DCCC750/2019 HKSAR v. NGAN TIN HUNG (also known as NGAI TIN HUNG) - LawHero
DCCC750/2019
區域法院（刑事）HH Judge Dufton28/3/2021[2021] HKDC 382
DCCC750/2019
A A
B B
DCCC 750/2019
[2021] HKDC 382
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 750 OF 2019
E ____________ E
HKSAR
F v F
NGAN TIN HUNG
G G
(also known as NGAI TIN HUNG)
H ____________ H
I Before: HH Judge Dufton I
Date: 29 March 2021
J Present: Mr Arthur C.Y. Wong, counsel on fiat, for HKSAR J
Mr Danny Chan, instructed by Anthony Kwan & Co,
K assigned by the Director of Legal Aid for the defendant K
Offences: (1) (9) & (10) Theft
L (盜竊罪) L
(2) Dangerous Driving
M (危險駕駛) M
(3) Possession of a prohibited weapon (管有違禁武器)
N (5) Using a registration mark on a vehicle with intent to N
deceive (意圖欺詐而在一輛汽車上使用登記號碼）
O (6) Driving without a valid driving licence O
(駕駛時無有效駕駛執照)
P
(7) Driving an unlicensed vehicle (駕駛未領牌車輛) P
(8) Using a motor vehicle without third party insurance
(沒有第三者保險而使用汽車)
Q Q
(12) Burglary (入屋犯法罪)
R
(13) Making off without payment (不付款而離去) R
(14) Assaulting a police officer in the execution of his duty
(襲擊執行職責的警務人員)
S S
T T
U U
V V
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A A
B B
REASONS FOR SENTENCE
C C
1. D1 pleads guilty to three charges of theft, contrary to section
D 9 of the Theft Ordinance1 (charges 1, 9 & 10)); one charge of dangerous D
driving, contrary to section 37(1) of the Road Traffic Ordinance 2 (charge
E E
2); one charge of possession of a prohibited weapon, contrary to section 4
F of the Weapons Ordinance 3 (charge 3); one charge of using a registration F
mark on a vehicle with intent to deceive, contrary to section 111 of the
G G
Road Traffic Ordinance (charge 5); one charge of driving without a valid
H driving licence, contrary to section 42 of the Road Traffic Ordinance H
(charge 6); one charge of driving an unlicensed vehicle, contrary to section
I I
52 of the Road Traffic Ordinance (charge 7); one charge of using a motor
J J
vehicle without third party insurance, contrary to section 4 of the Motor
K
Vehicles Insurance (Third Party Risks) Ordinance 4 (charge 8); one charge K
of burglary of domestic premises, contrary to section 11 of the Theft
L L
Ordinance (charge 12); one charge of making off without payment,
M
contrary to section 18C of the Theft Ordinance (charge 13) and one charge M
of assaulting a police officer in the execution of his duty, contrary to
N N
section 63 of the Police Force Ordinance5 (charge 14)6.
O O
2. Between 20 March 2019 and 23 May 2019 the defendant
P committed twelve offences. Full details of the offences are set out in the P
Q Q
1
Cap 210.
R R
2
Cap 374.
3
Cap 217.
S S
4
Cap 272.
5
T Cap 232. T
6
Charges 4 & 11 are left on the court file not to be proceeded with without leave or the court of the
Court of Appeal.
U U
V V
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A A
B B
re-amended summary of facts admitted by the defendant today and
C summarised below. C
D Theft and dangerous driving (charges 1 & 2) D
E E
3. At around 1350 hours on 21 May 2019 Ms Ou, who was
F driving her car US 9863, stopped in layby near the Esso Petrol Station on F
Tai Po Tai Wo Road. Ms Ou alighted from the car to hand a mobile phone
G G
to her husband, Mr Ngai, who was driving his own car TV 1051 and had
H also stopped at the layby. H
I 4. As Ms Ou handed over the phone to Mr Ngai she saw the I
defendant by the front passenger seat of her car holding her handbag. The
J J
handbag contained Ms Ou’s wallet, her Hong Kong identity card; her
K K
Home Visit Permit; her smartphone; her Octopus card; two bank cards and
L
HKD10,260 and RMB 510 cash. L
M 5. Ms Ou shouted for help and chased after the defendant. After M
about ten meters the defendant boarded a private car bearing number plates
N N
with the registration mark LD 9920. Ms Ou ran to the driver’s door to try
O stop the defendant from leaving. On seeing her handbag in the car Ms Ou O
yelled asking the defendant to return her handbag. The defendant ignored
P P
Ms Ou and started the car.
Q Q
6. Ms Ou got into the driver’s seat and tried to step on the brakes
R R
but the defendant drove away. Ms Ou held onto the steering wheel with
S her right leg outside the car. The defendant drove along Tai Po Tai Wo S
Road. After around ten seconds the defendant accelerated at which time
T T
Ms Ou managed to get her right leg inside the car.
U U
V V
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A A
B B
7. Ms Ou kept yelling at the defendant to stop. After about thirty
C meters the defendant stopped at which time Mr Ngai stopped his car in C
front of LD 9920. A few seconds later the defendant suddenly accelerated
D D
and hit Mr Ngai’s car and came to a halt.
E E
8. Mr Ngai alighted and approached LD 9920. Mr Ngai removed
F the ignition key and retrieved Ms Ou’s handbag who then alighted from F
the car. Suddenly the defendant fled from the front passenger door.
G G
H 9. Mr Ngai chased after the defendant shouting out stealing. H
With the assistance of two passers-by and a security guard the defendant
I I
was subdued and the police called. Under caution the defendant admitted
J stealing the handbag because he had no money. J
K K
10. Ms Ou sustained abrasions on her right leg and left knee. Mr
L
Ngai suffered from bruises on his right arm and abrasions on one of his L
fingers and his bottom. The cost of repair of Mr Ngai’s car was $50,000.
M M
Photographs of the final position of the cars have been submitted to court.
N N
Possession of a prohibited weapon (charge 3)
O O
11. The police found on the ground beside LD 9920 a bag inside
P P
which was an extendable baton. Forensic scientist Dr Ng examined the
Q baton and confirmed the baton was a gravity-operated steel baton. I have Q
viewed the extendable baton in court.
R R
S S
T T
U U
V V
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A A
B B
12. Under caution and in a video recorded interview the defendant
C stated that he kept the baton to prevent being assaulted because he earlier C
7
had disputes with someone and had been assaulted .
D D
Using a registration mark on a vehicle with intent to deceive (charge 5)
E E
F 13. Investigation revealed that the number plates bearing the F
registration mark LD 9920 were false and that the correct registration mark
G G
of the car was TY 38598.
H H
14. LD 9920 belonged to a car owned by Mr Chui on which the
I genuine number plates were all along attached to his car. I
J J
15. Under caution and in a video recorded interview, the
K defendant stated that he had the number plates made which he used on the K
car because the licence had expired and he wanted to avoid traffic
L L
prosecution9.
M M
Driving without a valid driving licence; driving an unlicensed vehicle; and
N N
using a motor vehicle without third party insurance (charges 6, 7 & 8)
O O
16. Transport Department records show that both the vehicle
P licence and the insurance coverage of TV 3859 had expired and that the P
defendant only held a learner’s driving licence which expired in 2004 10.
Q Q
R R
S 7 S
See §§11 & 43 (b) of the re-amended summary of facts.
8
See §§13 & 14 of the re-amended summary of facts.
T 9
T
See §§15 & 43 (d) of the re-amended summary of facts.
10
See §§29 & 31 of the re-amended summary of facts.
U U
V V
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A A
B B
17. Ms Kayo Chan purchased TY 3859 on 7 March 2019. Ms
C Chan, who did not have a driving licence, gave one of the car keys to the C
defendant to arrange the licensing and insurance of the car. Ms Chan did
D D
not know that the defendant failed to licence and insure the car and did not
E know the defendant did not have a driving licence11. E
F 18. Under caution and in a video recorded interview, the F
defendant admitted the vehicle licence had expired; he drove without a
G G
12
licence and he did not buy any insurance for the car .
H H
Theft of vehicle licence (charge 9)
I I
19. In the evening of 20 March 2019 when Ms Mok parked her
J J
car TJ 4035 outside Flora Plaza, Lui Ming Road in Fanling she forgot to
K K
close the windows. The next morning, Ms Mok discovered that the vehicle
L
licence was missing. The vehicle licence number was 02702375. L
M 20. The vehicle licence attached to the windscreen of LD 9920 M
was also false. Examination of the vehicle licence revealed that two
N N
documents had been stuck together including the vehicle licence stolen
O from TJ 4035, parts of which had been cut out. Photographs showing the O
false licence have been submitted to court13.
P P
Q 21. In a video recorded interview, the defendant admitted that he Q
stole the vehicle licence from a car near Flora Plaza and placed the vehicle
R R
11
See §9 of the re-amended summary of facts.
S S
12
See §§30, 43 (d) & 43 (h) of the re-amended summary of facts.
13
T Charge 4 using a vehicle licence with intent to deceive is one of the charges left on the court file T
not to be proceeded with without leave of the court or the Court of Appeal.
U U
V V
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A A
B B
licence under the false licence to make the false licence look more
C authentic. C
D Theft (charge 10) D
E E
22. At around 1930 hours on 16 April 2019 Mr Ng parked a
F private car bearing testing plates T13938 outside Yan Fai House in Fanling. F
The next day Mr Ng discovered the testing plates were missing.
G G
23. In a video recorded interview, the defendant admitted stealing
H H
the testing plates but disposed of them because they were not useful.
I I
Burglary (charge 12)
J J
K
24. Inside the glovebox of LD 9920 the police found a smartphone. K
The phone’s case contained the Hong Kong Identity card of Ms Ng.
L L
25. Ms Ng resided at the front portion, 4th Floor, No. 58 San Fung
M M
Avenue in Sheung Shui. At around 0920 hours on 18 May 2019 the
N defendant asked whether Ms Ng’s residence was a brothel. When Ms Ng N
said no the defendant left. Shortly afterwards Ms Ng discovered that her
O O
smartphone, which had been placed on a tea table inside her home near the
P entrance, was missing. P
Q Q
26. Under caution and in a video recorded interview, the
R defendant admitted he went to Ms Ng’s residence looking for a prostitute R
and that when he was leaving he stole the smartphone14.
S S
T T
14
See §§24 & 43 (c) of the re-amended summary of facts.
U U
V V
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A A
B B
Making off without payment (charge 13)
C C
27. At around 1130 hours on 19 May 2019 LD 9920 filled petrol
D at the Sinopec petrol station on Yat Ming Road in Fanling. The defendant D
left without paying for the petrol in the sum of $800.90.
E E
F 28. Under caution and in a video recorded interview, the F
defendant said he did not have enough money to pay for the petrol and left
G G
without paying15.
H H
Assaulting a police officer (charge 14)
I I
29. After the defendant was arrested he was admitted to bed 20,
J J
Ward E2 of the Alice Ho Miu Ling Nethersole Hospital in Tai Po. On 23
K May 2019 PC 24378 and PC 22907 were on duty guarding the defendant. K
The officers were instructed that the approval of the OC Case must be
L L
sought before allowing any visitor to see the defendant.
M M
30. The defendant’s hands were restrained by a chain. At around
N N
1646 hours when PC 22907 went to the washroom PC 24378 unlocked one
O side of the defendant’s restraint chain and locked it onto the bed. O
P 31. At 1655 hours a visitor came to see the defendant but was P
stopped by PC 24378. When PC 24378 tried to contact the OC case to seek
Q Q
his approval the defendant became agitated and started shouting and
R swearing. R
S S
T T
15
See §§28 & 43 (g) of the re-amended summary of facts.
U U
V V
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A A
B B
32. The defendant started to pull his restraint chain which was
C attached to the bed. When PC 24378 tried to control the defendant, the C
defendant spat on PC 24378’s nose and kicked his stomach three times.
D D
When PC 24378 attempted to handcuff the defendant the defendant used
E his head to bump against PC 24378’s forehead and chin. The defendant E
was eventually subdued.
F F
33. PC 23478 sustained an abrasion on his right forearm and had
G G
tenderness on the chin and upper abdomen.
H H
Mitigation
I I
34. In passing sentence, I have carefully considered the oral and
J J
written submissions of Mr Chan, including that the defendant is 45,
K K
divorced and now lives with his girlfriend. Mr Chan says the defendant
L
now needs crutches to walk16. I note in court today the defendant is using L
a walking stick.
M M
Sentence
N N
O Theft and dangerous driving (charges 1 & 2) O
P 35. I have considered the Reasons for Sentence in HKSAR v Mau P
Fu Pong referred to the court by Mr Chan suffice to say that each case is
Q Q
17
decided on its own facts and circumstances .
R R
S S
T 16
T
See §§4 & 5 of the written mitigation submission.
17
DCC 542/2015. See §§13-17 of the written mitigation submission.
U U
V V
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A A
B B
Theft
C C
36. I am satisfied a starting point of 12 months’ imprisonment is
D appropriate for theft of a handbag from an unattended vehicle18. D
E E
Persistent offender
F F
37. A starting point may be increased where the defendant is a
G persistent offender. The defendant has appeared in court on thirty G
occasions since 1990 amassing a total of fifty-six convictions. Twenty- six
H H
convictions are for offences of dishonesty, including eighteen offences of
I theft. The last conviction for theft was in 2017 when the defendant was I
sentenced to 8 months’ imprisonment19.
J J
K 38. I am satisfied the defendant is a persistent offender and K
enhance the starting point by 3 months to 1 year and 3 months’
L L
imprisonment. Giving the defendant full credit for his plea of guilty
M reduces the sentence to 10 months’ imprisonment. M
N N
Dangerous driving
O O
39. In R v Boswell the Court of Appeal set out a number of
P aggravating and mitigating factors, factors which are relevant to both P
dangerous driving and dangerous driving causing death20. These factors
Q Q
21
were revised in R v Cooksley .
R R
S 18 S
See for example HKSAR v Woo Ming On HCMA 1028/1997.
19
Item 34 on the criminal record.
T 20
T
[1984] 3 All ER 35.
21
[2003] RTR 32.
U U
V V
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A A
B B
40. Whilst in Boswell the court said that the presence of one or
C more aggravating features will generally necessitate a custodial sentence, C
the court in Cooksley as applied in the Secretary for Justice v Poon Wing
D D
Kay & another emphasised that a sentencing court must however look at
E the overall circumstances and the overall culpability of the offender22. E
F 41. This principle was repeated in Secretary for Justice v Lau Sin F
Ting where the Court of Appeal said that each case is different and may
G G
vary greatly in its circumstances and too formulaic an approach to sentence
H may result in injustice23. H
I I
Aggravating features
J J
42. The aggravating features in this case include that the
K K
defendant drove dangerously to avoid apprehension and Ms Ou recovering
L
her handbag; although Mr Ngai had stopped his car in front the defendant L
rammed into the car in attempt to escape causing significant damage to the
M M
car; the defendant was driving without a valid licence, the only licence the
N defendant held being an expired learner’s licence and the defendant had no N
third-party insurance.
O O
43. The degree of seriousness depends on the precise
P P
circumstances of the driving. In Poon Wing Kay the court said that one
Q major factor to be considered as an aggravating factor justifying a heavy Q
sentence is where a person has driven with selfish disregard for the safety
R R
of other road users or with a degree of recklessness. Whilst the case is not
S S
T 22
T
[2007] 1 HKLRD 660.
23
[2010] 5 HKLRD 318 at §36.
U U
V V
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A A
B B
as serious as Poon Wing Kay the defendant showed a selfish disregard for
C the safety of Ms Ou. C
D 44. Driving in this manner put Ms Ou at risk of serious injury, D
which risk was foreseeable. Fortunately, Ms Ou did not sustain serious
E E
injury and has fully recovered from her injuries.
F F
45. I am satisfied the proper starting point after trial is 1 year and
G G
6 months’ imprisonment. Giving the defendant full credit for his plea of
H guilty reduces the sentence to 12 months’ imprisonment. H
I Disqualification I
J J
46. There is mandatory disqualification for dangerous driving
K unless the court for special reasons decides not to make such an order. I K
find no special reasons not to disqualify the defendant.
L L
M
47. I am satisfied taking into account the circumstances of the M
driving that a period of 2 years’ disqualification is appropriate. The
N N
defendant is disqualified from holding or obtaining a driving licence for all
O classes of vehicles for a period of 2 years. O
P 48. By virtue of section 72A (1A) of the Road Traffic Ordinance P
a court shall order a person convicted of dangerous driving to attend and
Q Q
complete a driving improvement course unless the court for special reasons
R decides not to make such an order. The traffic record reveals the defendant R
has never obtained a full driving licence and therefore must first pass a test
S S
of competence to drive a motor vehicle before obtaining a probationary
T driving licence. In these circumstances I am satisfied there are special T
U U
V V
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A A
B B
reasons not to order the defendant to attend and complete a driving
C improvement course. C
D Possession of a prohibited weapon (charge 3) D
E E
49. Mr Chan submits that there is no evidence showing that the
F defendant used or attempted to use the extendable baton 24 . The F
circumstances of the finding of the extendable baton in a bag carried by the
G G
defendant suggests a real risk of the baton being used for an unlawful
H purpose. Furthermore, weapons of this kind are capable of being carried H
in a concealed manner and inflicting serious injury.
I I
50. I am satisfied the proper starting point after trial is 12 months’
J J
imprisonment. Giving the defendant full credit for his plea of guilty
K K
reduces the sentence to 8 months’ imprisonment25.
L L
Using a registration mark on a vehicle with intent to deceive; driving
M without a valid driving licence; driving an unlicensed vehicle; and using a M
motor vehicle without third party insurance (charges 5, 6, 7 & 8)
N N
O 51. Since 2011 the defendant has one conviction for an offence O
contrary to section 111 of the Road Traffic Ordinance; four convictions for
P P
driving without a valid driving licence; two convictions for driving an
Q unlicensed vehicle and four convictions for using a motor vehicle without Q
third party insurance.
R R
S S
T 24
T
See §§11 & 12 of the supplemental written mitigation submission.
25
See for example HKSAR v Fan Kwok Wai CACC 264/2005 at §14.
U U
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A A
B B
52. I also note that at the time of his arrest the defendant was
C already under investigation for using a motor vehicle without third party C
26
insurance, driving an unlicensed vehicle and driving whilst disqualified .
D D
53. I regard the use of false plates to avoid detection as a serious
E E
offence. I am satisfied a starting point of 9 months’ imprisonment is
F appropriate for a second offence. Giving the defendant full credit for his F
plea of guilty reduces the sentence on charge 5 to 6 months’ imprisonment.
G G
H 54. I am satisfied a starting point of 4½ months’ imprisonment is H
appropriate for a fifth offence of driving without a valid driving licence
I I
and 3 months’ imprisonment for a third offence of driving an unlicensed
J vehicle. Giving the defendant full credit for his pleas of guilty reduces the J
sentence on charge 6 to 3 months’ imprisonment and on charge 7 to 2
K K
months’ imprisonment.
L L
55. Driving without insurance places all other road users at risk.
M M
This is more so considering that the defendant has never passed a test of
N competence to drive a motor vehicle. I am satisfied a starting point after N
trial of 9 months’ imprisonment is appropriate for a fifth offence of using
O O
a vehicle without third party insurance. Giving the defendant full credit
P for his plea of guilty reduces the sentence on charge 8 to 6 months’ P
imprisonment.
Q Q
R R
S S
T T
26
FLS 4846/2019, FLS 4847/2019 & FLS 4848/2019 (items 36, 37 & 38 on the criminal record).
Copies of the summons and brief facts of the case were supplied to Mr Chan.
U U
V V
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A A
B B
Disqualification
C C
56. By virtue of section 4(2)(a) of the Motor Vehicles Insurance
D (Third Party Risks) Ordinance unless the court finds special reasons there D
is also mandatory disqualification for using a vehicle without third party
E E
insurance of not less than 12 months nor more than 3 years from the date
F of conviction. Again I find no special reasons not to disqualify the F
defendant.
G G
H 57. I am satisfied a period of 2 years’ disqualification is H
appropriate. The defendant is disqualified from holding or obtaining a
I I
driving licence for all classes of vehicles for a period 2 years.
J J
Theft of vehicle licence (charge 9)
K K
58. I am satisfied that a starting point of 3 months’ imprisonment
L L
is appropriate for the theft of the vehicle licence which the defendant used
M on LD 9920. Giving the defendant full credit for his plea of guilty reduces M
the sentence to 2 months’ imprisonment.
N N
O Theft of testing plates (charge 10) O
P 59. I am satisfied that a starting point of 3 months’ imprisonment P
is also appropriate for the theft of the testing plates. Giving the defendant
Q Q
full credit for his plea of guilty reduces the sentence to 2 months’
R imprisonment. R
S S
T T
U U
V V
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A A
B B
Burglary (charge 12)
C C
60. Whilst I have good deal of scepticism that the defendant was
D looking for a prostitute rather than using this as an excuse to try enter the D
flat, I proceed on the basis this was an opportunistic offence and that the
E E
defendant never went inside the flat only stretching his hand inside and
F took the mobile phone without Ms Ng realising. F
G G
61. The facts are however very different to the facts in HKSAR v
H Cheung To Ming cited by Mr Chan, not least the premises in that case was H
the Mai Po Marshes Wildlife Education Centre and not domestic premises
I I
and only two packets of instant noodles were stolen not a mobile phone 27.
J J
62. I am satisfied that a starting point of 2 years’ imprisonment is
K K
appropriate. Although as noted earlier the defendant has committed
L
eighteen offences of theft, the last in 2017, taking into account the last time L
the defendant committed burglary was in 2004 I do not enhance the starting
M M
point. Giving the defendant full credit for his plea of guilty reduces the
N sentence to 1 year and 4 months’ imprisonment. N
O Making off without payment (charge 13) O
P P
63. Taking into account that the total amount unpaid was just over
Q $800, I am satisfied the proper starting point after trial is 3 months’ Q
imprisonment. Giving the defendant full credit for his plea of guilty
R R
reduces the sentence to 2 months’ imprisonment.
S S
T T
27
[2006] 2 HKLRD 259. See §§19 & 20 of the written mitigation submission.
U U
V V
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A A
B B
Assaulting a police officer (charge 14)
C C
64. Assaulting a police officer is a serious offence which attracts
D a sentence of immediate imprisonment. Mr Chan submits the defendant D
acted in the heat of the moment and not in the course of committing other
E E
28
crimes or fleeing from the scene of crime .
F F
65. Notwithstanding the defendant acted in an emotional state and
G G
was restrained the assault was persistent including spitting on PC 24378.
H Taking into account the only injury sustained by PC 24378 was an abrasion H
on his forearm and that this is not the first time the defendant has been
I I
convicted of assaulting a police officer having been convicted of resisting
J arrest in 2004 and assaulting a police officer in 2008, I am satisfied a J
starting point of 4½ months’ imprisonment is appropriate.
K K
L
66. Giving the defendant full credit for his plea of guilty reduces L
the sentence to 3 months’ imprisonment.
M M
Totality
N N
O 67. Mr Chan submits that charges 1-3 and 5-8 happened/were O
discovered on the same date and therefore the sentence for these charges
P P
could be made mostly, if not wholly concurrent 29 . With respect this
Q submission overlooks the seriousness of the offences and that most of the Q
offences are separate and distinct even if committed or discovered on the
R R
same day.
S S
28
T See §12 of the supplemental written mitigation submission. T
29
DCC 542/2015. See §§13-17 of the written mitigation submission and §§13-15 of the
supplemental written mitigation submission.
U U
V V
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A A
B B
Theft and dangerous driving (charges 1 & 2)
C C
68. The dangerous driving was committed to avoid apprehension
D for the theft and is therefore separate and distinct. I am satisfied wholly D
consecutive sentences are appropriate. I am satisfied that a total sentence
E E
of 1 year and 10 months’ imprisonment properly reflects the defendant’s
F criminal culpability on the two charges. F
G G
Possession of a prohibited weapon (charge 3)
H H
69. Possession of a prohibited weapon is a separate and distinct
I offence which adds to the culpability of the defendant. A consecutive I
sentence is appropriate. I am satisfied that 4 months’ imprisonment is to
J J
be made consecutive to charges 1 & 2 and 4 months concurrent making a
K
total of 2 years and 2 months’ imprisonment which I am satisfied properly K
L
reflects the defendant’s criminal culpability on charges 1, 2 & 3. L
M Using a registration mark on a vehicle with intent to deceive (charge 5) M
N N
70. This charge relates to the defendant seeking to avoid traffic
O prosecution and is therefore separate and distinct from charges 1, 2 & 3 O
and adds to the culpability of the defendant. A consecutive sentence is
P P
appropriate. I am satisfied that 2 months’ imprisonment is to be made
Q consecutive to charges 1, 2 & 3 and 4 months concurrent making a total of Q
2 years and 4 months’ imprisonment which I am satisfied properly reflects
R R
the defendant’s criminal culpability on charges 1, 2, 3 & 5.
S S
T T
U U
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A A
B B
Driving without a valid driving licence; driving an unlicensed vehicle; and
C using a motor vehicle without third party insurance (charges 6, 7 & 8) C
D 71. I am satisfied these three offences are interrelated for which D
concurrent sentences are appropriate and are interrelated to charges 2 & 5.
E E
I order the sentence on charges 6, 7 & 8 to be served concurrent to charges
F 1, 2, 3 & 5. F
G G
Theft of vehicle licence (charge 9)
H H
72. Although the stolen vehicle licence was used on LD 9920 the
I theft of the vehicle licence is a separate and distinct offence which adds to I
the culpability of the defendant. I am satisfied that 1 month imprisonment
J J
is to be made consecutive to charges 1, 2, 3, 5, 6, 7 & 8 and 1 month
K
concurrent making a total of 2 years and 5 months’ imprisonment which I K
L
am satisfied properly reflects the defendant’s criminal culpability on L
charges 1, 2, 3, 5, 6, 7, 8 & 9.
M M
Theft of testing plates (charge 10)
N N
O 73. Similarly, the theft of the testing plates is a separate and O
distinct offence which adds to the culpability of the defendant. I am
P P
satisfied that 1 month imprisonment is to be made consecutive to charges
Q 1, 2, 3, 5, 6, 7, 8 & 9 and 1 month concurrent making a total of 2 years and Q
6 months’ imprisonment which I am satisfied properly reflects the
R R
defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.
S S
T T
U U
V V
- 20 -
A A
B B
Burglary (charge 12)
C C
74. The burglary is a separate and distinct offence which adds to
D the culpability of the defendant. I am satisfied that 6 months’ D
imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9 &
E E
10 and 10 months concurrent making a total of 3 years’ imprisonment
F which I am satisfied properly reflects the defendant’s criminal culpability F
on charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.
G G
H Making off without payment (charge 13) H
I 75. This offence is also a separate and distinct offence which adds I
to the culpability of the defendant. I am satisfied that 1 month
J J
imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9, 10
K K
& 12 and 1 month concurrent making a total of 3 years and 1 month
L
imprisonment which I am satisfied properly reflects the defendant’s L
criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9, 10, 12 & 13.
M M
Assaulting a police officer (charge 14)
N N
O 76. Assaulting a police officer is also a separate and distinct O
offence which adds to the culpability of the defendant. I am satisfied a
P P
wholly consecutive sentence is appropriate making a total of 3 years and 4
Q months’ imprisonment which I am satisfied properly reflects the Q
defendant’s criminality on the twelve charges and takes into account the
R R
defendant’s personal circumstances and the seriousness of the offences30.
S S
T T
30
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
U U
V V
- 21 -
A A
B B
Injury
C C
77. Mr Chan informs the court that the defendant fractured his
D pelvis when he was involved in a traffic accident which was the subject of D
the summonses FLS 4846/2019, FLS 4847/2019 & FLS 4848/201931. Mr
E E
Chan says at first the defendant made good progress in recovering from his
F injuries and was able to walk, however the injuries were aggravated as a F
result of crashing into Mr Ngai’s car. The defendant now needs to use a
G G
walking stick.
H H
78. Whilst sympathetic to anyone with serious injury the
I I
defendant has brought this misfortune upon himself by driving when he
J was not only disqualified from driving but had never passed a driving test. J
I find no grounds to reduce the sentence on any charge or the total sentence
K K
to be served by the defendant.
L L
79. The defendant is convicted and sentenced as follows:
M M
Charge 1 - 10 months’ imprisonment;
N N
O Charge 2 – 12 months’ imprisonment consecutive to charge 1; and O
disqualified from holding or obtaining a driving licence for all classes of
P P
vehicles for a period of 2 years;
Q Q
Charge 3 – 8 months’ imprisonment with 4 months consecutive and 4
R months concurrent to charges 1 & 2; R
S S
T T
31
See the brief facts in FLS 4846/2019, FLS 4847/2019 & FLS 4848/2019.
U U
V V
- 22 -
A A
B B
Charge 5 - 6 months’ imprisonment with 2 months consecutive and 4
C months concurrent to charges 1, 2 & 3; C
D Charge 6 - 3 months’ imprisonment concurrent to charges 1, 2, 3 & 5; D
E E
Charge 7 - 2 months’ imprisonment concurrent to charges 1, 2, 3, 5 & 6;
F F
Charge 8 - 6 months’ imprisonment concurrent to charges 1, 2, 3, 5, 6 & 7
G and disqualified from holding or obtaining a driving licence for all classes G
of vehicles for a period 2 years;
H H
I Charge 9 - 2 months’ imprisonment with 1 month consecutive and 1 month I
concurrent to charges 1, 2, 3, 5, 6, 7 & 8.
J J
K
Charge 10 - 2 months’ imprisonment with 1 month consecutive and 1 K
month concurrent to charges 1, 2, 3, 5, 6, 7, 8 & 9.
L L
Charge 12 - 16 months’ imprisonment with 6 months consecutive and 10
M M
months concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.
N N
Charge 13 - 2 months’ imprisonment with 1 month consecutive and 1
O O
month concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.
P P
Charge 14 - 3 months’ imprisonment consecutive to charges 1, 2, 3, 5, 6,
Q 7, 8, 9, 10, 12 & 13. Q
R R
80. The total sentence to be served by the defendant is 3 years and
S 4 months’ imprisonment. S
T T
U U
V V
- 23 -
A A
B B
Disqualification
C C
81. The defendant is disqualified from holding or obtaining a
D driving licence for all classes of vehicles for a period of 2 years for D
dangerous driving (charge 2).
E E
F 82. On 24 June 2019 the defendant was disqualified from driving F
for a period of 3 years for offences of driving whilst disqualified and
G G
driving without insurance32. That disqualification expires on 23 June 2022.
H H
83. I am satisfied the disqualification for dangerous driving is to
I be made consecutive to the current disqualification. This means that the I
defendant is disqualified until 23 June 2024.
J J
K 84. The defendant is also disqualified for a period of 2 years for K
using a motor vehicle without third party insurance (charge 8). Section
L L
4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance
M provides that disqualification is from the date of conviction. M
N N
85. The disqualification will therefore expire on 16 March 2023
O prior to the expiry of the disqualification ordered for the dangerous driving. O
P (D. J. DUFTON) P
District Judge
Q Q
32
Items 36 & 38 of the criminal record. The criminal record first submitted to court stated the
disqualifications were consecutive. Having checked the court record of FLS 4846/2019, FLS
R R
4847/2019 & FLS 4848/2019 the magistrate’s notes make no mention of consecutive
disqualifications. The traffic record makes no mention whatsoever of the disqualification orders
S made. This is because Notice of Disqualification order was not sent to the Transport Department S
by the magistrate’s clerk. The notice was only sent after I instructed my clerk to request a copy of
the notice at which time the magistracy discovered the notice had not been sent. The magistracy
T then issued the Notice of Disqualification order in respect of both charges stating that both T
disqualifications were to run from 24 June 2019. The criminal record was subsequently amended
accordingly to read that the disqualification item 38 was concurrent to item 36.
U U
V V
HKSAR v. NGAN TIN HUNG (also known as NGAI TIN HUNG)
A A
B B
DCCC 750/2019
[2021] HKDC 382
C C
IN THE DISTRICT COURT OF THE
D HONG KONG SPECIAL ADMINISTRATIVE REGION D
CRIMINAL CASE NO. 750 OF 2019
E ____________ E
HKSAR
F v F
NGAN TIN HUNG
G G
(also known as NGAI TIN HUNG)
H ____________ H
I Before: HH Judge Dufton I
Date: 29 March 2021
J Present: Mr Arthur C.Y. Wong, counsel on fiat, for HKSAR J
Mr Danny Chan, instructed by Anthony Kwan & Co,
K assigned by the Director of Legal Aid for the defendant K
Offences: (1) (9) & (10) Theft
L (盜竊罪) L
(2) Dangerous Driving
M (危險駕駛) M
(3) Possession of a prohibited weapon (管有違禁武器)
N (5) Using a registration mark on a vehicle with intent to N
deceive (意圖欺詐而在一輛汽車上使用登記號碼）
O (6) Driving without a valid driving licence O
(駕駛時無有效駕駛執照)
P
(7) Driving an unlicensed vehicle (駕駛未領牌車輛) P
(8) Using a motor vehicle without third party insurance
(沒有第三者保險而使用汽車)
Q Q
(12) Burglary (入屋犯法罪)
R
(13) Making off without payment (不付款而離去) R
(14) Assaulting a police officer in the execution of his duty
(襲擊執行職責的警務人員)
S S
T T
U U
V V
-2-
A A
B B
REASONS FOR SENTENCE
C C
1. D1 pleads guilty to three charges of theft, contrary to section
D 9 of the Theft Ordinance1 (charges 1, 9 & 10)); one charge of dangerous D
driving, contrary to section 37(1) of the Road Traffic Ordinance 2 (charge
E E
2); one charge of possession of a prohibited weapon, contrary to section 4
F of the Weapons Ordinance 3 (charge 3); one charge of using a registration F
mark on a vehicle with intent to deceive, contrary to section 111 of the
G G
Road Traffic Ordinance (charge 5); one charge of driving without a valid
H driving licence, contrary to section 42 of the Road Traffic Ordinance H
(charge 6); one charge of driving an unlicensed vehicle, contrary to section
I I
52 of the Road Traffic Ordinance (charge 7); one charge of using a motor
J J
vehicle without third party insurance, contrary to section 4 of the Motor
K
Vehicles Insurance (Third Party Risks) Ordinance 4 (charge 8); one charge K
of burglary of domestic premises, contrary to section 11 of the Theft
L L
Ordinance (charge 12); one charge of making off without payment,
M
contrary to section 18C of the Theft Ordinance (charge 13) and one charge M
of assaulting a police officer in the execution of his duty, contrary to
N N
section 63 of the Police Force Ordinance5 (charge 14)6.
O O
2. Between 20 March 2019 and 23 May 2019 the defendant
P committed twelve offences. Full details of the offences are set out in the P
Q Q
1
Cap 210.
R R
2
Cap 374.
3
Cap 217.
S S
4
Cap 272.
5
T Cap 232. T
6
Charges 4 & 11 are left on the court file not to be proceeded with without leave or the court of the
Court of Appeal.
U U
V V
-3-
A A
B B
re-amended summary of facts admitted by the defendant today and
C summarised below. C
D Theft and dangerous driving (charges 1 & 2) D
E E
3. At around 1350 hours on 21 May 2019 Ms Ou, who was
F driving her car US 9863, stopped in layby near the Esso Petrol Station on F
Tai Po Tai Wo Road. Ms Ou alighted from the car to hand a mobile phone
G G
to her husband, Mr Ngai, who was driving his own car TV 1051 and had
H also stopped at the layby. H
I 4. As Ms Ou handed over the phone to Mr Ngai she saw the I
defendant by the front passenger seat of her car holding her handbag. The
J J
handbag contained Ms Ou’s wallet, her Hong Kong identity card; her
K K
Home Visit Permit; her smartphone; her Octopus card; two bank cards and
L
HKD10,260 and RMB 510 cash. L
M 5. Ms Ou shouted for help and chased after the defendant. After M
about ten meters the defendant boarded a private car bearing number plates
N N
with the registration mark LD 9920. Ms Ou ran to the driver’s door to try
O stop the defendant from leaving. On seeing her handbag in the car Ms Ou O
yelled asking the defendant to return her handbag. The defendant ignored
P P
Ms Ou and started the car.
Q Q
6. Ms Ou got into the driver’s seat and tried to step on the brakes
R R
but the defendant drove away. Ms Ou held onto the steering wheel with
S her right leg outside the car. The defendant drove along Tai Po Tai Wo S
Road. After around ten seconds the defendant accelerated at which time
T T
Ms Ou managed to get her right leg inside the car.
U U
V V
-4-
A A
B B
7. Ms Ou kept yelling at the defendant to stop. After about thirty
C meters the defendant stopped at which time Mr Ngai stopped his car in C
front of LD 9920. A few seconds later the defendant suddenly accelerated
D D
and hit Mr Ngai’s car and came to a halt.
E E
8. Mr Ngai alighted and approached LD 9920. Mr Ngai removed
F the ignition key and retrieved Ms Ou’s handbag who then alighted from F
the car. Suddenly the defendant fled from the front passenger door.
G G
H 9. Mr Ngai chased after the defendant shouting out stealing. H
With the assistance of two passers-by and a security guard the defendant
I I
was subdued and the police called. Under caution the defendant admitted
J stealing the handbag because he had no money. J
K K
10. Ms Ou sustained abrasions on her right leg and left knee. Mr
L
Ngai suffered from bruises on his right arm and abrasions on one of his L
fingers and his bottom. The cost of repair of Mr Ngai’s car was $50,000.
M M
Photographs of the final position of the cars have been submitted to court.
N N
Possession of a prohibited weapon (charge 3)
O O
11. The police found on the ground beside LD 9920 a bag inside
P P
which was an extendable baton. Forensic scientist Dr Ng examined the
Q baton and confirmed the baton was a gravity-operated steel baton. I have Q
viewed the extendable baton in court.
R R
S S
T T
U U
V V
-5-
A A
B B
12. Under caution and in a video recorded interview the defendant
C stated that he kept the baton to prevent being assaulted because he earlier C
7
had disputes with someone and had been assaulted .
D D
Using a registration mark on a vehicle with intent to deceive (charge 5)
E E
F 13. Investigation revealed that the number plates bearing the F
registration mark LD 9920 were false and that the correct registration mark
G G
of the car was TY 38598.
H H
14. LD 9920 belonged to a car owned by Mr Chui on which the
I genuine number plates were all along attached to his car. I
J J
15. Under caution and in a video recorded interview, the
K defendant stated that he had the number plates made which he used on the K
car because the licence had expired and he wanted to avoid traffic
L L
prosecution9.
M M
Driving without a valid driving licence; driving an unlicensed vehicle; and
N N
using a motor vehicle without third party insurance (charges 6, 7 & 8)
O O
16. Transport Department records show that both the vehicle
P licence and the insurance coverage of TV 3859 had expired and that the P
defendant only held a learner’s driving licence which expired in 2004 10.
Q Q
R R
S 7 S
See §§11 & 43 (b) of the re-amended summary of facts.
8
See §§13 & 14 of the re-amended summary of facts.
T 9
T
See §§15 & 43 (d) of the re-amended summary of facts.
10
See §§29 & 31 of the re-amended summary of facts.
U U
V V
-6-
A A
B B
17. Ms Kayo Chan purchased TY 3859 on 7 March 2019. Ms
C Chan, who did not have a driving licence, gave one of the car keys to the C
defendant to arrange the licensing and insurance of the car. Ms Chan did
D D
not know that the defendant failed to licence and insure the car and did not
E know the defendant did not have a driving licence11. E
F 18. Under caution and in a video recorded interview, the F
defendant admitted the vehicle licence had expired; he drove without a
G G
12
licence and he did not buy any insurance for the car .
H H
Theft of vehicle licence (charge 9)
I I
19. In the evening of 20 March 2019 when Ms Mok parked her
J J
car TJ 4035 outside Flora Plaza, Lui Ming Road in Fanling she forgot to
K K
close the windows. The next morning, Ms Mok discovered that the vehicle
L
licence was missing. The vehicle licence number was 02702375. L
M 20. The vehicle licence attached to the windscreen of LD 9920 M
was also false. Examination of the vehicle licence revealed that two
N N
documents had been stuck together including the vehicle licence stolen
O from TJ 4035, parts of which had been cut out. Photographs showing the O
false licence have been submitted to court13.
P P
Q 21. In a video recorded interview, the defendant admitted that he Q
stole the vehicle licence from a car near Flora Plaza and placed the vehicle
R R
11
See §9 of the re-amended summary of facts.
S S
12
See §§30, 43 (d) & 43 (h) of the re-amended summary of facts.
13
T Charge 4 using a vehicle licence with intent to deceive is one of the charges left on the court file T
not to be proceeded with without leave of the court or the Court of Appeal.
U U
V V
-7-
A A
B B
licence under the false licence to make the false licence look more
C authentic. C
D Theft (charge 10) D
E E
22. At around 1930 hours on 16 April 2019 Mr Ng parked a
F private car bearing testing plates T13938 outside Yan Fai House in Fanling. F
The next day Mr Ng discovered the testing plates were missing.
G G
23. In a video recorded interview, the defendant admitted stealing
H H
the testing plates but disposed of them because they were not useful.
I I
Burglary (charge 12)
J J
K
24. Inside the glovebox of LD 9920 the police found a smartphone. K
The phone’s case contained the Hong Kong Identity card of Ms Ng.
L L
25. Ms Ng resided at the front portion, 4th Floor, No. 58 San Fung
M M
Avenue in Sheung Shui. At around 0920 hours on 18 May 2019 the
N defendant asked whether Ms Ng’s residence was a brothel. When Ms Ng N
said no the defendant left. Shortly afterwards Ms Ng discovered that her
O O
smartphone, which had been placed on a tea table inside her home near the
P entrance, was missing. P
Q Q
26. Under caution and in a video recorded interview, the
R defendant admitted he went to Ms Ng’s residence looking for a prostitute R
and that when he was leaving he stole the smartphone14.
S S
T T
14
See §§24 & 43 (c) of the re-amended summary of facts.
U U
V V
-8-
A A
B B
Making off without payment (charge 13)
C C
27. At around 1130 hours on 19 May 2019 LD 9920 filled petrol
D at the Sinopec petrol station on Yat Ming Road in Fanling. The defendant D
left without paying for the petrol in the sum of $800.90.
E E
F 28. Under caution and in a video recorded interview, the F
defendant said he did not have enough money to pay for the petrol and left
G G
without paying15.
H H
Assaulting a police officer (charge 14)
I I
29. After the defendant was arrested he was admitted to bed 20,
J J
Ward E2 of the Alice Ho Miu Ling Nethersole Hospital in Tai Po. On 23
K May 2019 PC 24378 and PC 22907 were on duty guarding the defendant. K
The officers were instructed that the approval of the OC Case must be
L L
sought before allowing any visitor to see the defendant.
M M
30. The defendant’s hands were restrained by a chain. At around
N N
1646 hours when PC 22907 went to the washroom PC 24378 unlocked one
O side of the defendant’s restraint chain and locked it onto the bed. O
P 31. At 1655 hours a visitor came to see the defendant but was P
stopped by PC 24378. When PC 24378 tried to contact the OC case to seek
Q Q
his approval the defendant became agitated and started shouting and
R swearing. R
S S
T T
15
See §§28 & 43 (g) of the re-amended summary of facts.
U U
V V
-9-
A A
B B
32. The defendant started to pull his restraint chain which was
C attached to the bed. When PC 24378 tried to control the defendant, the C
defendant spat on PC 24378’s nose and kicked his stomach three times.
D D
When PC 24378 attempted to handcuff the defendant the defendant used
E his head to bump against PC 24378’s forehead and chin. The defendant E
was eventually subdued.
F F
33. PC 23478 sustained an abrasion on his right forearm and had
G G
tenderness on the chin and upper abdomen.
H H
Mitigation
I I
34. In passing sentence, I have carefully considered the oral and
J J
written submissions of Mr Chan, including that the defendant is 45,
K K
divorced and now lives with his girlfriend. Mr Chan says the defendant
L
now needs crutches to walk16. I note in court today the defendant is using L
a walking stick.
M M
Sentence
N N
O Theft and dangerous driving (charges 1 & 2) O
P 35. I have considered the Reasons for Sentence in HKSAR v Mau P
Fu Pong referred to the court by Mr Chan suffice to say that each case is
Q Q
17
decided on its own facts and circumstances .
R R
S S
T 16
T
See §§4 & 5 of the written mitigation submission.
17
DCC 542/2015. See §§13-17 of the written mitigation submission.
U U
V V
- 10 -
A A
B B
Theft
C C
36. I am satisfied a starting point of 12 months’ imprisonment is
D appropriate for theft of a handbag from an unattended vehicle18. D
E E
Persistent offender
F F
37. A starting point may be increased where the defendant is a
G persistent offender. The defendant has appeared in court on thirty G
occasions since 1990 amassing a total of fifty-six convictions. Twenty- six
H H
convictions are for offences of dishonesty, including eighteen offences of
I theft. The last conviction for theft was in 2017 when the defendant was I
sentenced to 8 months’ imprisonment19.
J J
K 38. I am satisfied the defendant is a persistent offender and K
enhance the starting point by 3 months to 1 year and 3 months’
L L
imprisonment. Giving the defendant full credit for his plea of guilty
M reduces the sentence to 10 months’ imprisonment. M
N N
Dangerous driving
O O
39. In R v Boswell the Court of Appeal set out a number of
P aggravating and mitigating factors, factors which are relevant to both P
dangerous driving and dangerous driving causing death20. These factors
Q Q
21
were revised in R v Cooksley .
R R
S 18 S
See for example HKSAR v Woo Ming On HCMA 1028/1997.
19
Item 34 on the criminal record.
T 20
T
[1984] 3 All ER 35.
21
[2003] RTR 32.
U U
V V
- 11 -
A A
B B
40. Whilst in Boswell the court said that the presence of one or
C more aggravating features will generally necessitate a custodial sentence, C
the court in Cooksley as applied in the Secretary for Justice v Poon Wing
D D
Kay & another emphasised that a sentencing court must however look at
E the overall circumstances and the overall culpability of the offender22. E
F 41. This principle was repeated in Secretary for Justice v Lau Sin F
Ting where the Court of Appeal said that each case is different and may
G G
vary greatly in its circumstances and too formulaic an approach to sentence
H may result in injustice23. H
I I
Aggravating features
J J
42. The aggravating features in this case include that the
K K
defendant drove dangerously to avoid apprehension and Ms Ou recovering
L
her handbag; although Mr Ngai had stopped his car in front the defendant L
rammed into the car in attempt to escape causing significant damage to the
M M
car; the defendant was driving without a valid licence, the only licence the
N defendant held being an expired learner’s licence and the defendant had no N
third-party insurance.
O O
43. The degree of seriousness depends on the precise
P P
circumstances of the driving. In Poon Wing Kay the court said that one
Q major factor to be considered as an aggravating factor justifying a heavy Q
sentence is where a person has driven with selfish disregard for the safety
R R
of other road users or with a degree of recklessness. Whilst the case is not
S S
T 22
T
[2007] 1 HKLRD 660.
23
[2010] 5 HKLRD 318 at §36.
U U
V V
- 12 -
A A
B B
as serious as Poon Wing Kay the defendant showed a selfish disregard for
C the safety of Ms Ou. C
D 44. Driving in this manner put Ms Ou at risk of serious injury, D
which risk was foreseeable. Fortunately, Ms Ou did not sustain serious
E E
injury and has fully recovered from her injuries.
F F
45. I am satisfied the proper starting point after trial is 1 year and
G G
6 months’ imprisonment. Giving the defendant full credit for his plea of
H guilty reduces the sentence to 12 months’ imprisonment. H
I Disqualification I
J J
46. There is mandatory disqualification for dangerous driving
K unless the court for special reasons decides not to make such an order. I K
find no special reasons not to disqualify the defendant.
L L
M
47. I am satisfied taking into account the circumstances of the M
driving that a period of 2 years’ disqualification is appropriate. The
N N
defendant is disqualified from holding or obtaining a driving licence for all
O classes of vehicles for a period of 2 years. O
P 48. By virtue of section 72A (1A) of the Road Traffic Ordinance P
a court shall order a person convicted of dangerous driving to attend and
Q Q
complete a driving improvement course unless the court for special reasons
R decides not to make such an order. The traffic record reveals the defendant R
has never obtained a full driving licence and therefore must first pass a test
S S
of competence to drive a motor vehicle before obtaining a probationary
T driving licence. In these circumstances I am satisfied there are special T
U U
V V
- 13 -
A A
B B
reasons not to order the defendant to attend and complete a driving
C improvement course. C
D Possession of a prohibited weapon (charge 3) D
E E
49. Mr Chan submits that there is no evidence showing that the
F defendant used or attempted to use the extendable baton 24 . The F
circumstances of the finding of the extendable baton in a bag carried by the
G G
defendant suggests a real risk of the baton being used for an unlawful
H purpose. Furthermore, weapons of this kind are capable of being carried H
in a concealed manner and inflicting serious injury.
I I
50. I am satisfied the proper starting point after trial is 12 months’
J J
imprisonment. Giving the defendant full credit for his plea of guilty
K K
reduces the sentence to 8 months’ imprisonment25.
L L
Using a registration mark on a vehicle with intent to deceive; driving
M without a valid driving licence; driving an unlicensed vehicle; and using a M
motor vehicle without third party insurance (charges 5, 6, 7 & 8)
N N
O 51. Since 2011 the defendant has one conviction for an offence O
contrary to section 111 of the Road Traffic Ordinance; four convictions for
P P
driving without a valid driving licence; two convictions for driving an
Q unlicensed vehicle and four convictions for using a motor vehicle without Q
third party insurance.
R R
S S
T 24
T
See §§11 & 12 of the supplemental written mitigation submission.
25
See for example HKSAR v Fan Kwok Wai CACC 264/2005 at §14.
U U
V V
- 14 -
A A
B B
52. I also note that at the time of his arrest the defendant was
C already under investigation for using a motor vehicle without third party C
26
insurance, driving an unlicensed vehicle and driving whilst disqualified .
D D
53. I regard the use of false plates to avoid detection as a serious
E E
offence. I am satisfied a starting point of 9 months’ imprisonment is
F appropriate for a second offence. Giving the defendant full credit for his F
plea of guilty reduces the sentence on charge 5 to 6 months’ imprisonment.
G G
H 54. I am satisfied a starting point of 4½ months’ imprisonment is H
appropriate for a fifth offence of driving without a valid driving licence
I I
and 3 months’ imprisonment for a third offence of driving an unlicensed
J vehicle. Giving the defendant full credit for his pleas of guilty reduces the J
sentence on charge 6 to 3 months’ imprisonment and on charge 7 to 2
K K
months’ imprisonment.
L L
55. Driving without insurance places all other road users at risk.
M M
This is more so considering that the defendant has never passed a test of
N competence to drive a motor vehicle. I am satisfied a starting point after N
trial of 9 months’ imprisonment is appropriate for a fifth offence of using
O O
a vehicle without third party insurance. Giving the defendant full credit
P for his plea of guilty reduces the sentence on charge 8 to 6 months’ P
imprisonment.
Q Q
R R
S S
T T
26
FLS 4846/2019, FLS 4847/2019 & FLS 4848/2019 (items 36, 37 & 38 on the criminal record).
Copies of the summons and brief facts of the case were supplied to Mr Chan.
U U
V V
- 15 -
A A
B B
Disqualification
C C
56. By virtue of section 4(2)(a) of the Motor Vehicles Insurance
D (Third Party Risks) Ordinance unless the court finds special reasons there D
is also mandatory disqualification for using a vehicle without third party
E E
insurance of not less than 12 months nor more than 3 years from the date
F of conviction. Again I find no special reasons not to disqualify the F
defendant.
G G
H 57. I am satisfied a period of 2 years’ disqualification is H
appropriate. The defendant is disqualified from holding or obtaining a
I I
driving licence for all classes of vehicles for a period 2 years.
J J
Theft of vehicle licence (charge 9)
K K
58. I am satisfied that a starting point of 3 months’ imprisonment
L L
is appropriate for the theft of the vehicle licence which the defendant used
M on LD 9920. Giving the defendant full credit for his plea of guilty reduces M
the sentence to 2 months’ imprisonment.
N N
O Theft of testing plates (charge 10) O
P 59. I am satisfied that a starting point of 3 months’ imprisonment P
is also appropriate for the theft of the testing plates. Giving the defendant
Q Q
full credit for his plea of guilty reduces the sentence to 2 months’
R imprisonment. R
S S
T T
U U
V V
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A A
B B
Burglary (charge 12)
C C
60. Whilst I have good deal of scepticism that the defendant was
D looking for a prostitute rather than using this as an excuse to try enter the D
flat, I proceed on the basis this was an opportunistic offence and that the
E E
defendant never went inside the flat only stretching his hand inside and
F took the mobile phone without Ms Ng realising. F
G G
61. The facts are however very different to the facts in HKSAR v
H Cheung To Ming cited by Mr Chan, not least the premises in that case was H
the Mai Po Marshes Wildlife Education Centre and not domestic premises
I I
and only two packets of instant noodles were stolen not a mobile phone 27.
J J
62. I am satisfied that a starting point of 2 years’ imprisonment is
K K
appropriate. Although as noted earlier the defendant has committed
L
eighteen offences of theft, the last in 2017, taking into account the last time L
the defendant committed burglary was in 2004 I do not enhance the starting
M M
point. Giving the defendant full credit for his plea of guilty reduces the
N sentence to 1 year and 4 months’ imprisonment. N
O Making off without payment (charge 13) O
P P
63. Taking into account that the total amount unpaid was just over
Q $800, I am satisfied the proper starting point after trial is 3 months’ Q
imprisonment. Giving the defendant full credit for his plea of guilty
R R
reduces the sentence to 2 months’ imprisonment.
S S
T T
27
[2006] 2 HKLRD 259. See §§19 & 20 of the written mitigation submission.
U U
V V
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A A
B B
Assaulting a police officer (charge 14)
C C
64. Assaulting a police officer is a serious offence which attracts
D a sentence of immediate imprisonment. Mr Chan submits the defendant D
acted in the heat of the moment and not in the course of committing other
E E
28
crimes or fleeing from the scene of crime .
F F
65. Notwithstanding the defendant acted in an emotional state and
G G
was restrained the assault was persistent including spitting on PC 24378.
H Taking into account the only injury sustained by PC 24378 was an abrasion H
on his forearm and that this is not the first time the defendant has been
I I
convicted of assaulting a police officer having been convicted of resisting
J arrest in 2004 and assaulting a police officer in 2008, I am satisfied a J
starting point of 4½ months’ imprisonment is appropriate.
K K
L
66. Giving the defendant full credit for his plea of guilty reduces L
the sentence to 3 months’ imprisonment.
M M
Totality
N N
O 67. Mr Chan submits that charges 1-3 and 5-8 happened/were O
discovered on the same date and therefore the sentence for these charges
P P
could be made mostly, if not wholly concurrent 29 . With respect this
Q submission overlooks the seriousness of the offences and that most of the Q
offences are separate and distinct even if committed or discovered on the
R R
same day.
S S
28
T See §12 of the supplemental written mitigation submission. T
29
DCC 542/2015. See §§13-17 of the written mitigation submission and §§13-15 of the
supplemental written mitigation submission.
U U
V V
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A A
B B
Theft and dangerous driving (charges 1 & 2)
C C
68. The dangerous driving was committed to avoid apprehension
D for the theft and is therefore separate and distinct. I am satisfied wholly D
consecutive sentences are appropriate. I am satisfied that a total sentence
E E
of 1 year and 10 months’ imprisonment properly reflects the defendant’s
F criminal culpability on the two charges. F
G G
Possession of a prohibited weapon (charge 3)
H H
69. Possession of a prohibited weapon is a separate and distinct
I offence which adds to the culpability of the defendant. A consecutive I
sentence is appropriate. I am satisfied that 4 months’ imprisonment is to
J J
be made consecutive to charges 1 & 2 and 4 months concurrent making a
K
total of 2 years and 2 months’ imprisonment which I am satisfied properly K
L
reflects the defendant’s criminal culpability on charges 1, 2 & 3. L
M Using a registration mark on a vehicle with intent to deceive (charge 5) M
N N
70. This charge relates to the defendant seeking to avoid traffic
O prosecution and is therefore separate and distinct from charges 1, 2 & 3 O
and adds to the culpability of the defendant. A consecutive sentence is
P P
appropriate. I am satisfied that 2 months’ imprisonment is to be made
Q consecutive to charges 1, 2 & 3 and 4 months concurrent making a total of Q
2 years and 4 months’ imprisonment which I am satisfied properly reflects
R R
the defendant’s criminal culpability on charges 1, 2, 3 & 5.
S S
T T
U U
V V
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A A
B B
Driving without a valid driving licence; driving an unlicensed vehicle; and
C using a motor vehicle without third party insurance (charges 6, 7 & 8) C
D 71. I am satisfied these three offences are interrelated for which D
concurrent sentences are appropriate and are interrelated to charges 2 & 5.
E E
I order the sentence on charges 6, 7 & 8 to be served concurrent to charges
F 1, 2, 3 & 5. F
G G
Theft of vehicle licence (charge 9)
H H
72. Although the stolen vehicle licence was used on LD 9920 the
I theft of the vehicle licence is a separate and distinct offence which adds to I
the culpability of the defendant. I am satisfied that 1 month imprisonment
J J
is to be made consecutive to charges 1, 2, 3, 5, 6, 7 & 8 and 1 month
K
concurrent making a total of 2 years and 5 months’ imprisonment which I K
L
am satisfied properly reflects the defendant’s criminal culpability on L
charges 1, 2, 3, 5, 6, 7, 8 & 9.
M M
Theft of testing plates (charge 10)
N N
O 73. Similarly, the theft of the testing plates is a separate and O
distinct offence which adds to the culpability of the defendant. I am
P P
satisfied that 1 month imprisonment is to be made consecutive to charges
Q 1, 2, 3, 5, 6, 7, 8 & 9 and 1 month concurrent making a total of 2 years and Q
6 months’ imprisonment which I am satisfied properly reflects the
R R
defendant’s criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.
S S
T T
U U
V V
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A A
B B
Burglary (charge 12)
C C
74. The burglary is a separate and distinct offence which adds to
D the culpability of the defendant. I am satisfied that 6 months’ D
imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9 &
E E
10 and 10 months concurrent making a total of 3 years’ imprisonment
F which I am satisfied properly reflects the defendant’s criminal culpability F
on charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.
G G
H Making off without payment (charge 13) H
I 75. This offence is also a separate and distinct offence which adds I
to the culpability of the defendant. I am satisfied that 1 month
J J
imprisonment is to be made consecutive to charges 1, 2, 3, 5, 6, 7, 8, 9, 10
K K
& 12 and 1 month concurrent making a total of 3 years and 1 month
L
imprisonment which I am satisfied properly reflects the defendant’s L
criminal culpability on charges 1, 2, 3, 5, 6, 7, 8, 9, 10, 12 & 13.
M M
Assaulting a police officer (charge 14)
N N
O 76. Assaulting a police officer is also a separate and distinct O
offence which adds to the culpability of the defendant. I am satisfied a
P P
wholly consecutive sentence is appropriate making a total of 3 years and 4
Q months’ imprisonment which I am satisfied properly reflects the Q
defendant’s criminality on the twelve charges and takes into account the
R R
defendant’s personal circumstances and the seriousness of the offences30.
S S
T T
30
See HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.
U U
V V
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A A
B B
Injury
C C
77. Mr Chan informs the court that the defendant fractured his
D pelvis when he was involved in a traffic accident which was the subject of D
the summonses FLS 4846/2019, FLS 4847/2019 & FLS 4848/201931. Mr
E E
Chan says at first the defendant made good progress in recovering from his
F injuries and was able to walk, however the injuries were aggravated as a F
result of crashing into Mr Ngai’s car. The defendant now needs to use a
G G
walking stick.
H H
78. Whilst sympathetic to anyone with serious injury the
I I
defendant has brought this misfortune upon himself by driving when he
J was not only disqualified from driving but had never passed a driving test. J
I find no grounds to reduce the sentence on any charge or the total sentence
K K
to be served by the defendant.
L L
79. The defendant is convicted and sentenced as follows:
M M
Charge 1 - 10 months’ imprisonment;
N N
O Charge 2 – 12 months’ imprisonment consecutive to charge 1; and O
disqualified from holding or obtaining a driving licence for all classes of
P P
vehicles for a period of 2 years;
Q Q
Charge 3 – 8 months’ imprisonment with 4 months consecutive and 4
R months concurrent to charges 1 & 2; R
S S
T T
31
See the brief facts in FLS 4846/2019, FLS 4847/2019 & FLS 4848/2019.
U U
V V
- 22 -
A A
B B
Charge 5 - 6 months’ imprisonment with 2 months consecutive and 4
C months concurrent to charges 1, 2 & 3; C
D Charge 6 - 3 months’ imprisonment concurrent to charges 1, 2, 3 & 5; D
E E
Charge 7 - 2 months’ imprisonment concurrent to charges 1, 2, 3, 5 & 6;
F F
Charge 8 - 6 months’ imprisonment concurrent to charges 1, 2, 3, 5, 6 & 7
G and disqualified from holding or obtaining a driving licence for all classes G
of vehicles for a period 2 years;
H H
I Charge 9 - 2 months’ imprisonment with 1 month consecutive and 1 month I
concurrent to charges 1, 2, 3, 5, 6, 7 & 8.
J J
K
Charge 10 - 2 months’ imprisonment with 1 month consecutive and 1 K
month concurrent to charges 1, 2, 3, 5, 6, 7, 8 & 9.
L L
Charge 12 - 16 months’ imprisonment with 6 months consecutive and 10
M M
months concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9 & 10.
N N
Charge 13 - 2 months’ imprisonment with 1 month consecutive and 1
O O
month concurrent to charges 1, 2, 3, 5, 6, 7, 8, 9, 10 & 12.
P P
Charge 14 - 3 months’ imprisonment consecutive to charges 1, 2, 3, 5, 6,
Q 7, 8, 9, 10, 12 & 13. Q
R R
80. The total sentence to be served by the defendant is 3 years and
S 4 months’ imprisonment. S
T T
U U
V V
- 23 -
A A
B B
Disqualification
C C
81. The defendant is disqualified from holding or obtaining a
D driving licence for all classes of vehicles for a period of 2 years for D
dangerous driving (charge 2).
E E
F 82. On 24 June 2019 the defendant was disqualified from driving F
for a period of 3 years for offences of driving whilst disqualified and
G G
driving without insurance32. That disqualification expires on 23 June 2022.
H H
83. I am satisfied the disqualification for dangerous driving is to
I be made consecutive to the current disqualification. This means that the I
defendant is disqualified until 23 June 2024.
J J
K 84. The defendant is also disqualified for a period of 2 years for K
using a motor vehicle without third party insurance (charge 8). Section
L L
4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance
M provides that disqualification is from the date of conviction. M
N N
85. The disqualification will therefore expire on 16 March 2023
O prior to the expiry of the disqualification ordered for the dangerous driving. O
P (D. J. DUFTON) P
District Judge
Q Q
32
Items 36 & 38 of the criminal record. The criminal record first submitted to court stated the
disqualifications were consecutive. Having checked the court record of FLS 4846/2019, FLS
R R
4847/2019 & FLS 4848/2019 the magistrate’s notes make no mention of consecutive
disqualifications. The traffic record makes no mention whatsoever of the disqualification orders
S made. This is because Notice of Disqualification order was not sent to the Transport Department S
by the magistrate’s clerk. The notice was only sent after I instructed my clerk to request a copy of
the notice at which time the magistracy discovered the notice had not been sent. The magistracy
T then issued the Notice of Disqualification order in respect of both charges stating that both T
disqualifications were to run from 24 June 2019. The criminal record was subsequently amended
accordingly to read that the disqualification item 38 was concurrent to item 36.
U U
V V