HKSAR v. CHU KONG FAI

DCCC 847/2019

[2020] HKDC 300

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 847 OF 2019

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REASONS FOR SENTENCE

The defendant faces 1 charge of "Conspiracy to burgle" (Charge 1); 1 charge of "Possession of offensive weapons" (Charge 2); 1 charge of "Driving an unlicensed vehicle" (Charge 3); 1 charge of "Using a motor vehicle without third party insurance" (Charge 4); 1 charge of "Forgery of documents[1]" (Charge 5) and 1 charge of "Failure to produce proof of identity on demand[2]" (Charge 6). He pleaded guilty to Charges 1, 4, 5 and 6. I granted the prosecution's application to leave Charges 2 and 3 in the court file; not to be proceeded against him without leave of court.

Summary of Facts

2.  Harvest Jewellery Co. was situated at Ground Floor, Block N, Wing Wah Mansion, No.425N Queen's Road West ("the Shop").  Its owner, Mr. Mak (PW1), left the Shop around 8:00 p.m. on 19 April 2019.  He locked the roller shutter with 2 metal strips.

3.  PW1 returned to the Shop around 10:00 a.m. on 20 April 2019.  He found one of the metal strips used for locking the roller shutter broken.  He checked the Shop and found no signs of ransacking or any loss of properties.

4.  About 10:30 a.m. on the same day, a security guard (Ms. Cheuk) who worked in the vicinity of the Shop found a pair of green and yellow gloves and a blue face mask at the rear alley near Nos.7 to 9, Hill Road.  She picked up the gloves and face mask around 2:30 p.m. on the same day and handed them to the Police.

CCTV Footage

5.  CCTV footage revealed that around 2:52 a.m. on 20 April 2019, a silver private car ("the Car") stopped at a few shops away from the Shop.  About 2 minutes later, 2 males in dark coloured clothing alighted from the Car and moved towards the Shop.  They looked around the roller shutter of the Shop and returned to the Car after 3 minutes.

6.  The 2 males showed up again at 2:58 a.m. and wandered around outside the Shop.  One male took out something from his bag, knelt down and used it to temper with one of the 2 metal strips used for locking the roller shutter.  Both of them wandered around outside the Shop again for a few minutes.  The male who was carrying a bag once more tempered with the metal strips for about 2 minutes.  Both males then fled towards Whitty Street when a few uniformed police officers showed up in the vicinity.

7.  The Car was driven away around 3:04 a.m. and headed towards Hill Road.  About the same time, CCTV footage in the vicinity of Hill Road captured 2 males with similar appearance of those 2 who were wandering around outside the Shop trying to remove their clothes.

Arrest

8.  About 3:35 a.m. on 20 April 2019, at a police road block set up at Prince Edward Road East, a silver private car ("the Silver Nissan") with a licence plate MH7793 mounted on the front driven by the defendant was stopped.  Its chassis number is V35-152999.  The Silver Nissan and the Car were of the same colour, make and model.

9.  PC 12418 searched the Silver Nissan in the presence of the defendant.  A black New Balance backpack ("Backpack 1") which contained 1 crowbar, 2 screwdrivers, 1 black cap, 2 pairs of green and yellow gloves and 1 nylon bag was found on the rear passenger seat. A black Adidas backpack ("Backpack 2") which contained 1 screwdriver, 1 pair of green and yellow gloves and 1 black cap was also found on the rear passenger seat.  A set of black hydraulic cutting pliers was found inside a box on the floor of the right rear passenger seat.

10.  At the same time, PC 13957 discovered that the paper vehicle licence of the Silver Nissan shows plate number SJ3404.  He further discovered that a licence plate VN7862 was mounted at the rear of the vehicle with another licence plate HM7793 inserted on top of it.

11.  Upon request by PC 12418, the defendant failed to produce his HKID card.

12.  PC 12418 arrested the defendant for the offences in Charges 4 to 6.  Under caution, he said "The car does not belong to me; I only helped my friend driving it."

Ownership of the Silver Nissan

13.  Police investigation revealed that a Mr. Poon purchased the Silver Nissan registered with plate number SJ3404 in May 2017 from a Mr. W.C. Chan who worked at a garage in To Kwa Wan.

14.  In July 2018, Mr. Poon left the Silver Nissan at Mr. W.C. Chan's garage for sale.  Mr. Poon, however, retained the plate number SJ3404 for another car owned by him.  According to the records of the Transport Department, the Silver Nissan should bear plate number VN7862 upon it being sold to Mr. W.C. Chan.  In any event, Mr. Poon did not remove the paper vehicle licence which reads SJ3404.  Therefore, it was left on the windscreen after the sale.

15.  In February 2019, Mr. W.C. Chan sold the Silver Nissan to a Mr. Wong (also known as "Ah Kuen").  Ah Kuen later sold the Silver Nissan to his friend "Tai B" (i.e. the defendant).  In early April 2019, the defendant paid Ah Kuen by cash and drove the vehicle away.

16.  Records of the Transport Department show that at the time of the offences, the Silver Nissan was still registered under Mr. Poon's name with plate number VN7862.

17.  According to the insurance company, on 5 July 2018, Mr. Poon transferred the insurance policy of the Silver Nissan to another car he owned.  In other words, the Silver Nissan was not covered by a valid third party insurance policy at the time of the offences.

18.  According to the records of the Transport Department, at the time of the offences, the plate number MH7793 (which was displayed at the front of the Silver Nissan) belonged to a black light goods vehicle owned by a Mr. K.K. Chan.  He does not know anyone involved in the dealings of the Silver Nissan.  The plate number HM7793 (which was displayed at the rear of the Silver Nissan) was not assigned to any motor vehicle.

Admissions

19.  In his 1^st video recorded interview, the defendant claimed that he was asked by an acquaintance named "Ah Keung" to drive the Silver Nissan, which belonged to Ah Keung's friend. The defendant came to know Ah Keung through someone named "Ah B".  In the early hours on 20 April 2019, Ah B asked the defendant to drive someone to Hong Kong from Mei Tung Estate for a reward of $1,500.  He picked up Ah Keung and 3 unknown males and drove them to a place near Western Police Station.  Ah Keung and one male (Male C) alighted from the vehicle and the defendant was instructed to drive the remaining 2 males (Males A and B) back to Mei Tung Estate.  After dropping off Males A and B, the defendant was supposed to leave the Silver Nissan at Kwun Tong Pier, but was stopped at a police road block at Prince Edward Road.  Backpacks 1 and 2 (plus their contents) as well as the hydraulic cutting pliers were brought on board by the unknown males.  The defendant admitted that he thought the people who boarded the Silver Nissan were going to commit burglary.

20.  In his 2^nd video recorded interview, the defendant admitted that around 11:00 p.m. on 19 April 2019, Ah B and Ah Keung asked him to drive to the Shop for a reward of $1,500.  Ah B told the defendant to drive Ah Keung and 3 other males to a location as directed by Ah Keung.  Ah Keung and the 3 other males were to burgle a place, whilst the defendant was to act as a lookout.  He was supposed to drive them back to Mei Tung Estate afterwards.  The defendant stopped the Silver Nissan a few shops away from the Shop.  Ah Keung and one unknown male went to the Shop, whilst the other 2 males remained in the vehicle.  Since there were some police officers nearby, Ah Keung asked the defendant to drive the other 2 males back to Mei Tung Estate.

21.  The defendant now admits that he committed the offences as particularized in Charges 1, 4, 5 and 6.

Mitigation

22.  The defendant is 41 and has 10 conviction records, which included 2 "Burglary" offences and 8 drug-related offences.  For traffic records, he obtained his driving licence in 1998 and has 1 conviction of "Careless driving" and 2 fixed penalty tickets.  Defence counsel Mr. So informed me that the defendant is divorced with an adult daughter.  Prior to the present case, he was a supervisor and driver of a decoration company earning about $25,000 per month.  In mitigation, Mr. So submitted that the defendant committed the present offences due to financial needs; he had to care for his aged parents.  Furthermore, no one was able to break into the Shop and nothing was stolen.

Sentence

Charge 1

23.  The normal starting point for non-domestic burglary is 2.5 years' imprisonment.

24.  The defendant is no stranger to the "Burglary" offence. His first 2 conviction records in 1994 and 1995 were "Burglary".  He then switched to drug-related offences since the millennium.

25.  Although the substantive act of "Burglary" was incomplete in the present case, there is a clear aggravating factor that the defendant acted in concert with 4 other persons.  Evidence seems to suggest that defendant's role was driver and lookout.  Tools fit for breaking in were also found.  Some degree of advance planning must have been involved.  Furthermore, a jewellery shop was the targeted premises.  If successfully burgled, the monetary loss is likely to be substantial.

26.  Based on the above factors, I adopt a starting point of 33 months' imprisonment for this charge.  With the timely guilty plea, the sentence is reduced to 22 months.

Charge 4

27.  By driving the Silver Nissan, the defendant has deprived his passengers and all other road users of adequate financial protection.  I adopt 3 months' imprisonment as the starting point.  With the timely guilty plea, the sentence is reduced to 2 months.

Charge 5

28.  The maximum penalty of this offence is a fine of $10,000 and imprisonment for 3 years.  Plainly, the defendant's intention was to disguise the true identity of the Silver Nissan, when it was being used in the course of committing a "Burglary" offence.  I adopt of a starting point of 6 months' imprisonment for this charge.  With the timely guilty plea, the sentence for is reduced to 4 months.

Charge 6

29.  The maximum penalty of this offence is a fine at Level 2 (i.e. $5,000[3]). In my view, it is unnecessary to lay this charge against the defendant.  I will impose a nominal fine of $200, to be paid forthwith.

Overall Sentence

30.  I accept Mr. So's submission that Charges 1, 4 and 5 arose from the same incident.  I consider a global starting point of 36 months' imprisonment appropriate for these 3 charges.  With the timely guilty pleas, the overall sentence is reduced to 24 months.  To achieve this, I order the sentences to run in the following manner :-

(i) Charges 1 and 4 concurrent; and

(ii) 2 months in Charge 5 consecutive to Charges 1 and 4.

Thus, arriving at a total prison term of 24 months for all 3 charges.

31.  For Charge 4, the disqualification period shall be not less than 12 months or more than 3 years[4].  Mr. So indicated that he had no submissions regarding the disqualification order.

32.  The defendant admitted that as early as March 2019, he was asked by Ah B to drive an unlicensed car to take people to commit burglary[5]. Based on the timing which the defendant paid for and took possession of the Silver Nissan[6], I have reasons to believe that he picked up the vehicle for the purpose of committing a crime.  Hence, I make a disqualification order of 15 months, which shall run from the date of conviction.