HKSAR v. CHAN CHUNG MAN

DCCC 1028/2018

[2019] HKDC 1637

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 1028 OF 2018

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

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

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

REASONS FOR SENTENCE

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

Introduction

1.  The defendant is convicted on his own plea of the following charges:-

1^st Charge: Theft (of a private car)

2^nd Charge: Possession of a dangerous drug (11.7 g of a solid containing 11.1 g of cocaine)

3^rd Charge: Driving while disqualified

4^th Charge: Using a motor vehicle without third party insurance

Facts

2.  At about 2 am on 6 March 2018, police officers intercepted a private car bearing registration number FF6727 (the “Car”).  Upon search of the Car, the police found on the carpet of the front passenger seat a white coloured glove which contained a transparent plastic bag containing suspected cocaine (the “DD”).

3.  When the police asked to inspect the defendant’s driving licence, the defendant responded by telling his name only.

4.  The defendant was arrested for the offence of possession of a dangerous drug at 2:10 am on the same day.

5.  Subsequent enquiries revealed that Mr Yip was the registered owner of the Car and Mr Yip who did not permit the defendant to use the Car.  At 2:40 am on the same day, the defendant was cautioned for the offence of taking conveyance without authority.

6.  Having confirmed the defendant’s identity, it was revealed that the defendant was disqualified from driving until 5 September 2018.  He was therefore cautioned for the offences of driving while disqualified and using a vehicle without third party insurance.

7.  Further enquiries with the owner of the Car Mr Yip revealed that he had known the defendant for more than 20 years and the defendant had the keys to Mr Yip’s convenience store.  Mr Yip confirmed that the last occasion he used the Car was on 5 March 2018.  He locked the Car at about 3 pm that day and he did not leave any contraband inside the Car.  At about 7 pm on 5 March 2018, Mr Yip left the Car keys in his convenience store. He then locked up the store and left.

8.  Mr Yip did not realize the defendant had used the Car until he was told by the police.  He did not permit the defendant to use the Car.

9.  The Car was insured at the material time.  The insurance company confirmed that the insurance policy is only valid if the driver drives the Car with the permission of the Insured, i.e. Mr Yip, and that the driver is not disqualified from driving.

10.  The DD was subsequently found to contain 11.7 grammes of a solid containing 11.1 grammes of cocaine.  The estimated street value of the DD was HK$12,203.

11.  The defendant admitted that at the material time, he:-

(i) stole the Car;

(ii) was in possession of the DD;

(iii) drove the Car while being disqualified from holding or obtaining a driving licence; and

(iv) drove the Car without third party insurance.

Previous record and background

12.  Before the commission of the present offences, the defendant had 13 previous convictions, out of which there was one conviction of theft sentenced in 1997, two convictions of possession of dangerous drugs sentenced in 1996 and 2007, one conviction of driving while disqualified sentenced in 2017 and one conviction of using a motor vehicle on a road against third party risks sentenced in 2017.

13.  On 6 November 2019, he was sentenced to 6 weeks’ imprisonment and disqualified from driving for 12 months for the offence of dangerous driving.

14.  The defendant was born in June 1979 and is now 40 years old.  He received education up to Form 1 level.  He used to work as a contractor at construction sites earning about HK$30,000 per month.  He is married with a 2-year-old son.

Mitigation

15.  Mr Lai on behalf of the defendant submitted a written Mitigation dated 2 December 2019.

16.  It was submitted by Mr Lai that the Car had been used for 20 years and Mr Yip bought it in 2014 at HK$5,000 only.  Mr Lai submitted that there was no breach of trust involved in the 1^st Charge.

17.  As for the 2^nd Charge, Mr Lai submitted that the DD was for the defendant’s own consumption for about 1 week.  As the DD was not divided into separate small packets/bags and only one kind of drug was involved (instead of multiple kinds of drugs), Mr Lai submitted that the latent risk was low.

18.  Mr Lai submitted that it was not easy for the defendant to get public transportation to commute between the defendant’s residence and his work place, hence the commission of the 3^rd and the 4^th Charges.

19.  Mr Lai submitted Chan Wai-lung v R CACC 694/1976 and R Tam, Simon HCMA 490/1996 for the court’s reference.

Sentence

20.  The theft of motor vehicle is a serious offence.  In Attorney General v Ng Kwok Hung CAAR 7/1996, the Court of Appeal considered a starting point of 3 years’ imprisonment appropriate for cases of vehicle theft.  In HKSAR v Cheng Chun Ming CACC 356/2000, the Court of Appeal said:-

“14. We are unable to say that the starting point of 3 years’ imprisonment adopted by the judge is in any way wrong or manifestly excessive. Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length …”

The starting point of 3 years’ imprisonment was also confirmed in HKSAR v Yu Chi Chiu CACC 198/2015 and HKSAR v Muhammad Waqas CACC 272/2017.

21.  I note that the defendant was cautioned for the offence of taking conveyance without authority at 2:40 am on 6 March 2018 but he was eventually charged and pleaded guilty to the charge of theft. In this connection, paragraph 12 of the judgment in Yu Chi Chiu reads:-

“12. …The Appellant had stolen the vehicle for at least 17 hours and had not returned or discarded it during the interval, which was obviously contrary to the circumstances of “taking conveyance without authority”. As a matter of fact, the Appellant pleaded guilty to “theft”, meaning that he admitted having the intent to permanently deprive others of their property. The offence of “theft” and that of “taking conveyance without authority” are no comparison.”

Further, paragraph 10 of the judgment in Yu Chi Chiu reads:-

“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)...

(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 the 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.”

22.  The fact that the defendant pleaded guilty to the 1^st Charge of theft shows that he admitted having the intent to permanently deprive Mr Yip of the Car.  Indeed, during mitigation Mr Lai did not dispute that the defendant had the intention to permanently deprive Mr Yip of the Car.  I therefore impose sentence on that basis.  In light of the relatively low value of the Car which has been used for about 20 years but on the other hand taking into account that Mr Yip was using the Car on a regular basis so much so that the reasons set out in paragraph 10(2), (3) and (4) in the judgment of Yu Chi Chiu are applicable to the present case, I adopt a starting point of 2 years’ imprisonment for the 1^st Charge.  Having taken into account that the defendant indicated his intention to plead guilty at the earliest opportunity and given 1/3 discount for that matter, the sentence is reduced to 16 months’ imprisonment.

23.  Regarding the 2^nd Charge, I have considered HKSAR v Mok Cho Tik [2001] 1 HKC 261 and HKSAR v Jarhia Kuldeep Singh CACC 96/2006 and adopt a starting point of 15 months’ imprisonment.  As (i) the quantity of cocaine involved in this case was over 10 g, (ii) the purity of the DD was high – 11.1/11.7 = 94.87% purity and (iii) the defendant would have made a profit of about HK$4,200 (the price difference between the estimated street value of the DD at HK$12,203 and the purchase price of the DD at HK$8,000 said to be paid by the defendant to purchase the DD) if he had sold the DD to others, the latent risk of the DD being redistributed and finding their way into other hands apart from the defendant is high.  I therefore enhance the sentence for the 2^nd Charge by 3 months to 18 months’ imprisonment.  In light of his indication of guilty plea as soon as the 2^nd Charge was amended to one of possession, I give 1/3 discount to the defendant and reduced the sentence to 12 months’ imprisonment.

24.  The defendant has one previous conviction of driving while disqualified and one previous conviction of using a motor vehicle without third party insurance both sentenced in March 2017.  It is not a valid mitigating factor that the defendant committed the 3^rd and the 4^th Charges because it was not easy for him to get public transportation to commute between his residence and work place – he should have obtained other means of transport instead of driving while disqualified and without third party insurance.

25.  For the 3^rd Charge, I adopt a starting point of 4½ months’ imprisonment and reduced it to 3 months’ imprisonment after giving 1/3 discount for his guilty plea.  By virtue of section 44(2)(b) of the Road Traffic Ordinance, I order the defendant be disqualified for a period of 3 years.

26.  For the 4^th Charge, I adopt a starting point of 4½ months’ imprisonment and reduced it to 3 months’ imprisonment after giving 1/3 discount for his guilty plea.  By virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, I order that the defendant be disqualified for a period of 2 years from the date of conviction.

27.  Regarding the disqualification order resulting from the 3^rd Charge, Ms Wong of the prosecution referred me to HKSAR v Tsui Wai Nin HCMA 1294/2000 and HKSAR v Ho Kwok Wai (何國威) HCMA 173/2010.  She asked the court to order the disqualification orders resulting from the 3^rd and the 4^th Charges to run concurrently, but the disqualification order resulting from the 3^rd Charge to run consecutively with the 12-month disqualification order imposed in STCC 3653/2019 on 6 November 2019.  In Tsui Wai Nin, Deputy High Court Judge McMahon (as he then was) referred to R v Lau Hon Tung HCMA 21/1990, R v Lam Siu Fung [1995] 2 HKC 261 and R v Tang Sik Hung [1995] 1 HKC 723 where it was held that where disqualification orders are imposed following convictions for offences arising out of the same driving incident then regardless of the terms of section 44(3) of Cap. 374, those periods of disqualification should be ordered to run concurrently.

28.  Having considered the totality principle, I order that:-

(i) 6 months’ imprisonment imposed in the 2^nd Charge is to run consecutively with the 16 months’ imprisonment imposed in the 1^st Charge, and all other imprisonment sentences are to run concurrently, thus making a total of 22 months’ imprisonment;

(ii) the aforesaid total of 22 months’ imprisonment is to run consecutively with the 6 weeks’ imprisonment imposed in STCC 3653/2019 on 6 November 2019; and

(iii) by virtue of section 44(3) of Cap. 374, the 3-year disqualification order imposed for the 3^rd Charge shall be in addition to the 12-month disqualification order imposed in STCC 3653/2019 on 6 November 2019. In other words, those two disqualification orders are to run consecutively.