A A
B B
DCCC 1050 & 1054/2017 (Consolidated)
C [2018] HKDC 573 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 1050 & 1054 OF 2017
F F
G ---------------------------- G
HKSAR
H H
v
I CHOW HEI CHOY I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 28 March 2018
L L
Present: Ms Lam Cho Yi Jojo, Public Prosecutor of the Department of
M Justice, for HKSAR M
Mr Wong Shun Yin Terry, instructed by C K Mok & Co,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] to [9] Theft (盜竊罪) O
P
[10] & [12] Driving without a valid driving licence (駕駛時 P
無有效駕駛執照)
Q Q
[11] & [13] Using a motor vehicle without third party
R insurance (沒有第三者保險而使用汽車) R
[14] Failure to produce proof of identity on demand (未能在
S S
規定下出示身分證明文件)
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. The defendant faced nine charges of theft, contrary to E
section 9 of the Theft Ordinance, Cap 210 (1st charge to the 9th charge),
F F
and two charges of driving without a valid driving licence, contrary to
G section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (10th charge G
and 12th charge), two charges of using a motor vehicle without third party
H H
insurance, contrary to section 4(1) and 4(2)(a) of the Motor Vehicles
I Insurance (Third Party Risks) Ordinance, Cap 272 (11th charge and 13th I
charge), and one charge of failure to produce proof of identity on demand,
J J
contrary to section 17C(3) of the Immigration Ordinance, Cap 115.
K K
Summary of Facts
L L
M 2. According to the agreed Summary of Facts, the defendant M
had:-
N N
O (a) between 21 April 2017 and 23 April 2017 stole O
motorcycle MM9789 (1st charge); and
P P
Q (b) between 12 May 2017 and 13 May 2017 stole Q
motorcycle HR832 (2nd charge);
R R
S (c) on or about 15 May 2017 stole motorcycle SJ1248 S
(3rd charge);
T T
U U
V V
-3-
A A
B B
(d) between 17 May 2017 and 18 May 2017 stole
C motorcycle PX4825 (4th charge); and C
D D
(e) between 17 May 2017 and 19 May 2017 stole
E motorcycle LF6255 (5th charge); E
F F
(f) between 7 July 2017 and 8 July 2017 stole motorcycle
G HL4961 (6th charge); G
H H
(g) between 13 July 2017 and 14 July 2017 stole
I motorcycle SU1514 (7th charge); I
J J
(h) between 21 July 2017 and 25 July 2017 stole
K motorcycle MM6123 (8th charge); and K
L L
(i) between 26 July 2017 and 1 August 2017 stole
M motorcycle UR2603 (9th charge) from their respective M
owners.
N N
O Save for PX4825 and UR2603, all motorcycles stolen were O
subsequently recovered.
P P
Q 3. The defendant also admitted driving motorcycle SJ1248 and Q
UR2603 without a valid driving licence, being the 10th charge and the
R R
th
12 charge respectively. He also drove these motorcycles without third-
S party insurance, being the subject matter of 11th charge and the 13th charge S
respectively.
T T
U U
V V
-4-
A A
B B
Records
C C
4. It is agreed that defendant was released from prison on
D D
11 March 2017 after being sentenced to 31 months of imprisonment for
E convictions of six charges of theft of vehicle. E
F F
Mitigation
G G
5. Mr Wong for the defendant submitted to this court that
H H
defendant committed the present offences out of his craving for driving
I motorcycles. He said the defendant had promised to obtain a driving I
licence upon his release from prison this time and he would work and save
J J
money to buy himself a motorcycle instead of continuing stealing
K motorcycles from others. He also asked this court to give defendant the K
sentencing discount on his guilty plea.
L L
M Sentence M
N N
6. In this case, the defendant committed the first offence only
O two months after he was released from prison after serving 31 months’ O
imprisonment for similar convictions, theft from vehicles. It is considered
P P
by Mr Wong for the defence that 3 years is the appropriate starting point
Q for theft from vehicles, putting aside any aggravating factors. Such starting Q
point for sentence has been approved by the Court of Appeal in the case of
R R
HKSAR v Yu Chi Chiu [2017] 1 HKLR 400.
S S
7. Here, however, the defendant is clearly a persistent offender
T T
so far as thefts of vehicle are concerned which is an aggravating feature in
U U
V V
-5-
A A
B B
sentencing in our present case. I will enhance the starting point by
C 1 month. C
D 8. The appropriate starting point in my view for the 1st charge is D
3 years and 1 month, and on his guilty plea, he is entitled to full one-third
E E
sentencing discount. He is therefore sentenced on this charge to 2 years
F and 20 days’ imprisonment. F
G G
9. Similarly, for 2nd charge and 3rd charge, he is sentenced to
H 2 years and 20 days for each of the 2nd charge and 3rd charge. H
I I
10. Coming to the sentence for the 4th charge, the defendant
J committed the present offence two to three days after he was being arrested J
and put on bail in respect of the 3rd charge. This is clearly another
K K
aggravating feature in sentencing for this offence and the subsequent
L offences. The defendant had a total disregard of the law in Hong Kong. I L
would enhance the sentence of 3 years and 1 month by another 2 months.
M M
The sentencing starting point for the offence is therefore 3 years and 3
N N
months. After giving the defendant the sentencing discount on his guilty
O
plea, he is sentenced to 2 years and 2 months for this offence. O
P P
11. And similarly, for the sentence for the 5th charge, the
Q 6th charge, the 7th charge, the 8th charge and the 9th charge, the defendant Q
is by reason as aforesaid, after his guilty plea sentenced to 2 years and 2
R R
months for each of these offences.
S S
12. For the 10th and the 12th charge, defendant has a similar
T T
conviction on 20 April 2000 when he was sentenced to 6 months’
U U
V V
-6-
A A
B B
imprisonment. The maximum penalty for this offence for the second and
C subsequent conviction is a fine of $10,000 and 6 months’ imprisonment. C
The defendant, well knowing the requirements of the law and the risks to
D D
other road users whilst he is on the road, casually commits the offence for
E his own personal pleasure. The appropriate sentencing starting point is E
3 months’ imprisonment and after giving him one-third sentencing
F F
discount, defendant is sentenced to 2 months’ imprisonment for each of the
G 10th charge and the 12th charge. G
H H
13. For the 11th and the 13th charge, defendant has similar
I conviction on 20 April 2000 when he was sentenced to 6 months’ I
imprisonment. The maximum penalty for this offence is a fine of $10,000
J J
and 12 months’ imprisonment coupled with a disqualification from holding
K or obtaining a licence to drive a motor vehicle. In this case, having regard K
to the circumstances under which these offences were committed, the
L L
appropriate sentencing starting point would be 6 months and after affording
M him the one-third sentencing discount, defendant is sentenced to 4 months’ M
imprisonment for each of these two charges.
N N
O 14. For the 14th charge, this is the first time the defendant has O
committed this offence. On conviction of this offence, defendant is liable
P P
to a fine at level 2. In this case, defendant is fined $200 and in default of
Q payment, he is sentenced to 1-day imprisonment. Q
R R
15. Now coming to the period of disqualification, in the Yu Chi
S Chiu case, the Court of Appeal said, “A disqualification order is forward- S
looking and preventative rather than punitive.” And further, in paragraph
T T
U U
V V
-7-
A A
B B
36 of the judgment in the case of HKSAR v Yeung Chi Wa CACC 224/2017,
C it reads:- C
D D
“In the judgment of this court in the Secretary for Justice v Hung
Ling Kwok, to which the judge’s attention was drawn in the
E course of mitigation, the principle that an order for E
disqualification was “forward-looking and preventive” was
endorsed. Regard is to be had to the fact that part of the period
F of disqualification would be served while the applicant was in F
custody. In that case the applicant had been sentenced to 3 years
G and 4 months’ imprisonment and disqualified from driving for G
3 years. In the result, the court increased the period of
disqualification to 6 years.”
H H
16. Later, in latter half paragraph 37 of the judgment, the court
I I
said that:-
J J
“…in determining the appropriate balance between the
K competing consideration of the safety of the public and the risk K
that someone obsessed by driving might be tempted to drive
L illegally, this Court said “…the facts show that though the L
appellant had persistently committed the offence of driving a
vehicle without a licence, he had never been convicted of
M “dangerous driving” or “careless driving”.” M
N N
17. In section 69 of the Road Traffic Ordinance, subparagraph
O (1)(c), it says:- O
P P
“Without prejudice to any other provision relating to the penalty
that may be, or is required to be, imposed for an offence, a court
Q or magistrate before which a person is convicted of the following Q
offence may order that he be disqualified for such period as the
court or magistrate thinks fit.”
R R
S
And subparagraph (c) is stealing a motor vehicle, and S
subsection (2)(b) of the same section says:-
T T
U U
V V
-8-
A A
B “A disqualification imposed in respect of any other offence B
specified in subsection (1) shall be a disqualification from
C holding or obtaining any driving licence.” C
D 18. For convictions of the11th charge and the 13th charge, the D
court has jurisdiction to disqualify a defendant for not more than 3 years
E E
but that restriction does not apply to section 69 of the Road Traffic
F Ordinance. F
G G
19. In the case of Yu Chi Chiu CACC 198/2015, in paragraph 26
H of the judgment, it reads:- H
I I
“This court considers that a shorter disqualification order may
perhaps remind the appellant to take the driving licence test as
J J
soon as possible. This is yet another signal that this court gives
him (the appellant has on a few occasions been disqualified from
K driving). If the appellant really comes to senses, the road users K
will have greater protection in the future because at least the
appellant will not be driving a vehicle without third-party
L insurance. If the appellant really comes to his senses, he will not L
risk driving a vehicle or even driving a stolen vehicle whilst
M being disqualified.” M
N In that case, the Court of Appeal reduced the disqualification N
order from 6 years to 4 years.
O O
P 20. In the case here, having regard to the casual manner that the P
defendant has chosen to commit the offences and on the other hand there
Q Q
is no evidence that he had been driving carelessly or dangerously, I find
R the appropriate period of disqualification, the defendant from holding R
and/or obtaining driving licence of any kind to be 4 years for each of the
S S
1st charge to the 9th charge, and 2 years of disqualification period for each
T of the 11th and the 13th charge, and I so order. These periods of T
disqualification shall run concurrently to each other.
U U
V V
-9-
A A
B B
C 21. Considering the criminality and the culpability of the C
defendant in the present case and having regard to the totality principle, I
D D
find that the appropriate and just overall sentence on his guilty plea would
E be an overall sentence of 3 years. E
F F
22. Nature of offences for the 10th charge, 11th charge and 12th
G and 13th charges are different in nature to those in the 1st to 9th charges. G
It is clear also that the commission of the 10th and the 12th offence
H H
necessitate and/or necessarily entails commission of the 11th and the 13th
I offence. Accordingly, the sentence for the 10th, 11th, 12th and 13th I
offences would be concurrent to each other.
J J
K 23. As for the sentences in the nine theft charges, I follow the K
approach by Stock VP (as he then was) in the case of Ngai Yiu Ching,
L L
CACC 107 of 2011 referred to in paragraph 81 of the judgement in HKSAR
M v Cheng Chi Wai CACC 94 of 2011. M
N N
24. In the Ngai Yiu Ching case, Stock VP explained the role of the
O
totality principle as follows:- O
P “The importance of the totality principle cannot be overstated. P
It is there to ensure not only fairness to the offender, in the sense
Q that he is not punished twice for the same offence and, further, Q
that the sentence is not an unduly crushing punishment, but it is
also a tool by which to ensure that the overall effect of the
R sentences is sufficient, having regard to the usual principles of R
deterrence, rehabilitation and denunciation.”
S S
T T
U U
V V
- 10 -
A A
B B
25. Paragraph 82 of the same judgment, reads:-
C C
“Here there can be no doubt that each offence represents a
D different episode of criminal activity and each offence adds to D
the overall culpability of the respondent. Not to increase his
sentence to reflect this additional culpability would allow him to
E escape punishment for his crimes. We are of the view that a E
further 1-year imprisonment will provide a sentence which is
“sufficient having regard to the usual principles of deterrence,
F F
rehabilitation and denunciation” but which will not be unfair to,
or crushing on, the respondent. It will be both a just and a fair
G sentence.” G
H 26. I therefore order that 2 years and 1 month of sentence of the H
8th charge shall run concurrent to the sentence in the 9th charge. 1 month
I I
shall run consecutive to the sentence in the 9th charge. Sentence for the
J 8th and 9th charge is therefore 2 years and 3 months. J
K K
27. Similarly, 2 years and 1 month sentence for 7th charge shall
L L
run concurrent to the sentence for the 8th and 9th charge and 1 month of
M
the sentence of the 7th charge shall run consecutive to the sentence in the M
8th and 9th charge, making the total sentence for the 7th, 8th and
N N
9th charge to be 2 years and 4 months.
O O
28. And again 2 years and 1 month of the sentence for the
P P
6th charge shall run concurrent to the sentence for 7th, 8th and 9th charge.
Q 1 month of sentence for the 6th charge shall run consecutive to the sentence Q
for the 7th, 8th and 9th charge, making total sentence for the 6th to 9th
R R
charge to be 2 years and 5 months.
S S
29. Again 2 years and 1 month for sentence for the 5th charge
T T
shall run concurrent to the sentence for the 6th, 7th, 8th and 9th charge. 1
U U
V V
- 11 -
A A
B B
month of the sentence in the 5th charge shall run consecutive to the
C sentence in the 6th to 9th charge, making total sentence for the 5th to C
9th charge to be 2 years and 6 months.
D D
E 30. Again 2 years and 1 month of sentence for the 4th charge shall E
run concurrent to the sentence for the 5th, 6th, 7th and the 8th and
F F
9th charge, and 1 month of the sentence for the 4th charge shall run
G consecutive to the sentences in the 5th to 9th charge, making a total G
sentence for the 4th to 9th charges to be 2 years and 7 months.
H H
I 31. Again 23 months and 20 days sentence for the 3rd charge shall I
run concurrent to the sentence for the 4th to 9th charge, and 1 month of the
J J
sentence in the 3rd charge shall run consecutive to the sentence in the 4th
K to 9th charge, making a total sentence for the 3rd to 9th charge to be 2 years K
and 8 months.
L L
M 32. Again 23 months and 20 days of sentence for the 2nd charge M
shall run concurrent to the sentence for the 3rd to 9th charge, and 1 month
N N
of the sentence in the 2nd charge shall run consecutive to the sentence in
O the 3rd to 9th charge, making a total sentence for the 2nd to 9th charge to O
be 2 years and 9 months.
P P
Q 33. And for the sentence in the 1st charge, 23 months and 20 days Q
of sentence of the 1st charge would be concurrent to the sentences in the
R R
2nd to 9th charge, 1 month of which would be consecutive to the sentence
S in the 2nd to 9th charge, making the total sentence for the 1st to 9th charge S
to be 2 years and 10 months.
T T
U U
V V
- 12 -
A A
B B
C 34. As I have said earlier, the sentences for the 10th, 11th, 12th C
and 13th charge will run concurrent to each other. Although the nature of
D D
these offences are different from the nature of offences from the 1st to the
E 9th charge and in principle, the sentences for these two sets of charges E
should be consecutive but having regard to the totality principle, I would
F F
order that 2 months of the sentence for the 10th to 13th charge shall run
G concurrent to the sentence for the 1st to 9th charge. The rest of the sentence G
for 10th, 11th, 12th and 13th charge shall run consecutive to the 1st to
H H
9th charges’ sentence, making a total overall sentence for the 1st to 13th
I charge to be a total of 3 years. I
J J
35. I have already ordered that there be a fine for the 14th charge
K and, in default, 1 day of imprisonment. K
L 36. I also order that the defendant shall pay the car owner in the L
4th charge, Luk King Leung, the owner of PX4825 who has not yet
M M
recovered his car, criminal compensation in the sum of $9,500. I
N N
understand the defendant has conceded that the cost or the street value of
O
that vehicle is actually $10,000. O
P P
37. But since Mr Luk is only asking for $9,500, I would order
Q accordingly. Q
R R
S S
T T
( K Lo )
District Judge
U U
V V
A A
B B
DCCC 1050 & 1054/2017 (Consolidated)
C [2018] HKDC 573 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NOS 1050 & 1054 OF 2017
F F
G ---------------------------- G
HKSAR
H H
v
I CHOW HEI CHOY I
----------------------------
J J
K Before: HH Judge K Lo K
Date: 28 March 2018
L L
Present: Ms Lam Cho Yi Jojo, Public Prosecutor of the Department of
M Justice, for HKSAR M
Mr Wong Shun Yin Terry, instructed by C K Mok & Co,
N N
assigned by the Director of Legal Aid, for the defendant
O Offence: [1] to [9] Theft (盜竊罪) O
P
[10] & [12] Driving without a valid driving licence (駕駛時 P
無有效駕駛執照)
Q Q
[11] & [13] Using a motor vehicle without third party
R insurance (沒有第三者保險而使用汽車) R
[14] Failure to produce proof of identity on demand (未能在
S S
規定下出示身分證明文件)
T T
U U
V V
-2-
A A
B B
--------------------------------------
C REASONS FOR SENTENCE C
--------------------------------------
D D
E 1. The defendant faced nine charges of theft, contrary to E
section 9 of the Theft Ordinance, Cap 210 (1st charge to the 9th charge),
F F
and two charges of driving without a valid driving licence, contrary to
G section 42(1) and (4) of the Road Traffic Ordinance, Cap 374 (10th charge G
and 12th charge), two charges of using a motor vehicle without third party
H H
insurance, contrary to section 4(1) and 4(2)(a) of the Motor Vehicles
I Insurance (Third Party Risks) Ordinance, Cap 272 (11th charge and 13th I
charge), and one charge of failure to produce proof of identity on demand,
J J
contrary to section 17C(3) of the Immigration Ordinance, Cap 115.
K K
Summary of Facts
L L
M 2. According to the agreed Summary of Facts, the defendant M
had:-
N N
O (a) between 21 April 2017 and 23 April 2017 stole O
motorcycle MM9789 (1st charge); and
P P
Q (b) between 12 May 2017 and 13 May 2017 stole Q
motorcycle HR832 (2nd charge);
R R
S (c) on or about 15 May 2017 stole motorcycle SJ1248 S
(3rd charge);
T T
U U
V V
-3-
A A
B B
(d) between 17 May 2017 and 18 May 2017 stole
C motorcycle PX4825 (4th charge); and C
D D
(e) between 17 May 2017 and 19 May 2017 stole
E motorcycle LF6255 (5th charge); E
F F
(f) between 7 July 2017 and 8 July 2017 stole motorcycle
G HL4961 (6th charge); G
H H
(g) between 13 July 2017 and 14 July 2017 stole
I motorcycle SU1514 (7th charge); I
J J
(h) between 21 July 2017 and 25 July 2017 stole
K motorcycle MM6123 (8th charge); and K
L L
(i) between 26 July 2017 and 1 August 2017 stole
M motorcycle UR2603 (9th charge) from their respective M
owners.
N N
O Save for PX4825 and UR2603, all motorcycles stolen were O
subsequently recovered.
P P
Q 3. The defendant also admitted driving motorcycle SJ1248 and Q
UR2603 without a valid driving licence, being the 10th charge and the
R R
th
12 charge respectively. He also drove these motorcycles without third-
S party insurance, being the subject matter of 11th charge and the 13th charge S
respectively.
T T
U U
V V
-4-
A A
B B
Records
C C
4. It is agreed that defendant was released from prison on
D D
11 March 2017 after being sentenced to 31 months of imprisonment for
E convictions of six charges of theft of vehicle. E
F F
Mitigation
G G
5. Mr Wong for the defendant submitted to this court that
H H
defendant committed the present offences out of his craving for driving
I motorcycles. He said the defendant had promised to obtain a driving I
licence upon his release from prison this time and he would work and save
J J
money to buy himself a motorcycle instead of continuing stealing
K motorcycles from others. He also asked this court to give defendant the K
sentencing discount on his guilty plea.
L L
M Sentence M
N N
6. In this case, the defendant committed the first offence only
O two months after he was released from prison after serving 31 months’ O
imprisonment for similar convictions, theft from vehicles. It is considered
P P
by Mr Wong for the defence that 3 years is the appropriate starting point
Q for theft from vehicles, putting aside any aggravating factors. Such starting Q
point for sentence has been approved by the Court of Appeal in the case of
R R
HKSAR v Yu Chi Chiu [2017] 1 HKLR 400.
S S
7. Here, however, the defendant is clearly a persistent offender
T T
so far as thefts of vehicle are concerned which is an aggravating feature in
U U
V V
-5-
A A
B B
sentencing in our present case. I will enhance the starting point by
C 1 month. C
D 8. The appropriate starting point in my view for the 1st charge is D
3 years and 1 month, and on his guilty plea, he is entitled to full one-third
E E
sentencing discount. He is therefore sentenced on this charge to 2 years
F and 20 days’ imprisonment. F
G G
9. Similarly, for 2nd charge and 3rd charge, he is sentenced to
H 2 years and 20 days for each of the 2nd charge and 3rd charge. H
I I
10. Coming to the sentence for the 4th charge, the defendant
J committed the present offence two to three days after he was being arrested J
and put on bail in respect of the 3rd charge. This is clearly another
K K
aggravating feature in sentencing for this offence and the subsequent
L offences. The defendant had a total disregard of the law in Hong Kong. I L
would enhance the sentence of 3 years and 1 month by another 2 months.
M M
The sentencing starting point for the offence is therefore 3 years and 3
N N
months. After giving the defendant the sentencing discount on his guilty
O
plea, he is sentenced to 2 years and 2 months for this offence. O
P P
11. And similarly, for the sentence for the 5th charge, the
Q 6th charge, the 7th charge, the 8th charge and the 9th charge, the defendant Q
is by reason as aforesaid, after his guilty plea sentenced to 2 years and 2
R R
months for each of these offences.
S S
12. For the 10th and the 12th charge, defendant has a similar
T T
conviction on 20 April 2000 when he was sentenced to 6 months’
U U
V V
-6-
A A
B B
imprisonment. The maximum penalty for this offence for the second and
C subsequent conviction is a fine of $10,000 and 6 months’ imprisonment. C
The defendant, well knowing the requirements of the law and the risks to
D D
other road users whilst he is on the road, casually commits the offence for
E his own personal pleasure. The appropriate sentencing starting point is E
3 months’ imprisonment and after giving him one-third sentencing
F F
discount, defendant is sentenced to 2 months’ imprisonment for each of the
G 10th charge and the 12th charge. G
H H
13. For the 11th and the 13th charge, defendant has similar
I conviction on 20 April 2000 when he was sentenced to 6 months’ I
imprisonment. The maximum penalty for this offence is a fine of $10,000
J J
and 12 months’ imprisonment coupled with a disqualification from holding
K or obtaining a licence to drive a motor vehicle. In this case, having regard K
to the circumstances under which these offences were committed, the
L L
appropriate sentencing starting point would be 6 months and after affording
M him the one-third sentencing discount, defendant is sentenced to 4 months’ M
imprisonment for each of these two charges.
N N
O 14. For the 14th charge, this is the first time the defendant has O
committed this offence. On conviction of this offence, defendant is liable
P P
to a fine at level 2. In this case, defendant is fined $200 and in default of
Q payment, he is sentenced to 1-day imprisonment. Q
R R
15. Now coming to the period of disqualification, in the Yu Chi
S Chiu case, the Court of Appeal said, “A disqualification order is forward- S
looking and preventative rather than punitive.” And further, in paragraph
T T
U U
V V
-7-
A A
B B
36 of the judgment in the case of HKSAR v Yeung Chi Wa CACC 224/2017,
C it reads:- C
D D
“In the judgment of this court in the Secretary for Justice v Hung
Ling Kwok, to which the judge’s attention was drawn in the
E course of mitigation, the principle that an order for E
disqualification was “forward-looking and preventive” was
endorsed. Regard is to be had to the fact that part of the period
F of disqualification would be served while the applicant was in F
custody. In that case the applicant had been sentenced to 3 years
G and 4 months’ imprisonment and disqualified from driving for G
3 years. In the result, the court increased the period of
disqualification to 6 years.”
H H
16. Later, in latter half paragraph 37 of the judgment, the court
I I
said that:-
J J
“…in determining the appropriate balance between the
K competing consideration of the safety of the public and the risk K
that someone obsessed by driving might be tempted to drive
L illegally, this Court said “…the facts show that though the L
appellant had persistently committed the offence of driving a
vehicle without a licence, he had never been convicted of
M “dangerous driving” or “careless driving”.” M
N N
17. In section 69 of the Road Traffic Ordinance, subparagraph
O (1)(c), it says:- O
P P
“Without prejudice to any other provision relating to the penalty
that may be, or is required to be, imposed for an offence, a court
Q or magistrate before which a person is convicted of the following Q
offence may order that he be disqualified for such period as the
court or magistrate thinks fit.”
R R
S
And subparagraph (c) is stealing a motor vehicle, and S
subsection (2)(b) of the same section says:-
T T
U U
V V
-8-
A A
B “A disqualification imposed in respect of any other offence B
specified in subsection (1) shall be a disqualification from
C holding or obtaining any driving licence.” C
D 18. For convictions of the11th charge and the 13th charge, the D
court has jurisdiction to disqualify a defendant for not more than 3 years
E E
but that restriction does not apply to section 69 of the Road Traffic
F Ordinance. F
G G
19. In the case of Yu Chi Chiu CACC 198/2015, in paragraph 26
H of the judgment, it reads:- H
I I
“This court considers that a shorter disqualification order may
perhaps remind the appellant to take the driving licence test as
J J
soon as possible. This is yet another signal that this court gives
him (the appellant has on a few occasions been disqualified from
K driving). If the appellant really comes to senses, the road users K
will have greater protection in the future because at least the
appellant will not be driving a vehicle without third-party
L insurance. If the appellant really comes to his senses, he will not L
risk driving a vehicle or even driving a stolen vehicle whilst
M being disqualified.” M
N In that case, the Court of Appeal reduced the disqualification N
order from 6 years to 4 years.
O O
P 20. In the case here, having regard to the casual manner that the P
defendant has chosen to commit the offences and on the other hand there
Q Q
is no evidence that he had been driving carelessly or dangerously, I find
R the appropriate period of disqualification, the defendant from holding R
and/or obtaining driving licence of any kind to be 4 years for each of the
S S
1st charge to the 9th charge, and 2 years of disqualification period for each
T of the 11th and the 13th charge, and I so order. These periods of T
disqualification shall run concurrently to each other.
U U
V V
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A A
B B
C 21. Considering the criminality and the culpability of the C
defendant in the present case and having regard to the totality principle, I
D D
find that the appropriate and just overall sentence on his guilty plea would
E be an overall sentence of 3 years. E
F F
22. Nature of offences for the 10th charge, 11th charge and 12th
G and 13th charges are different in nature to those in the 1st to 9th charges. G
It is clear also that the commission of the 10th and the 12th offence
H H
necessitate and/or necessarily entails commission of the 11th and the 13th
I offence. Accordingly, the sentence for the 10th, 11th, 12th and 13th I
offences would be concurrent to each other.
J J
K 23. As for the sentences in the nine theft charges, I follow the K
approach by Stock VP (as he then was) in the case of Ngai Yiu Ching,
L L
CACC 107 of 2011 referred to in paragraph 81 of the judgement in HKSAR
M v Cheng Chi Wai CACC 94 of 2011. M
N N
24. In the Ngai Yiu Ching case, Stock VP explained the role of the
O
totality principle as follows:- O
P “The importance of the totality principle cannot be overstated. P
It is there to ensure not only fairness to the offender, in the sense
Q that he is not punished twice for the same offence and, further, Q
that the sentence is not an unduly crushing punishment, but it is
also a tool by which to ensure that the overall effect of the
R sentences is sufficient, having regard to the usual principles of R
deterrence, rehabilitation and denunciation.”
S S
T T
U U
V V
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A A
B B
25. Paragraph 82 of the same judgment, reads:-
C C
“Here there can be no doubt that each offence represents a
D different episode of criminal activity and each offence adds to D
the overall culpability of the respondent. Not to increase his
sentence to reflect this additional culpability would allow him to
E escape punishment for his crimes. We are of the view that a E
further 1-year imprisonment will provide a sentence which is
“sufficient having regard to the usual principles of deterrence,
F F
rehabilitation and denunciation” but which will not be unfair to,
or crushing on, the respondent. It will be both a just and a fair
G sentence.” G
H 26. I therefore order that 2 years and 1 month of sentence of the H
8th charge shall run concurrent to the sentence in the 9th charge. 1 month
I I
shall run consecutive to the sentence in the 9th charge. Sentence for the
J 8th and 9th charge is therefore 2 years and 3 months. J
K K
27. Similarly, 2 years and 1 month sentence for 7th charge shall
L L
run concurrent to the sentence for the 8th and 9th charge and 1 month of
M
the sentence of the 7th charge shall run consecutive to the sentence in the M
8th and 9th charge, making the total sentence for the 7th, 8th and
N N
9th charge to be 2 years and 4 months.
O O
28. And again 2 years and 1 month of the sentence for the
P P
6th charge shall run concurrent to the sentence for 7th, 8th and 9th charge.
Q 1 month of sentence for the 6th charge shall run consecutive to the sentence Q
for the 7th, 8th and 9th charge, making total sentence for the 6th to 9th
R R
charge to be 2 years and 5 months.
S S
29. Again 2 years and 1 month for sentence for the 5th charge
T T
shall run concurrent to the sentence for the 6th, 7th, 8th and 9th charge. 1
U U
V V
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A A
B B
month of the sentence in the 5th charge shall run consecutive to the
C sentence in the 6th to 9th charge, making total sentence for the 5th to C
9th charge to be 2 years and 6 months.
D D
E 30. Again 2 years and 1 month of sentence for the 4th charge shall E
run concurrent to the sentence for the 5th, 6th, 7th and the 8th and
F F
9th charge, and 1 month of the sentence for the 4th charge shall run
G consecutive to the sentences in the 5th to 9th charge, making a total G
sentence for the 4th to 9th charges to be 2 years and 7 months.
H H
I 31. Again 23 months and 20 days sentence for the 3rd charge shall I
run concurrent to the sentence for the 4th to 9th charge, and 1 month of the
J J
sentence in the 3rd charge shall run consecutive to the sentence in the 4th
K to 9th charge, making a total sentence for the 3rd to 9th charge to be 2 years K
and 8 months.
L L
M 32. Again 23 months and 20 days of sentence for the 2nd charge M
shall run concurrent to the sentence for the 3rd to 9th charge, and 1 month
N N
of the sentence in the 2nd charge shall run consecutive to the sentence in
O the 3rd to 9th charge, making a total sentence for the 2nd to 9th charge to O
be 2 years and 9 months.
P P
Q 33. And for the sentence in the 1st charge, 23 months and 20 days Q
of sentence of the 1st charge would be concurrent to the sentences in the
R R
2nd to 9th charge, 1 month of which would be consecutive to the sentence
S in the 2nd to 9th charge, making the total sentence for the 1st to 9th charge S
to be 2 years and 10 months.
T T
U U
V V
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A A
B B
C 34. As I have said earlier, the sentences for the 10th, 11th, 12th C
and 13th charge will run concurrent to each other. Although the nature of
D D
these offences are different from the nature of offences from the 1st to the
E 9th charge and in principle, the sentences for these two sets of charges E
should be consecutive but having regard to the totality principle, I would
F F
order that 2 months of the sentence for the 10th to 13th charge shall run
G concurrent to the sentence for the 1st to 9th charge. The rest of the sentence G
for 10th, 11th, 12th and 13th charge shall run consecutive to the 1st to
H H
9th charges’ sentence, making a total overall sentence for the 1st to 13th
I charge to be a total of 3 years. I
J J
35. I have already ordered that there be a fine for the 14th charge
K and, in default, 1 day of imprisonment. K
L 36. I also order that the defendant shall pay the car owner in the L
4th charge, Luk King Leung, the owner of PX4825 who has not yet
M M
recovered his car, criminal compensation in the sum of $9,500. I
N N
understand the defendant has conceded that the cost or the street value of
O
that vehicle is actually $10,000. O
P P
37. But since Mr Luk is only asking for $9,500, I would order
Q accordingly. Q
R R
S S
T T
( K Lo )
District Judge
U U
V V