HKSAR v. NGAI HUNG

DCCC 65/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 65 OF 2015

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REASONS FOR SENTENCE

1.The defendant faces 3 charges of "Theft" (Charges 1, 3 and 4); 1 charge of "Using a motor vehicle without third party insurance" (Charge 2); 1 charge of "Attempted Theft" (Charge 5); 1 charge of "Using documents with intent to deceive" (Charge 6); 1 charge of "Possession of documents with intent to deceive" (Charge 7); 1 charge of "Resisting police officers in the due execution of their duty" (Charge 8); 1 charge of "Possession of a dangerous drug" (Charge 9); and 1 charge of "Possession of an apparatus fit and intended for the inhalation of a dangerous drug" (Charge 10).

2.  He pleaded guilty to Charges 1 to 6 and 9.  The prosecution applied to leave Charges 7, 8 and 10 in the court file; not to be proceeded against the defendant without leave of court.  I granted the application.

Summary of Facts

Charges 1 and 2

3.  About 3:30 pm on 4 October 2014, Madam KU (PW1) parked a private car AY8163 ("the Car") outside Nos.32-40 Wang Lung Street, Tsuen Wan.  The registered owner of the Car is PW1's brother (PW2).  In order to allow her colleagues to use the Car, PW1 left the car key in the ignition switch and the car doors unlocked.  About 6:30 pm, PW1 returned to the location where she parked the Car, but discovered the Car missing.

Charge 6

4.  On 23 October 2014, police officers laid ambush outside Hong Kwai House, Cheung Hong Estate, Tsing Yi.  They identified a private car bearing a pair of number plates marked RH6968 (which were forged). A forged vehicle licence in relation to RH6968 was also found on its windshield.  That private car was subsequently confirmed to be the Car.

Arrest of the Defendant

5.  About 1:50 pm on the same day, the defendant approached the Car.  DSPC 49309 (PW19) revealed his police identity to the defendant, who suddenly ran away and dropped his shoulder bag ("the Shoulder Bag") on the ground.  He also threw away the key and remote control of the Car.  Police officers gave chase and eventually subdued the defendant.

6.  Under caution, the defendant claimed that he saw the Car with its key inserted in the ignition switch on Tuesday (i.e. 2 days ago); he drove it away for fun.  This is an admission related to Charges 1 and 2.

Charge 3

7.  The Shoulder Bag was searched.  It contained the identity documents and bank cards particularized in Charge 3, which belong to Mr. CHAN (PW3) and Madam CHAN (PW4), who are siblings.  PW3 confirmed that he lost those items together with his Hong Kong Identity Card and other items in the early morning on 19 October 2014.

8.  Cash in the sum of $40,500 was also found in the Shoulder Bag.  This sum of cash is related to Charge 4, which will be described below.

Charge 9

9.  The Car was also searched.  A cigarette box was found on the side slot of the driver's door.  It contained a plastic bag which contained 0.20 gramme of a crystalline solid containing methamphetamine hydrochloride.  Under caution, the defendant admitted possession of the drug for self-consumption.

10.  Regarding Charge 6, the defendant claimed that he knew nothing about the forged number plates.  As to Charge 9, he admitted that the drug found in the Car is "ICE".

Charge 4

11.  Subsequent investigation revealed that about 4:20 pm on 22 October 2014, the defendant went to a branch of Bank of China located at Kwai Cheong Road, Kwai Chung.  He pretended to be PW3; he presented PW3's Hong Kong Identity Card and requested to close all the accounts held under PW3's name.  The defendant managed to withdraw cash in the sum of $175,234.90 from PW3's savings account.

12.  CCTV footage of the bank captured the defendant committing the offence in Charge 4.  The 2 staff members of the bank who served the defendant identified him in an identification parade.

Charge 5

13.  Police investigation also revealed that about 11:00 am on 23 October 2014, the defendant went to a branch of HSBC located at Lai Chi Kok Road, Sham Shui Po.  He pretended to be PW3; he presented PW3's Hong Kong Identity Card and requested to withdraw $200,000 from PW3's Advance Account.  The defendant was required to sign a withdrawal slip.  Whilst the withdrawal was being processed, the defendant fled from the bank, leaving behind PW3's Hong Kong Identity Card.

14.  CCTV footage of the bank captured the defendant committing the offence in Charge 5.  The 2 staff members of the bank who served the defendant identified him in an identification parade.

Video-recorded Interviews

15.  In his video-recorded interviews, the defendant stated, inter alia, that he did not know PW3; he found all the documents of PW3 in a red bag placed on the left front passenger seat of the Car.  The "ICE" found in the cigarette box was given to him by someone named "Ah Kwan", who owed the defendant $1,000.  The "ICE" was given to the defendant to set off the debt.  Regarding Charge 5, the defendant admitted having presented PW3's identity card and signed a withdrawal slip in PW3's name.  He felt scared and left the bank without taking PW3's identity card.

Mitigation

16.  The defendant is 43 and single.  He has 15 criminal convictions, which include 7 theft-related offences and 3 "simple possession" offences.  He has been licensed to drive since 1992 and only has a number of fixed penalty tickets.  For the purpose of sentencing, I will treat him as having a clear traffic record.

17.  Defence counsel Ms. CHENG informed me that the defendant has a daughter (aged 14) with his late girlfriend, who passed away in 2008 as a result of a traffic accident.  Since then, his daughter has been living with her maternal grandparents.  The defendant contributes $3,000 each month to support his daughter.

18.  In mitigation, Ms. CHENG submitted that at the time of the offences, the defendant was unemployed for a month.  He had no money to pay his rent or to pay his monthly contribution towards the maintenance of his daughter.  The cash ($40,500) found in his shoulder bag is the remainder of the money he had stolen in Charge 4.  He is willing to return this sum to the owner.

19.  In relation to Charge 9, I have called for a Drug Addiction Treatment Centre Report.  The report reveals that the defendant is not a drug dependant.

Sentence

Charges 1, 2 and 6

20.  Finding the key having been left in the ignition switch and the car doors unlocked is neither an excuse nor a mitigating factor for stealing a motor vehicle.  I do not for one moment accept that the defendant drove the Car away for fun.  He must have been up to no good in respect of the reason(s) or purpose(s) of stealing the Car.

21.  I am aware that the defendant has claimed under caution that he knew nothing about the forged number plates.[1]  I am also aware that the Car was stolen on 4 October 2014; whereas the defendant claimed that he only came across the Car and drove it away on 21 October.  Be that as it may, the defendant has pleaded guilty to Charge 6.  In other words, by virtue of his guilty plea (and confirmed by Ms. CHENG), the defendant now admits that he had used the forged number plates and forged vehicle licence with intent to deceive. The reason for doing so is obvious―to cover up the fact that the Car was a stolen vehicle.

22.  I adopt a starting point of 2 years' imprisonment for Charge 1; 6 months for Charge 2; and 9 months for Charge 3.  With the guilty pleas, the sentences are reduced to 16 months, 4 months and 6 months respectively.

Charges 3, 4 and 5

23.  Regarding Charge 3, the defendant has claimed under caution that he found all the documents of PW3 in a red bag placed on the left front passenger seat of the Car.  I have asked Mr. HUI for the prosecution whether PWs 3 and 4 are friends with PWs 1 and 2.  If affirmative, that would explain why the properties of PWs 3 and 4 would end up in PW2's car.  Mr. HUI informed me that PWs 3 and 4 do not know PWs 1 and 2.

24.  Again, according to the Summary of Facts, the Car was stole on 4 October 2014; PW3 lost his cards early in the morning on 19 October; and the defendant claimed that he stole the Car on 21 October.  How the properties of PWs 3 and 4 ended up in PW2's car seems to be a mystery.  In the absence of any evidence to the contrary, I, however, must give the benefit of doubt to the defendant and accept his claim that he found those cards in the Car.

25.  Plainly, greediness has led the defendant to commit a "theft by finding" (Charge 3) and subsequently drawing money from PW3's bank accounts (Charges 4 and 5).  Time after time, the court has expressed in very clear terms that being in financial difficulty (however serious) is no mitigating factor for committing a crime. There is sufficient social welfare protection in modern Hong Kong for the poor to meet their basic needs.  Being a released prisoner, the defendant must have known how to seek help.

26.  I adopt a starting point of 9 months' imprisonment for Charge 3; 15 months for Charge 4; and 15 months for Charge 5.  With the guilty pleas, the sentences are reduced to 6 months, 10 months and 10 months respectively.

Charge 9

27.  For 0.2 gramme of "ICE", I adopt a starting point of 6 months' imprisonment.  With the guilty plea, the sentence is reduced to 4 months.

Overall Sentence

28.  Although Charges 1, 2 and 6 seem to constitute one transaction, I consider Charges 2 and 6 as aggravating factors of Charge 1. Similarly, Charges 3, 4 and 5 demonstrated the defendant's criminality in progression.  I consider Charges 1 to 6 warrant a global starting point of 3.5 years' imprisonment.  With the guilty pleas, the overall sentence is reduced to 28 months.  To achieve this, I order the sentences to run in the following manner :-

(i) 2 months in Charge 2 consecutive to Charge 1;

(ii) 2 months in Charge 6 consecutive to Charges 1 and 2;

(iii) 2 months in Charge 3 consecutive to Charges 1, 2 and 6;

(iv) 3 months in Charge 4 consecutive to Charges 1, 2, 6 and 3; and

(v) 3 months in Charge 5 consecutive to Charges 1, 2, 6, 3 and 4.

29.  Charge 9 is separate and distinct from all other charges.  Bearing in the totality principle, I order 2 months in Charge 9 to run consecutive to Charges 1 to 6.  Thus, arriving at a total prison term of 30 months for all 7 charges.  For Charge 2, I also make a disqualification order for a period 32 months[2] (the disqualification period will start to run from the date of sentencing).

30.  The defendant is also in breach of a suspended sentence in TWCC 2454/2013.  In that case, he was sentenced to imprisonment for 1 month suspended for 2 years for an offence of "Theft".  I order the suspended sentence be activated.  The defendant shall serve the 1 month in TWCC 2454/2013, consecutive to all his sentences in the present case.