HKSAR v. CHAN KA HANG, RAY

DCCC 790/2020

[2021] HKDC 791

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 790 OF 2020

________________________

________________________

________________________

REASONS FOR SENTENCE

________________________

1.  The defendant pleads guilty to one charge of theft, contrary to section 9 of the Theft Ordinance[1] (charge 1); one charge of driving without a valid driving licence, contrary to section 42 of the Road Traffic Ordinance (charge 2)[2] and one charge of using a motor vehicle without third party insurance, contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks)  Ordinance[3] (charge 3).

2.  Full details of the offences are set out in the summary of facts admitted by the defendant today. 

3.  In summary Mr Woo parked his motorcycle, registration mark SC 5323 (chassis number RFGLNA701DS004576), in the public outdoor motorcycle parking area in Tung Hei Road in Shau Kei Wan. 

4.  Mr Woo last saw his motorcycle in the parking area at 0030 hours on 28 May 2020.  When Mr Woo returned to the parking area at 1700 hours the same day the motorcycle was missing.  A report was made to the police.

5.  On 11 June 2020 at around 0215 hours there was traffic accident in the Lion Rock Tunnel involving a black motorcycle bearing registration mark HH 1212.  The defendant was riding the motorcycle at the time of the accident. 

6.  The motorcycle was damaged and the defendant injured in the accident.  The helmet worn by the defendant was scratched.  Photographs of the motorcycle have been submitted to court.

7.  A report was made to the police.  At 0240 hours the police arrived at which time the defendant was receiving first aid on an ambulance.  The defendant was then taken to Prince of Wales Hospital.

8.  Initial enquiries revealed that the number plates bearing the registration mark HH 1212 were false and that the black motorcycle was the stolen motorcycle SC 5323. 

9.  Mr Hui, the registered owner of motorcycle HH 1212, confirmed later that the black motorcycle was not his; a number plate was stolen from his motorcycle in May 2018, however the number plates on the black motorcycle were not the same as the number plate stolen from his motorcycle. 

10.  Enquiries also revealed that the defendant was the holder of only an expired learner driving licence for light goods vehicles. 

11.  In two cautioned interviews the defendant admitted, inter alia, stealing the motorcycle on 9 June 2020 at which time the motorcycle bore the number plate HH 1212; he did not have a valid driving licence for motorcycles and he did not have any third-party insurance.    

Mitigation

12.  In passing sentence, I have carefully considered the oral and written submissions of Ms Tsang, including that the defendant who is 48, provides financial support for his 17 year old daughter[4].

13.  I take into account the defendant suffers from hypertension, high cholesterol and hyperglycaemia; in 2014 he suffered from a stroke and that he is awaiting consultation with a  doctor about the possible onset of dementia[5].  

Theft of vehicle

14.  There are no guidelines for offences of theft of vehicles, each case depending on its own facts.  Deterrent sentences are nevertheless required.   As was said in HKSAR v Cheng Chun Ming[6]:

“Cases involving the theft or handling of motor cars are very serious offences and inevitably call for immediate custodial sentences of considerable length. This is absolutely necessary to act as a deterrent to a prevalent crime.”

15.  In Cheng Chun Ming the Court of Appeal upheld a starting point of 3 years’ imprisonment for the handling of one stolen vehicle, described as casual and opportunistic.

16.  In HKSAR v Fan Chi Wai leave to appeal against sentence of 2 years and 6 months’ imprisonment was refused for handling a stolen motorcycle worth some $40,000 and which had been modified so no ignition key was required[7].

17.  Ms Tsang informs the court that according to Mr Woo the value of the motorcycle was $30,000 and that on recovery he had to spend $15,000 on repairs[8]. 

18.  Taking into account all the circumstances of the theft including the value of the motorcycle was $30,000; Mr Woo had to spend $15,000 on repairing the motorcycle and that the prosecution proceeds on the basis that the defendant was not the one who stole the motorcycle from where Mr Woo parked his motorcycle and was not the one who changed the number plates, I am satisfied a starting point after trial of 2 years and 3 months’ imprisonment is appropriate[9]. 

19.  Although the defendant has a long criminal record, taking into account his last conviction for dishonesty was in 2011, I do not enhance the sentence by reason of previous offending.

20.  Giving the defendant full credit for his plea of guilty reduces the sentence to 1 year and 6 months’ imprisonment.

Charges 2 & 3 – driving without a valid driving licence and using a motor vehicle without third party insurance

21.  Taking into account this is the fourth conviction for driving without a licence I am satisfied a starting point of 4½ months’ imprisonment is appropriate.  Giving the defendant full credit for his plea of guilty reduces the sentence to 3 months’ imprisonment. 

22.  Taking into account this is the third conviction for using a vehicle without third party insurance and that the last conviction was just over 10 years ago, I am satisfied a starting point of 6 months’ imprisonment is appropriate.  Giving the defendant full credit for his pleas of guilty reduces the sentence to 4 months’ imprisonment. 

Totality

23.  I am satisfied concurrent sentences are appropriate for driving without a valid driving licence and using a motor vehicle without third party insurance. 

24.  The defendant has never passed a driving test and only holds an expired provisional licence.  Having never passed a driving test for any vehicle and having no third party insurance places all other road users at risk. I am satisfied that these two offences add to the culpability of the defendant on the theft charge. Consecutive sentences are appropriate subject to the totality principle. 

25.  I am satisfied that a wholly consecutive sentence is appropriate and that a total sentence of 1 year and 10 months’ imprisonment properly reflects the defendant’s overall criminal culpability on the three charges[10].

Disqualification

26.  By virtue of section 4(2)(a)  of the Motor Vehicles Insurance (Third Party Risks)  Ordinance unless the court finds special reasons there is mandatory disqualification for using a vehicle without third party insurance of not less than 12 months nor more than 3 years from the date of conviction.  There are no special reasons in this case.

27.  Taking into account this is the defendant’s third conviction for using a motor vehicle without insurance, I am satisfied that a period of 21 months’ disqualification is appropriate.  The defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 21 months from today. 

Sentence

28.  The defendant is convicted and sentenced as follows:

Charge 1 - 1 year and 6 months’ imprisonment;

Charge 2 – 3 months’ imprisonment; and

Charge 3 – 4 months’ imprisonment and disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 21 months from today.

29.  I order the sentences on charges 2 and 3 to be served concurrently but consecutive to charge 1 making a total sentence to be served by the defendant of 1 year and 10 months’ imprisonment.