HKSAR v. SIU CHOI SHING

DCCC 1012/2020

[2021] HKDC 380

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1012 OF 2020

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to 4 charges:-

(1)  Charge 1, theft, contrary to section 9 of the Theft Ordinance, Cap 210;

(2)  Charge 2, forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374;

(3)  Charge 3, forgery of a document, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap 374; and

(4)  Charge 4, possession of a dangerous drug, contrary to section 8(1)(a) and (2) of the Dangerous Drugs Ordinance, Cap 134.

2.  Full details of the offences are set out in the facts admitted by the defendant.  In summary, this is a theft of vehicle case.  The defendant pretended to be a potential buyer and deceive the owner Mr Yau to lend him the vehicle in question (hereinafter called “the vehicle”).

3.  The defendant later returned the vehicle to Mr Yau and parked it at the carpark.  Upon checking the vehicle, Mr Yau found that the mobile phone and the charger originally left in the vehicle were gone, and that the key of the vehicle was also gone.

4.  The vehicle later also found missing after the defendant returned it to Mr Yau.  The defendant admitted to Mr Yau that he had driven away the vehicle.

5.  The defendant was later intercepted by the police when he was driving the vehicle.  At that time, he had changed the number plates and the vehicle license to avoid detection, and he admitted the said offences under caution.

6.  During the interception by the police, 0.24 grammes of Ice was also found and the defendant also admitted under caution that the Ice was for his own consumption and that he had stolen the vehicle from Mr Yau.

CRIMINAL RECORDS AND BACKGROUND OF THE DEFENDANT

7.  The defendant was born in Hong Kong on 25 April 1974 and is currently 46 years old.  He was married but has separated from his wife for more than 10 years.  His daughter aged 20 and is a saleslady. His father suffered from stroke.  His mother is a causal worker for dish washing.  He was unemployed at the time of arrest and had previously worked as a transportation worker earning about $500 per day.  He studied up to primary 6.

8.  The defendant had no fixed abode since 2 August 2019 after release from prison.  The defendant is not of clear record.  He has 19 previous convictions and has previous similar criminal records of theft and possession of dangerous drugs.

MITIGATION

9.  In mitigation, Mr Chan emphasized the fact that the defendant had pleaded guilty to the offence at the earliest opportunity and is entitled to the full one-third discount.

10.  For Charge 1, he submitted that the defendant committed the offence because he had no money to buy food, and he used the stolen vehicle to deliver seafood to To Kwa Wan Market so that he could earn some money to buy food.

11.  Mr Chan further submitted that for Charges 2 and 3, the number plate SA9811 and vehicle license PV9086 were replaced by him, and for Charge 4, the ice was for his own consumption.

12.  The defendant claimed that he is no longer a drug addict after his arrest on 23 July 2020 for the present offences.  He was recalled by DATC on 1 August 2020 because he was subject to supervision order.  After release from DATC on 4 November 2020, he was detained at Lai Chi Kok Reception Centre.  The period from 1 August 2020 to 4 November 2020 will not be counted as a period of imprisonment served by the defendant for this case.

13.  Mr Chan also submitted that as the defendant is no longer a drug addict, his family has forgiven him and accepted him as family member again.  The defendant is determined to be a chef after his release from prison.  Moreover, his family members in February 2021 told him that for the defendant is the eldest son of father and the eldest grandson of his grandfather, he will become a shareholder holding 40% shares of two restaurants (Sun To Yuen Restaurant and Loong Yue Restaurant) at Lau Fau Shan after the grant of probate for the will of his grandfather who passed away by the end of 2019.

14.  Mr Chan also refer me to two cases.  He submitted that with reference to paragraphs 30-33, 48-50, 63, 85-88 of HKSAR v Muhammad Waqas CACC 272/2017 (hereinafter called “the Muhammad Case”), the starting point for Charge 1 in the present case should be 3 years, as the vehicle and things inside the vehicle were recovered.  After one third deduction, the sentence for Charge 1 should be 2 years.

15.  Regarding Charges 2 and 3, Mr Chan suggested that the usual starting point for each charge should be 12 months.  They are of same nature, and should be run concurrently.  After one third deduction, the sentence for each of Charge 2 and 3 should be 8 months.

16.  Further, Mr Chan pointed out that with reference to paragraph 30 of the Muhammad Case, on appeal, the court ordered only 2 months of Charge 2 be served consecutively to sentence for Charge 1 (para 87 of the Muhammad Case).

17.  Mr Chan further submitted that in paragraphs 1-4 of HKSAR v Tsang Kwun Wing (曾冠榮) CACC89/2004, all Charges 2-5 (similar to Charges 2 & 3 in the present case) run concurrently to Charge 1 (similar to Charge 1 of the present case).  The total sentence for Charges 1-5 in Tsang Kwun Wing Case was 2 years’ imprisonment after one third deduction for guilty plea.

18.  Mr Chan suggested that Charges 2 and 3 in the present case may be treated as part and parcel of Charge 1 (Theft of a Vehicle).

19.  For Charge 4, possession of a dangerous drug, Mr Chan stated that the actual narcotic content of Charge 4 in the present case is 0.24 grammes of a crystalline solid containing methamphetamine hydrochloride (ice).  As the quantity of ice is less than one gramme, the starting point for Charge 4 may be at court’s discretion (paras 58-64 of the Muhammad Case).  Mr Chan suggested that it may be about 3 to 6 months’ imprisonment.

20.  Mr Chan further submitted that the Court of Appeal in (paras 69-84 of) the Muhammad Case replaced the sentence of 8 months by 1 month imprisonment for possession of trace of cocaine [Charge 10 of the Muhammad Case].

21.  Mr Chan therefore submitted that after considering paragraphs 1-2, 30, 85-87 of the Muhammad Case and paragraphs 1-4 of Tsang Kwun Wing Case, the total sentence for the present case may be in the range of about from 2 years 2 months (if Charges 2 & 3 run concurrently with Charge 1 and the starting point for Charge 4 is 3 months’ imprisonment) to 2 years 6 months’ imprisonment (if 2 months of Charges 2 & 3 run consecutively to Charge 1 and the starting point for Charge 4 is 6 months’ imprisonment).

SENTENCING CONSIDERATIONS

Theft of vehicle Charge 1

22.  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.”

23.  Reasons (1), (2) and (4) set out in the above judgment are especially applicable to our case here.

24.  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.”

25.  Deterrent sentences are nevertheless required.  As was said in HKSAR v Cheng Chun Ming[1]:-

“Cases involving the theft or handling of motor cars 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.”

26.  In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic. In HKSAR v Li Cheung Yin & others[2] where the court also held a 3-year starting point was appropriate for theft of a vehicle.

27.  The same starting point has been held appropriate for the theft of goods vehicles[3]. Higher starting points have been held appropriate where the theft was organized, planned and committed in concert with others or involved those in the motor trade[4].

28.  In the present case, whilst not sophisticated, the defendant clearly planned the theft deceiving Mr Yau to lend him the vehicle first and took away the ignition key at some point later.

29.  The changing of the number plates and the vehicle license to avoid detection in my view also shows a degree of planning and is an aggravating feature of the theft.

30.  Taking into account that the car was not a luxury vehicle, that the defendant acted alone, and the manner of the theft together with the aggravating features of changing the number plates and vehicle license, I am satisfied the proper starting point after trial is 3 years’ imprisonment.

31.  Giving the defendant full credit for his plea of guilty to Charge 1, the sentence will be 24 months’ imprisonment after plea.

Forgery of documents Charges 2 & 3

32.  The defendant used another number plate SA 9811 and used the vehicle license PV9086 to cover the vehicle.  The whole purpose was to prevent the police or Mr Yau to track down the whereabouts of the vehicle.

33.  I shall adopt a starting point of 12 months’ imprisonment for the offence of Charges 2 and 3.  Giving the defendant full credit for his plea of guilty to Charges 2 and 3, the sentence of each charge will be 8 months’ imprisonment after plea.

Possession of ice Charge 4

34.  For Charge 4, this is a charge of simple possession of a dangerous drug, the provisions of section 54A of the Dangerous Drugs Ordinance requiring a court to consider a report on the suitability of the defendant for cure and rehabilitation and on the availability of places at addiction treatment center.

35.  I found that this section will not apply, as the defendant will be sentenced to more than 9 months’ imprisonment for theft in this case.  I therefore will not call for DATC report before sentence.

36.  In HKSAR v Mok Cho Tik, the Court of Appeal held that the starting point for possession of drugs which a bona fide user normally has in his possession should be in the range of 12 to 18 months[5].

37.  For Charge 4, simple possession of 0.24 grammes of ICE, in view of the quantity of the drug offence, I take 6 months as the starting point, and reduce to 4 months’ imprisonment.

TOTALITY

38.  I consider that the 1^st, 2^nd, and 3^rd Charges arose from the same transaction, and hence I order that sentences for these 3 charges are to run concurrently, making a total of 24 months’ imprisonment for these charges.

39.  Sentence for the 4^th Charge is a matter separate and distinct from the other charges.  Taking into account of the totality principle, I shall order 2 months of Charge 4 to be run consecutively to Charge 1.

40.  There being no further valid mitigating factors justifying further reduction in sentence, the total sentence to be served by the defendant is 26 months’ imprisonment.