence of Handling stolen goods, counsel says it was not the defendant’s intention to dispose of the stolen items.  His culpability should be limited to driving a vehicle carrying the stolen goods, which were all recovered.

18.  The defendant’s initial resistance to the police was a spur-of-the-moment response, due in part to the police officer not being in uniform.  He admits his mistake when he continued struggling upon learning that he was in fact a police officer.

19.  Counsel says the defendant used ICE to relieve his back pain.  The amount found on him was quite small, only 0.06 gramme.  Now that he has been in custody for over a year and been receiving treatment for his back pain, he no longer needs the drug.

20.  Regarding the driving offences, counsel points out that the defendant only drove the MGV from the construction site to Fanling on 22 May and from Fanling to Chun Keung on the following day.  The risks to other road users were therefore minimal.

21.  Counsel says the defendant has given an NPS statement to the police about the others who were involved in this case, and he is prepared to identify them and testify against them if they are caught.

22.  3 mitigation letters have been submitted to the court - one written by the defendant’s wife, one by his older daughter, and one by a social worker with The Society of Rehabilitation and Crime Prevention (“SORACP”).  Both his wife and his daughter express their love for the defendant, set out the hardship they suffer with the defendant not being around them, and both yearn for an early re-union with him.  The social worker from SORACP speaks of the defendant’s wife’s disappointment at her husband's unlawful behaviour and her willingness to give her husband a final chance to reform himself and to help him steer clear of his bad peers; the social worker also mentions the defendant’s sense of remorse and self-blame for his misdeeds.

Sentence

23.  Theft of a vehicle is a serious offence.  Pang JA, delivering the Court of Appeal’s judgment in HKSAR v Yu Chi Chiu [2017] 1 HKLRD 400, at 406, had this to say:-

“10. However, for the sake of completeness, I will also point out that the theft of a vehicle is a serious crime for the following reasons:

(1) Regardless of the make/model of the vehicle, it is a valuable property worth a lot of money.

(2) A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal data and/or tend to expose confidential information (e.g. phones, name cards, different types of documents/letters, and all types of memory cards or access cards).

(3) A vehicle is often parked in a public place, making it prone to be a target of theft.

(4) To the owner of a private vehicle, the loss of his vehicle will cause him great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.”

24.  Reasons (1), (3) and (4) set out in the above judgment are especially applicable to our case here.

25.  Although there is no evidence that theft of “crane trucks” is prevalent, or that the vehicle was to be smuggled out of Hong Kong, the gravity of the defendant’s theft of the MGV is not thereby lessened.

26.  One must not overlook what Pang JA went on to say after spelling out the reasons why theft of vehicle is a serious offence.  Paragraph 11 of his judgment in Yu Chi Chiu (supra) says:-

“Regardless of the purpose of thieves and whether the number of vehicle thefts is rising sharply, the severity of vehicle thefts is reflected in the four points mentioned above. If other factors are involved (e.g. the vehicle theft is carefully planned, the stolen vehicle is resold or used to commit other crimes), they will be considered as aggravating factors.”

27.  Admittedly, the defendant had the MGV for only 2 days, which probably did not cause its owner as much inconvenience as it would have had the vehicle been missing for a longer period.

28.  However, there is one factor which renders the offence even more serious, and that is the attempt to sell the MGV's crane.  But for the vigilance of the manager of Chun Keung, the sale indicated by the defendant would likely have gone ahead, after which the MGV would be missing a very important component, as well as its intended function as a crane truck.

29.  Given all the circumstances, I consider that the Theft charge merits a starting point of 3 years imprisonment.

30.  I now turn to the Handling charge.  I bear in mind that burglary of non-domestic premises would normally attract a starting point of 2½ years imprisonment, and that it has been pointed out in R v Chan Wing Kwan and another CACC 121/1985 that “(a)n examination of a number of other cases of handling stolen goods shows that the normal bracket of sentence runs between 2 and 4 years.  Similarly, other decisions suggest that the handler of stolen goods can normally expect a lesser sentence than those who are convicted of the substantive offence of burglary of the goods which were subsequently handled.”  (Paragraph 46 of the judgment)

31.  I would adopt a starting point of 2 years imprisonment for the Handling charge.

32.  The Resisting offence is a serious offence in that it makes the police officer's job even more difficult and perilous.  In this case, the SSgt did sustain injuries, albeit not very serious ones, while trying to apprehend the defendant who put up a struggle and tried to flee.  Nevertheless, this is not the most serious or vicious case of its kind, and there is no evidence that the defendant did it out of malice.  I will adopt a starting point 1½ months imprisonment.

33.  Given the small quantity of ICE involved in the Possession of a Drug charge, there could hardly have been any latent risk of re-distribution.  I will adopt a starting point of 9 months imprisonment.

34.  For the Possession of an Apparatus charge, the sentence will be 3 months imprisonment after plea.

35.  For the driving-related offences, I adopt a starting point of 3 months imprisonment for the offence of Driving without Third Party Insurance, and 1½ months imprisonment for Driving without a valid Driving Licence.  Pursuant to s 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272, I order that the defendant be disqualified from holding or obtaining a driving licence for 2 years from the date of conviction.

36.  The defendant’s guilty plea is the only mitigation of substance, for which he will be given a 1/3 discount in sentence.  His personal and familial circumstances are not such as to warrant any reduction in sentence.

37.  His offer of assistance to the police has not resulted in any arrest or prosecution.  It would not be appropriate to give him any additional credit.  As Power ACJ in R v Chung Kin-wah CACC 700/1996 said, “An offender who does no more than make a statement which, when setting out the circumstances of the offence, implicates others and who then pleads guilty at the first opportunity is entitled to a one-third discount.”

38.  After discount, the defendant's sentence for each charge will be as follows:-

1^st Charge - 2 years imprisonment.

2^nd Charge - 16 months imprisonment.

3^rd Charge - 1 month imprisonment.

4^th Charge - 6 months imprisonment.

5^th Charge - 3 months imprisonment.

6^th Charge - 2 months imprisonment. Disqualified from holding or obtaining a driving licence for 2 years.

7^th Charge - 1 month imprisonment.

39.  I consider that the 1^st, 2^nd,6^th and 7^th charges arose from the same transaction, and hence I order that sentences for these 4 charges are to run concurrently, making a total of 2 years imprisonment for these charges.

40.  Sentences for the 4^th and 5^th charges should also run concurrently, and I so order, making a sentence of 6 months for these 2 charges.

41.  The 3^rd charge is a matter separate and distinct from the other charges.  The sentence for it should run consecutively to sentences for the other charges.

42.  Taking a step back to look at the defendant’s culpability, I consider a total sentence of 2 years and 4 months imprisonment to be appropriate.

43.  To achieve that, I order that the one-month sentence for the 3^rd charge is to run consecutively to the 2-year concurrent sentence for the 1^st, 2^nd,  6^th and 7^th charges, and 3 months of the concurrent sentence for the 4^th and 5^th charges are to run consecutively to the sentence for the other 5 charges.  The defendant is disqualified from holding or obtaining a driving licence for 2 years from today in respect of the 6^th charge.