HKSAR v. LUM SIU CHUNG AND OTHERS

DCCC1220/2008

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1220 OF 2008

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Reasons for Sentence

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1.  D1 and D4, you each admitted an offence of attempting to handle stolen goods, contrary Section 24 of the Theft Ordinance, Cap.210 and Section 159G of the Crimes Ordinance, Cap.200; one offence of handling stolen goods, contrary to Section 24 of the Theft Ordinance, Cap.210.

2.  Additionally, D4, you pleaded guilty to two offences of police assault, each contrary to Section 36(b) of the Offences Against the Person Ordinance, Cap,212; and D1, you pleaded guilty to using a vehicle with no insurance. That is contrary to Sections 4(1) and (2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap.272.

3.  In respect of you, D4, an offence of resisting a police officer in the due execution of his duty was ordered to be left on file.

4.  You both admitted the brief facts and I convicted you on your respective offences.

5.  I have dealt with the facts in respect of Charges 1 and 2 at length in my verdict in the trial of D2 and D3. Suffice to say that Charge 1 involved a Lexus valued at $35,000 which had been stolen on 22 August 2008, and Charge 2, a Toyota Alphard valued at $200,000, stolen on 23rd or 24 September 2008.

6.  You were each arrested in a police operation which spanned the 24th to 27 September 2008 in Tai Po Tsai Village, Sai Kung.

7.  In the early hours of 27 September, four males, including you two defendants, were seen driving in the first vehicle. That vehicle stopped close to the second vehicle. One person then sat in the driving seat of the second vehicle. All then returned to the Lexus and you drove to the entrance of the village where you were blocked by a police car and reversed at speed. In the course of that reversing, the Lexus struck two private vehicles and was damaged itself and caused damage to the vehicles.

8.  D1, you were arrested when the car came to a stop. You were the driver. D4, in the course of your arrest, you assaulted PC54592, PW9, and PC54447, who was PW10. Both officers were taken to hospital.

9.  PW9 had abrasions to his face and left forearm and a dislocated shoulder. His injuries were such as to require surgery and physiotherapy. He was on sick leave from 6 October 2008 to 2 March 2009.

10.  PW10’s injuries were not serious. He had a sprained ankle and was on sick leave for three days.

11.  In the course of these matters, the Lexus sustained damage of some $10,000 and the Alphard $8,000. The private car which you, D1, struck when reversing the Lexus cost $16,500 to repair.

12.  Additionally, D1, when you were driving, you were driving without the benefit of insurance.

13.  D1, you are a man of hitherto clear record, though Mr Yip has told me you do have some speeding convictions.

14.  D4, you admitted to five previous convictions, three matters which were very minor, but you had two similar convictions, one involving handling and one involving violence. D4, you are presently serving a sentence of imprisonment and will be released in October.

15.  As you will recall, on the day that you pleaded guilty and admitted the facts, I adjourned the case and remanded each of you in custody for a probation officer’s background report. Those reports are now before the court and have been considered by me.

16.  Both of you agree with the contents of the reports except you, D1, who explains that you did have knowledge of the status of the stolen vehicles and there was a miscommunication between you and the probation officer.

17.  Mr Yip entered mitigation in respect of you, D1. You are 31 years of age and single. Your clear record was emphasised as was your plea of guilty. You claimed that you have been led astray by others. Letters of support were produced in your case. I have read those letters and taken them into account.

18.  Mr Ip entered mitigation on behalf of you, D4. You are 36 years of age, married with two children. I am told that you are extremely remorseful for what you have done, and that is echoed by the probation officer’s report. Mr Ip referred me to the favourable probation officer’s report. Your plea of guilty was emphasised.

19.  You are presently serving, as I have said, a period of imprisonment for a similar offence to the first two. I am told that at the time when you were sentenced for that offence you had hoped that these matters could be brought up at the same time so you could be sentenced for everything at once. Mr Ip urged me to consider a starting point in the region of 2½ to 3 years.

20.  In sentencing each of you, I took into account the facts and nature of the charges, the mitigation and, of course, the contents of the probation officer’s reports.

21.  The handling of stolen vehicles is considered a serious matter by the courts and one for which only a substantial period of imprisonment is appropriate. In this case, damage was occasioned to the two vehicles and another private car when you were trying to escape, D1.

22.  Neither of you has offered compensation and nor does it occur that you are in a position to make such payments, especially as each of you will be going to prison, so it could well be that you will be sued civilly for the damage you have done.

23.  I note D1, that you have a clear record. D4, you have two similar convictions, as I said, one for violence and one for handling stolen goods. Additionally, D4, in the course of your arrest you injured two officers, one of whom was off work for some 5 months.

24.  I have noted the various sentencing authorities produced before me. It seems in cases such as this a starting point of between 2 and 4 years is the appropriate starting point.

25.  D1, whilst you are of clear record, I do note that you were the driver and therefore took a more active role in this offence, that is the driver of the first vehicle, the Lexus.

26.  D1, on the first offence, I take a starting point of 3 years’ imprisonment, reduced to 2 years for your plea of guilty. On the second offence, I take a similar period, that is a starting point of 3 years, reduced to 2 years, for your plea of guilty.

27.  On the 6th Charge, that is the no insurance, I take a starting point of 6 weeks’ imprisonment, reduced to 4 weeks for your plea of guilty, and you will additionally be disqualified from holding or obtaining a driving licence in respect of all classes of vehicle for a period of 12 months. That will be explained to you.

28.  To give effect to the principle of totality, the sentences will be served in the following way: on Charge 1, you will serve 2 years; on Charge 2, 3 months will be consecutive and 21 months will be concurrent; and the 4 weeks on Charge 6 will be wholly concurrent. Therefore, you will go to prison for a period of 27 months.

29.  D4, I propose to deal with you in a very similar way. On the 1st charge, I take a starting point of 3 years’ imprisonment, reduced to 2 years; and similarly, in respect of Charge 2, I take a starting point of 3 years, reduced to 2 years; on Charge 3, I note the serious injuries suffered by the officer, I take a starting point of 6 months, reduced to 4 months; and on Charge 4, I take a starting point of 3 months, reduced to 2 months.

30.  Again, to give effect to the principle of totality, the sentences will be served in this way: you will serve 2 years on Charge 1; on Charge 2, 3 months will be consecutive and 21 months will be concurrent; on Charge 3, the 4 months will be wholly consecutive; and on Charge 4, the 2 months will be concurrent. That is a total of 31 months’ imprisonment. That will be served consecutively with your existing sentence.