A A
B B
DCCC 110/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 110 OF 2017 E
F F
----------------------------
G HKSAR G
v
H H
SO WAI MAN
I ---------------------------- I
J J
Before: Deputy District Judge E Lin
K Date: 24 July 2017 K
Present: Mr Kamlesh Arjan Sadhwani, Counsel on fiat, for HKSAR
L L
The defendant appeared in person
M Offence: [1] Theft（盜竊罪） M
[2] Driving without a valid driving licence（駕駛時無有效
N N
駕駛執照）
O O
[3] Using a motor vehicle without third party insurance（沒
P 有第三者保險而使用汽車） P
Q [4] Resisting a police officer in the execution of his duty（抗 Q
拒執行職責的警務人員）
R R
S -------------------------------------- S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
-2-
A A
B B
C 1. In this case, the defendant, So Wai Man, stole a car, drove it C
despite that he does not have a driver’s licence and third party insurance.
D D
He also tried to run away when he was intercepted by the police. As a
E result, he faced the following four charges:- E
F F
(1) Theft, contrary to section 9 of the Theft Ordinance, Cap
G 210; G
H H
(2) Driving without a Valid Driving Licence, contrary to
I section 42(1) and (4) of the Road Traffic Ordinance, I
Cap 374;
J J
K (3) Using a motor vehicle without Third Party Insurance, K
contrary to section 4(1) and (2)(a) of the Motor
L L
Vehicles Insurance (Third Party Risks) Ordinance, Cap
M 272; and, M
N N
(4) Resisting a Police officer in the Execution of his Duty,
O contrary to section 63 of the Police Force Ordinance, O
Cap 232.
P P
Q 2. He was convicted on his plea and admission of facts of all four Q
charges.
R R
S S
T T
U U
V V
-3-
A A
B B
Facts of the case (Charges 1 to 3)
C C
3. On 25 August 2016, the owner of the vehicle FV7772 left it
D D
at a Yuen Long garage for maintenance. It was then left in the garage
E awaiting collection by its owner. Its ignition key was left inside the car. E
At about 10 pm on 26 August 2016, an unknown Chinese male stole it from
F F
the garage.
G G
4. At about 2.13 am on 11 October 2016, the defendant was seen
H H
driving the stolen vehicle bearing registration plate LK3348 in Tai Po.
I After he alighted, a police officer who found the situation suspicious, tried I
to intercept him. Further investigation revealed and confirmed that the
J J
vehicle in question was in fact the stolen vehicle bearing registration plate
K FV7772. K
L L
Charge 4
M M
5. When the defendant was intercepted, he became emotional
N N
and attempted to prevent the police officers from getting close to the stolen
O vehicle. During the course of inquiries, the defendant tried to flee. Having O
run for a distance of about 5 metres, he reached Lam Tsuen River and
P P
jumped into it. Eventually he was apprehended.
Q Q
Cautioned Statement
R R
S 6. Under caution, the defendant contended he found the stolen S
vehicle unattended with its ignition key inside at Nam Hang about two
T T
months ago and decided to take it for his own use. The vehicle had already
U U
V V
-4-
A A
B B
the registration plate LK3348 affixed. He was unaware that they were not
C the original registration plates for the vehicle. He had no driving licence C
nor did he have any third party insurance for the stolen vehicle. Despite
D D
that he parked the vehicle near his home and drove it occasionally for his
E own use. E
F F
7. DNA evidence confirmed that the defendant, amongst two
G other unknown persons, had been in the stolen vehicle before. G
H H
Discussions
I I
8. In the absence of evidence to the contrary, I have to accept the
J J
defendant’s version that somehow the stolen vehicle, with different
K registration plates affixed, had been left unattended in the street. The K
defendant had used the opportunity to steal it for his own use. There is no
L L
evidence that the theft was carried out with careful planning or it was used
M to commit other crimes. M
N N
9. Nevertheless, theft of a vehicle is considered a very serious
O offence. As had been pointed in paragraph 10 of the judgment for HKSAR O
v Yu Chi Chiu, CACC 198/2015:-
P P
Q “(i) Regardless of the make/model of vehicle, it is a valuable Q
property worth a lot of money.
R R
(ii) A vehicle is also private space that occasionally or even
permanently stores all sorts of items that bear personal
S data and/or tend to expose confidential information (eg, S
phones, name cards, different types of documents/letters
and all types of memory cards or access cards).
T T
U U
V V
-5-
A A
B (iii) A vehicle is often parked in a public place, making it B
prone to be a target of theft.
C C
(iv) To the owner of a private vehicle, the loss of his vehicle
would cause him great inconvenience as he will lose his
D means of transportation, and when a vehicle is used for D
commercial or work purpose, the loss of it means that the
E
owner will lose his paraphernalia for making money E
which, in turn, will cause additional economic loss or
even affect his livelihood.”
F F
10. For that particular case, the Court of Appeal took the view that
G G
the starting point of 3 years’ imprisonment was not manifestly excessive.
H In my view, the reasons identified by the Court of Appeal for treating theft H
of vehicles seriously are still valid in the present case. I note that the
I I
defendant had admitted to have the use of the stolen vehicle for about two
J months:- meaning that its rightful owner had been deprived of the use of J
the same and had been put to a considerable inconvenience.
K K
L L
11. I also take into consideration of the fact that despite the
M
defendant had no permission to drive a vehicle on the road, he had been M
using the stolen vehicle “occasionally”, meaning he had been putting other
N N
users of the road at risk by driving without a licence and a valid third party
O insurance. The risk is also magnified by the fact that should an accident O
occur, the parties aggrieved would have no recourse to any monetary
P P
compensation in the absence of a third party insurance.
Q Q
12. In the circumstances, I would adopt 3 years’ imprisonment as
R R
the starting point. For the reasons already stated above, I would also use 3
S months’ imprisonment as the starting point for Charges 2 and 3, both to run S
concurrently. For Charge 3, the defendant is also disqualified from driving
T T
any vehicles for 2 years.
U U
V V
-6-
A A
B B
C 13. As to the resisting charge, I accept that the defendant’s C
reaction at the time was a desperate attempt to get away from the mess he
D D
realised he was in. It was visceral and unplanned. However, the
E defendant’s behaviour had shown a blatant disregard for the law and had E
put the safety of law enforcement officers at risk during the pursuit.
F F
14. The defendant had three convictions relating to resisting
G G
police officers. In 1996, he was convicted of one count of assaulting a
H police officer for which he was sentenced to 1 month’s imprisonment. In H
2006, he was convicted of two counts of resisting a police officer. For each
I I
offence, he was sentenced to 4 months’ imprisonment.
J J
15. Obviously, he has a cynical disregard for the authority of the
K K
law enforcement agents. More importantly, the sentences ordered in the
L past had no deterrent effect on him. For the present case, I will adopt a L
starting point of 3 months, reduced to 2 months by reason of his guilty plea.
M M
N 16. Having taken into consideration of the totality principle, I N
would order that the sentence ordered for Charges 1 to 3 to run concurrently
O O
but Charge 4 is to run consecutively.
P P
Other considerations
Q Q
R 17. I have considered the mitigations put forwarded by the R
defendant himself. At 41 at the time of the offence, he is neither young nor
S S
a first offender. On 17 previous occasions he had been convicted of a
T number of different offences most of which related to violence. In 1996, T
he was convicted of one count of “Taking conveyance Without Authority”
U U
V V
-7-
A A
B B
for which he was sentenced to a term of imprisonment. The court is also
C told that, on last Friday, he was convicted of one count of [Possession of C
Arms without a Licence] for which he was sentenced to a term of 6 months.
D D
So from his record and his age, there is very little by way of mitigation, nor
E could he persuade this court to be exceptionally lenient. E
F F
18. The court is also told by the defendant himself that he is a
G worker in the recycle business. He lives with his son who has in turn two G
younger children. He helped to pay for their utilities. All these personal
H H
backgrounds, in my view, are not valid mitigating factors. The only valid
I mitigation factor is the fact that he pleaded guilty. I
J J
19. The defendant for Charges 1 to 4 is to serve a term of
K imprisonment of 39 months. It is now reduced to 26 months to reflect his K
plea of guilty. Having considered the circumstances as a whole, I do not
L L
see any other factors which would justify any further act of leniency on my
M part. M
N N
20. To recap, the defendant is to serve a total of 26 months’
O imprisonment for the four offences. For Charge 3, he is also to be O
disqualified from driving all classes of vehicles for 2 years. They are to be
P P
consecutive to whatever sentence you are serving.
Q Q
R R
S ( E Lin ) S
Deputy District Judge
T T
U U
V V
A A
B B
DCCC 110/2017
C C
IN THE DISTRICT COURT OF THE
D D
HONG KONG SPECIAL ADMINISTRATIVE REGION
E CRIMINAL CASE NO 110 OF 2017 E
F F
----------------------------
G HKSAR G
v
H H
SO WAI MAN
I ---------------------------- I
J J
Before: Deputy District Judge E Lin
K Date: 24 July 2017 K
Present: Mr Kamlesh Arjan Sadhwani, Counsel on fiat, for HKSAR
L L
The defendant appeared in person
M Offence: [1] Theft（盜竊罪） M
[2] Driving without a valid driving licence（駕駛時無有效
N N
駕駛執照）
O O
[3] Using a motor vehicle without third party insurance（沒
P 有第三者保險而使用汽車） P
Q [4] Resisting a police officer in the execution of his duty（抗 Q
拒執行職責的警務人員）
R R
S -------------------------------------- S
REASONS FOR SENTENCE
T T
--------------------------------------
U U
V V
-2-
A A
B B
C 1. In this case, the defendant, So Wai Man, stole a car, drove it C
despite that he does not have a driver’s licence and third party insurance.
D D
He also tried to run away when he was intercepted by the police. As a
E result, he faced the following four charges:- E
F F
(1) Theft, contrary to section 9 of the Theft Ordinance, Cap
G 210; G
H H
(2) Driving without a Valid Driving Licence, contrary to
I section 42(1) and (4) of the Road Traffic Ordinance, I
Cap 374;
J J
K (3) Using a motor vehicle without Third Party Insurance, K
contrary to section 4(1) and (2)(a) of the Motor
L L
Vehicles Insurance (Third Party Risks) Ordinance, Cap
M 272; and, M
N N
(4) Resisting a Police officer in the Execution of his Duty,
O contrary to section 63 of the Police Force Ordinance, O
Cap 232.
P P
Q 2. He was convicted on his plea and admission of facts of all four Q
charges.
R R
S S
T T
U U
V V
-3-
A A
B B
Facts of the case (Charges 1 to 3)
C C
3. On 25 August 2016, the owner of the vehicle FV7772 left it
D D
at a Yuen Long garage for maintenance. It was then left in the garage
E awaiting collection by its owner. Its ignition key was left inside the car. E
At about 10 pm on 26 August 2016, an unknown Chinese male stole it from
F F
the garage.
G G
4. At about 2.13 am on 11 October 2016, the defendant was seen
H H
driving the stolen vehicle bearing registration plate LK3348 in Tai Po.
I After he alighted, a police officer who found the situation suspicious, tried I
to intercept him. Further investigation revealed and confirmed that the
J J
vehicle in question was in fact the stolen vehicle bearing registration plate
K FV7772. K
L L
Charge 4
M M
5. When the defendant was intercepted, he became emotional
N N
and attempted to prevent the police officers from getting close to the stolen
O vehicle. During the course of inquiries, the defendant tried to flee. Having O
run for a distance of about 5 metres, he reached Lam Tsuen River and
P P
jumped into it. Eventually he was apprehended.
Q Q
Cautioned Statement
R R
S 6. Under caution, the defendant contended he found the stolen S
vehicle unattended with its ignition key inside at Nam Hang about two
T T
months ago and decided to take it for his own use. The vehicle had already
U U
V V
-4-
A A
B B
the registration plate LK3348 affixed. He was unaware that they were not
C the original registration plates for the vehicle. He had no driving licence C
nor did he have any third party insurance for the stolen vehicle. Despite
D D
that he parked the vehicle near his home and drove it occasionally for his
E own use. E
F F
7. DNA evidence confirmed that the defendant, amongst two
G other unknown persons, had been in the stolen vehicle before. G
H H
Discussions
I I
8. In the absence of evidence to the contrary, I have to accept the
J J
defendant’s version that somehow the stolen vehicle, with different
K registration plates affixed, had been left unattended in the street. The K
defendant had used the opportunity to steal it for his own use. There is no
L L
evidence that the theft was carried out with careful planning or it was used
M to commit other crimes. M
N N
9. Nevertheless, theft of a vehicle is considered a very serious
O offence. As had been pointed in paragraph 10 of the judgment for HKSAR O
v Yu Chi Chiu, CACC 198/2015:-
P P
Q “(i) Regardless of the make/model of vehicle, it is a valuable Q
property worth a lot of money.
R R
(ii) A vehicle is also private space that occasionally or even
permanently stores all sorts of items that bear personal
S data and/or tend to expose confidential information (eg, S
phones, name cards, different types of documents/letters
and all types of memory cards or access cards).
T T
U U
V V
-5-
A A
B (iii) A vehicle is often parked in a public place, making it B
prone to be a target of theft.
C C
(iv) To the owner of a private vehicle, the loss of his vehicle
would cause him great inconvenience as he will lose his
D means of transportation, and when a vehicle is used for D
commercial or work purpose, the loss of it means that the
E
owner will lose his paraphernalia for making money E
which, in turn, will cause additional economic loss or
even affect his livelihood.”
F F
10. For that particular case, the Court of Appeal took the view that
G G
the starting point of 3 years’ imprisonment was not manifestly excessive.
H In my view, the reasons identified by the Court of Appeal for treating theft H
of vehicles seriously are still valid in the present case. I note that the
I I
defendant had admitted to have the use of the stolen vehicle for about two
J months:- meaning that its rightful owner had been deprived of the use of J
the same and had been put to a considerable inconvenience.
K K
L L
11. I also take into consideration of the fact that despite the
M
defendant had no permission to drive a vehicle on the road, he had been M
using the stolen vehicle “occasionally”, meaning he had been putting other
N N
users of the road at risk by driving without a licence and a valid third party
O insurance. The risk is also magnified by the fact that should an accident O
occur, the parties aggrieved would have no recourse to any monetary
P P
compensation in the absence of a third party insurance.
Q Q
12. In the circumstances, I would adopt 3 years’ imprisonment as
R R
the starting point. For the reasons already stated above, I would also use 3
S months’ imprisonment as the starting point for Charges 2 and 3, both to run S
concurrently. For Charge 3, the defendant is also disqualified from driving
T T
any vehicles for 2 years.
U U
V V
-6-
A A
B B
C 13. As to the resisting charge, I accept that the defendant’s C
reaction at the time was a desperate attempt to get away from the mess he
D D
realised he was in. It was visceral and unplanned. However, the
E defendant’s behaviour had shown a blatant disregard for the law and had E
put the safety of law enforcement officers at risk during the pursuit.
F F
14. The defendant had three convictions relating to resisting
G G
police officers. In 1996, he was convicted of one count of assaulting a
H police officer for which he was sentenced to 1 month’s imprisonment. In H
2006, he was convicted of two counts of resisting a police officer. For each
I I
offence, he was sentenced to 4 months’ imprisonment.
J J
15. Obviously, he has a cynical disregard for the authority of the
K K
law enforcement agents. More importantly, the sentences ordered in the
L past had no deterrent effect on him. For the present case, I will adopt a L
starting point of 3 months, reduced to 2 months by reason of his guilty plea.
M M
N 16. Having taken into consideration of the totality principle, I N
would order that the sentence ordered for Charges 1 to 3 to run concurrently
O O
but Charge 4 is to run consecutively.
P P
Other considerations
Q Q
R 17. I have considered the mitigations put forwarded by the R
defendant himself. At 41 at the time of the offence, he is neither young nor
S S
a first offender. On 17 previous occasions he had been convicted of a
T number of different offences most of which related to violence. In 1996, T
he was convicted of one count of “Taking conveyance Without Authority”
U U
V V
-7-
A A
B B
for which he was sentenced to a term of imprisonment. The court is also
C told that, on last Friday, he was convicted of one count of [Possession of C
Arms without a Licence] for which he was sentenced to a term of 6 months.
D D
So from his record and his age, there is very little by way of mitigation, nor
E could he persuade this court to be exceptionally lenient. E
F F
18. The court is also told by the defendant himself that he is a
G worker in the recycle business. He lives with his son who has in turn two G
younger children. He helped to pay for their utilities. All these personal
H H
backgrounds, in my view, are not valid mitigating factors. The only valid
I mitigation factor is the fact that he pleaded guilty. I
J J
19. The defendant for Charges 1 to 4 is to serve a term of
K imprisonment of 39 months. It is now reduced to 26 months to reflect his K
plea of guilty. Having considered the circumstances as a whole, I do not
L L
see any other factors which would justify any further act of leniency on my
M part. M
N N
20. To recap, the defendant is to serve a total of 26 months’
O imprisonment for the four offences. For Charge 3, he is also to be O
disqualified from driving all classes of vehicles for 2 years. They are to be
P P
consecutive to whatever sentence you are serving.
Q Q
R R
S ( E Lin ) S
Deputy District Judge
T T
U U
V V