HKSAR v. CHOW KUEN FUNG

DCCC 504/2021

[2022] HKDC 38

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 504 OF 2021

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REASONS FOR SENTENCE

1.  The defendant pleaded guilty to 2 charges of "Theft" (Charges 1 and 3); 1 charge of "Criminal damage" (Charge 2); 2 charges of "Forgery of documents[1]" (Charges 4 and 5); 1 charge of "Driving while disqualified" (Charge 6); and 1 charge of "Using a motor vehicle without third party insurance" (Charge 7).

Summary of Facts

Charges 1 and 2

2.  About 11:00 p.m. on 17 January 2020, Mr. Pang (PW1)  parked his private car SJ6756 ("V1")  near Lamppost No.FA8740 at Wang Lok Street, Yuen Long ("Loc. 1").  About 11:30 p.m. on 21 January 2020, PW1 returned to Loc. 1 and found the glass of the rear offside window of V1 having been removed.  The engine starter was also damaged.  The repair costs were about $2,000 and $1,000 respectively.  This is Charge 2.

3.  PW1 also found numerous car accessory items including phone stands, carpets, audio system, car cleaning kit, neck pillows, car camera and cash (valued at $6,800 in total)  missing from V1.  This is Charge 1.

4.  Forensic examination confirmed that the defendant's fingerprint was found on the offside body of V1.

Charges 3 to 7

5.  About 10:15 p.m. on 12 April 2020, Mr. Yeung (PW2)  parked his private car VK2733 with chassis number EK9-1004991 ("V2")  near Lamppost No.AB1616 at Hoi Ting Road, Mongkok.  About 6:15 a.m. on 13 April 2020, PW2 returned to the same spot and found V2 missing.  He alerted the Police.  This is Charge 3.

6.  About 3:10 a.m. on 14 April 2020, outside NZ Restaurant at Kam Tin Road, Pat Heung, Yuen Long ("Loc. 2"), police officers saw a private car with plate number NZ8812 reversing in high speed. They intercepted the car but the driver tried to escape.  The officers pursued, subdued and arrested the driver (later confirmed to be the defendant).

7.  The Police later discovered that the car driven by the defendant was in fact V2.  Hence, the 2 number plates NZ8812 displayed on V2 were false.  This is Charge 4.  The paper vehicle licence (in relation to VZ948)  displayed on the windscreen was also false.  This is Charge 5.

8.  Furthermore, it was discovered that the defendant was disqualified from driving from 23 February 2018 to 22 February 2021.  This is Charge 6.  Since the defendant was disqualified from driving and not a person authorized to drive V2, there was no valid third party insurance coverage when he drove V2 on 14 April 2020.  This is Charge 7.

Admissions

9.  In his video recorded interviews, the defendant admitted that on 18 January 2020, he smashed the windows of 2 cars parked at Loc. 1 including V1.  He then took away various items from both cars.  Around 11 to 12 April 2020, a friend brought him to an unknown place in Tai Kok Tsui where V2 was parked.  The defendant smashed the nearside passenger window of V2 and opened the car door.  He then used a screwdriver to open the bottom of the steering wheel and started the engine.  He drove V2 away; whereas his friend changed the number plates and paper vehicle licence.  On 14 April 2020, the defendant drove V2 displaying the false number plates and false paper vehicle licence to Loc. 2.  He wanted to flee upon seeing the police officers.

Mitigation

10.  The defendant is 37 and has 9 conviction records, which involved 30 offences.  In particular, he has 5 convictions of "Driving whilst disqualified", 5 convictions of "Using a motor vehicle without third party insurance" and 3 convictions of "Taking conveyance without authority".  I need not repeat his criminal history in details, suffice it to say that it carries the profile of a car thief and an appalling driver.

11.  Defence counsel Mr. Hui informed me that the defendant is single, but has a daughter (aged 2).  His daughter is looked after by her maternal grandmother.  In mitigation, Mr. Hui submitted that when the defendant saw V2, he wanted to own it out of greed.  He was in the process of looking for a place to hide V2 when he encountered the Police.  Regarding Charges 6 and 7, Mr. Hui submitted that no property damage or personal injuries were caused as a result of the defendant's driving.

Sentence

Charges 1 and 2

12.  The underlying theme of these 2 offences is "theft from motor vehicle".  In the course of committing these crimes, a car window and the engine starter of V1 were broken, causing PW1 to incur repair expenses.  The total value of the stolen items is not a small sum either. I adopt a starting point of 12 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 8 months.

Charge 3

13.  Theft of a motor vehicle is a serious crime which justifies a starting point of 3 years' imprisonment[2].  The defendant has no previous conviction of "Theft" offences, but has 3 convictions of "Taking conveyance without authority".  I would not increase the starting point because TCWA is less serious than "Theft" in terms of the maximum penalty.  I adopt a starting point of 3 years' imprisonment for this charge.  With the timely guilty plea, the sentence is reduced to 24 months.

Charges 4 and 5

14.  The maximum penalty for these offences is a fine of $10,000 and imprisonment for 3 years.  Plainly, the defendant's intention was to disguise the true identity of V2 and to conceal the fact that it was a stolen vehicle.  I adopt a starting point of 9 months' imprisonment for each charge.  With the timely guilty pleas, the sentence for each charge is reduced to 6 months.

Charge 6

15.  This offence constitutes a flagrant breach of a disqualification order.  This is the defendant's 6^th conviction of similar offence.  I must adopt the maximum prison term of 12 months as the starting point.  With the timely guilty plea, the sentence is reduced to 8 months.

Charge 7

16.  The defendant has 5 similar convictions.  By driving V2, he has deprived all potential victims of adequate financial protection.  I must also adopt the maximum prison term of 12 months as the starting point.  With the timely guilty plea, the sentence is reduced to 8 months.

Overall Sentence

17.  Within 3 months, the defendant damaged 1 car in order to steal from it (and he did steal from it)  and then stole another car.  To conceal the true identity of the stolen car, he committed the offences in Charges 4 and 5.  In order to avoid apprehension by the Police, he further committed Charges 6 and 7.  A global starting point of 54 months' imprisonment for all 7 charges is appropriate and just.  With the timely guilty pleas, the overall sentence is reduced to 36 months.  To achieve this, I order the sentences to run in the following manner :-

(i)  Charges 1 and 2 concurrent; but 4 months consecutive to Charge 3;

(ii)  Charges 4 and 5 concurrent; but 2 months consecutive to Charges 1 to 3;

(iii)  Charges 6 and 7 concurrent; but 6 months consecutive to Charges 1 to 5.

18.  For Charge 6, it is the defendant's 6^th conviction of similar offence, the disqualification period shall be not less than 3 years.  I make a disqualification order of 3.5 years.

19.  For Charge 7, it is the defendant's 6^th conviction of similar offence, the disqualification period shall be not less than 12 months or more than 3 years.  I make a disqualification order of 3 years, which shall run from the date of conviction[3].

20.  For the avoidance of doubt, the disqualification orders for Charges 6 and 7 shall run concurrently from the date of conviction.

21.  The defendant's repeated flagrant disobedience of disqualification orders and driving without proper insurance render him a serious threat and danger to other road users.  However, none of the present charges are related to his driving skills or standard of driving.  As much as I want to prevent him from getting behind the wheel, it would be inappropriate to order the defendant to be re-tested.  I make no order in this regard. Similarly, none of the charges in the present case fall within the scope of section 72A of the Road Traffic Ordinance (Cap.374).  Hence, a Driving Improvement Course Order is unnecessary.