A A
B B
DCCC 377/2020
C [2020] HKDC 687 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 377 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I MAK Mun-fai I
------------------------------
J J
K Before: HH Judge Sham K
Date: 17 August 2020
L L
Present: Ms Choice Choi, Counsel on fiat, for HKSAR
M Ms Judy Ma instructed by Messrs. Kwok Ng & Chan assigned M
by the Director of Legal Aid for the defendant.
N N
Offence: [1][4] Theft (盜竊罪)
O O
[2][5] Driving without a valid driving licence (駕駛時無有效
P 駕駛執照) P
[3][6] Using a motor vehicle without third party insurance (沒
Q Q
有第三者保險而使用汽車)
R R
[7] Using marking on a vehicle with intent to deceive (意圖
S 欺詐而在一輛汽車上使用標記) S
[8] Using vehicle licence on a vehicle with intent to deceive
T T
(意圖欺詐而在一輛汽車上使用標記)
U U
V V
-2-
A A
B B
[9] Possession of apparatuses fit and intended for the
C inhalation of a dangerous drug (管有適合於及擬用作吸服危 C
險藥物的器具)
D D
[10] Failure to produce proof of identity on demand (未能在
E E
規定下出示身分證明文件)
F F
---------------------------------------
G G
REASONS FOR SENTENCE
H --------------------------------------- H
I I
1. The defendant, a 41-year-old man who has never ever had a
J driving licence, stole two motorcycles from the streets within a space of 7 J
weeks for his own use.
K K
L 2. On the second occasion, he even removed the vehicle licence L
and number plate of the first stolen bike (It is worth $41,800) before
M M
abandoning it and then put them onto the second stolen bike (It is worth
N $36,000). N
O O
3. On the first occasion (17 November 2019), its rider left his
P bike (the first stolen bike) at the junction between Shing Kai Road and P
Wang Kwong Road; a few days later, its owner returned to fetch it only to
Q Q
find it missing. A report was made to the police.
R R
4. About 7 weeks later on 4 January 2020, the owner parked his
S bike (the second stolen bike) outside at Hang King Shopping Arcade, Wing S
Fong Road, and by the time he returned on the following day, the bike was
T T
gone already. The owner then went to the police to report it.
U U
V V
-3-
A A
B B
5. A few days later on 9 January 2020, police discovered the
C C
second stolen bike on the pavement outside a hotel in Kawi Chung.
D Checking with the CCTV footage of the hotel, police found that the D
defendant was the guest of the hotel who had parked the bike there hours
E E
before.
F F
6. Following the CCTV lead, the police were able to find out
G G
where the defendant was staying at the hotel. Having obtained a search
H
warrant for his room, the police paid him a visit later in the day. H
I 7. When police got there, they found the defendant and some I
drug paraphernalia, i.e. a glass bottle and four glass tubes with a bulb open
J J
end in the room. Despite a subsequent more thorough search by a police
K dog unit, the police could not find any drugs in the room. When asked for K
his ID papers, the defendant could not produce any.
L L
8. He told the officers that the apparatus described in the
M M
preceding paragraph was for taking “ice”. Regarding the bikes, he made a
N N
full confession to the police that he took them away for his own use; before
O
abandoning the first bike in Yuen Long areas, he removed its vehicle O
licence and number plates and fixed them on the second bike.
P P
9. As is clear from his confession, the defendant, who had never
Q Q
held any driving licence, had been riding the bikes since they were stolen,
R so there are at least 3 charges associated with each of the theft of the bike R
–
S S
1)- theft of the bikes (charges 11 & 4);
T T
1
Contrary to section 9 of the Theft Ordinance, Cap. 210
U U
V V
-4-
A A
B B
2)- driving without a valid driving licence (charges 22 & 5);
C 3)- using a vehicle without third party insurance (charges 33 & 6). C
D D
10. As he had put on the second stolen bike vehicle licence and
E number plate of the first stolen bike – these acts are deceiving – that E
explained why he faced two more charges:
F F
G 1)- using marking on a vehicle with intent to deceive (charge 7 4); G
2)- using vehicle licence on a vehicle with intent to deceive (charge
H H
85).
I I
11. Additionally, he had no ID card on him and was found in
J J
possession of drug paraphernalia, he faced another two charges:
K K
1)- possession of apparatus fit and intended for inhalation of a
L L
dangerous drug (charge 9 6);
M 2)- failure to produce proof of identity (charge 107). M
N N
12. The defendant pleaded guilty before me to all 10 charges.
O O
13. Being no stranger to the court, the defendant has amassed 16
P P
prior convictions in the past 23 years – mainly to do with drugs and
Q dishonesty offences. His first conviction is theft from vehicle in 1997 for Q
R R
S 2
S
Contrary to section 42 (1) and (4) of the Road Traffic Ordinance, Cap.374
3
Contrary to section 4 (1) and (2)(a) of the Motor Vehicles (Third Party Risks) Ordinance, Cap.272
4
Contrary to section 111 (1)(a) of the Road Traffic Ordinance, Cap.374
T 5 T
Contrary to section 111 (1)(a) of the Road Traffic Ordinance, Cap.374
6
Contrary to section 36 (1) and (2) of the Dangerous Drugs Ordinance, Cap.134
7
Contrary to section 17C(3) of the Immigration Ordinance, Cap.115
U U
V V
-5-
A A
B B
which he was put on probation, while his last conviction is drug trafficking
C in 2016 for which he was sent to prison for 4 years. C
D 14. There is no traffic record for the defendant for he has never D
held a driving licence before.
E E
15. In mitigation, the court heard that the defendant was born in
F F
the Mainland and came to settle in Hong Kong in 1995; he is married with
G G
no children.
H H
16. He used to be a waiter at a Chinese restaurant earning about
I $15,000 a month but was sacked in May 2019 due to social disturbances, I
and thereafter he could only do part-time waiter with a salary of $500 a
J J
day, and at the time of arrest, he was out of job.
K K
17. In his letter to the court, the defendant expressed remorse for
L what he did and told the court that his wife, a diabetes patient, needed to L
go to hospital very often for insulin injection, he was worried sick about
M M
her doing all this on her own.
N N
18. Counsel for the defendant, Miss Ma, said that the defendant
O O
had learned how to drive a motorcycle; though without a licence, he was
P confident that he could handle a motorcycle on the road without problems. P
He used the first bike to go to work but when he stole the second bike, he
Q Q
was out of job and only used it to visit friends. He changed the vehicle
R licence and number plate of the second bike in order to avoid being caught. R
S 19. Defendant had been using ice for some time, Miss Ma S
continued, the apparatus found was used by him to take ice.
T T
U U
V V
-6-
A A
B B
20. Miss Ma submitted that there was no accident on the days
C when the defendant used the bikes, and the theft of a motorcycle is less C
serious and would attract a lower starting point than that of the theft of a
D D
motor vehicle. She cited the case of Yeung Chi Wa CACC 224/2017 in
E which a starting point of 3 years for the theft of a taxi was approved by the E
Court of Appeal.
F F
21. It is only fortunate that no accidents occurred as a result of the
G G
defendant riding a motorcycle on the road, I think it is a matter of time that
H will happen unless he is deterred from doing so. H
I I
22. Confident though he was, he was not qualified to ride a
J motorcycle without first passing a competent test; the law here is to protect J
the public at large – other road users. The consequences following an
K K
accident in defendant’s situation could be dire – the victim could be
L maimed or even killed with the likelihood of no compensation at all. The L
defendant’s behaviour is totally irresponsible.
M M
23. Given the facts of the case, for the theft of the motorcycle, I
N N
would take 30 months as the starting point; 3 weeks for driving without
O licence 8 ; 3 months for driving without insurance 9 ; 3 months for the O
deceiving offences involving the vehicle licence 10 and number plate; 6
P P
months for possession of drug paraphernalia. For the last charge of having
Q no proof of ID on him, I think a fine will suffice to dispose of the matter. Q
R R
S S
8
Such offence carries a maximum term of 3 months on first conviction
T 9 T
A maximum term of 12 months and mandatory disqualification for a period not less than 12 months
nor more than 3 years
10
Such offence carries a maximum term of 3 years
U U
V V
-7-
A A
B B
24. Insofar as mitigation is concerned, apart from his guilty pleas,
C there is not anything of substance. Discounting one-third for the timely C
pleas, the individual starting points are reduced as follows:
D D
Charge 1 – 20 months;
E E
Charge 2 – 2 weeks;
F Charge 3 – 2 months; F
Charge 4 – 20 months;
G G
Charge 5 – 2 weeks;
H Charge 6 – 2 months; H
Charge 7 – 2 months;
I I
Charge 8 – 2 months;
J Charge 9 – 4 months; J
Charge 10 – fine of $500
K K
L 25. Taking into account the totality principle, I order that the term L
of charge 1 be run consecutively to 6 months of charge 4, one month of
M M
charge 7, and 3 months of charge 9, the rest are concurrently. The total
N term is one of 30 months’ imprisonment. N
O O
26. There being no reasons for any further reduction in sentence,
P the defendant is therefore sentenced to 30 months’ imprisonment. P
Q 27. Regarding disqualification, the offence of driving without Q
insurance carries a mandatory disqualification unless there are special
R R
reasons for not doing so, while section 69 of the Road Traffic Ordinance
S gives the court the discretionary power to ban the offender from driving for S
the offence of stealing a motor vehicle.
T T
U U
V V
-8-
A A
B B
28. Miss Ma has not put forward any reasons not to disqualify her
C client, I order the defendant to be banned from driving (all classes of C
vehicle) for a period of 4 years for the theft of the motorcycle (charges 1 &
D D
4) and a period of 12 months for driving without insurance (charges 3 &
E 6). All periods are to run concurrently. The total ban is one of 4 years. E
F 29. The defendant is given 14 days to pay the fine; in default, he F
is to serve a term of 7 days instead which is to run consecutively to his
G G
existing term.
H H
( Sham )
I I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 377/2020
C [2020] HKDC 687 C
D D
IN THE DISTRICT COURT OF THE
E HONG KONG SPECIAL ADMINISTRATIVE REGION E
CRIMINAL CASE NO 377 OF 2020
F F
G ------------------------------ G
HKSAR
H H
v
I MAK Mun-fai I
------------------------------
J J
K Before: HH Judge Sham K
Date: 17 August 2020
L L
Present: Ms Choice Choi, Counsel on fiat, for HKSAR
M Ms Judy Ma instructed by Messrs. Kwok Ng & Chan assigned M
by the Director of Legal Aid for the defendant.
N N
Offence: [1][4] Theft (盜竊罪)
O O
[2][5] Driving without a valid driving licence (駕駛時無有效
P 駕駛執照) P
[3][6] Using a motor vehicle without third party insurance (沒
Q Q
有第三者保險而使用汽車)
R R
[7] Using marking on a vehicle with intent to deceive (意圖
S 欺詐而在一輛汽車上使用標記) S
[8] Using vehicle licence on a vehicle with intent to deceive
T T
(意圖欺詐而在一輛汽車上使用標記)
U U
V V
-2-
A A
B B
[9] Possession of apparatuses fit and intended for the
C inhalation of a dangerous drug (管有適合於及擬用作吸服危 C
險藥物的器具)
D D
[10] Failure to produce proof of identity on demand (未能在
E E
規定下出示身分證明文件)
F F
---------------------------------------
G G
REASONS FOR SENTENCE
H --------------------------------------- H
I I
1. The defendant, a 41-year-old man who has never ever had a
J driving licence, stole two motorcycles from the streets within a space of 7 J
weeks for his own use.
K K
L 2. On the second occasion, he even removed the vehicle licence L
and number plate of the first stolen bike (It is worth $41,800) before
M M
abandoning it and then put them onto the second stolen bike (It is worth
N $36,000). N
O O
3. On the first occasion (17 November 2019), its rider left his
P bike (the first stolen bike) at the junction between Shing Kai Road and P
Wang Kwong Road; a few days later, its owner returned to fetch it only to
Q Q
find it missing. A report was made to the police.
R R
4. About 7 weeks later on 4 January 2020, the owner parked his
S bike (the second stolen bike) outside at Hang King Shopping Arcade, Wing S
Fong Road, and by the time he returned on the following day, the bike was
T T
gone already. The owner then went to the police to report it.
U U
V V
-3-
A A
B B
5. A few days later on 9 January 2020, police discovered the
C C
second stolen bike on the pavement outside a hotel in Kawi Chung.
D Checking with the CCTV footage of the hotel, police found that the D
defendant was the guest of the hotel who had parked the bike there hours
E E
before.
F F
6. Following the CCTV lead, the police were able to find out
G G
where the defendant was staying at the hotel. Having obtained a search
H
warrant for his room, the police paid him a visit later in the day. H
I 7. When police got there, they found the defendant and some I
drug paraphernalia, i.e. a glass bottle and four glass tubes with a bulb open
J J
end in the room. Despite a subsequent more thorough search by a police
K dog unit, the police could not find any drugs in the room. When asked for K
his ID papers, the defendant could not produce any.
L L
8. He told the officers that the apparatus described in the
M M
preceding paragraph was for taking “ice”. Regarding the bikes, he made a
N N
full confession to the police that he took them away for his own use; before
O
abandoning the first bike in Yuen Long areas, he removed its vehicle O
licence and number plates and fixed them on the second bike.
P P
9. As is clear from his confession, the defendant, who had never
Q Q
held any driving licence, had been riding the bikes since they were stolen,
R so there are at least 3 charges associated with each of the theft of the bike R
–
S S
1)- theft of the bikes (charges 11 & 4);
T T
1
Contrary to section 9 of the Theft Ordinance, Cap. 210
U U
V V
-4-
A A
B B
2)- driving without a valid driving licence (charges 22 & 5);
C 3)- using a vehicle without third party insurance (charges 33 & 6). C
D D
10. As he had put on the second stolen bike vehicle licence and
E number plate of the first stolen bike – these acts are deceiving – that E
explained why he faced two more charges:
F F
G 1)- using marking on a vehicle with intent to deceive (charge 7 4); G
2)- using vehicle licence on a vehicle with intent to deceive (charge
H H
85).
I I
11. Additionally, he had no ID card on him and was found in
J J
possession of drug paraphernalia, he faced another two charges:
K K
1)- possession of apparatus fit and intended for inhalation of a
L L
dangerous drug (charge 9 6);
M 2)- failure to produce proof of identity (charge 107). M
N N
12. The defendant pleaded guilty before me to all 10 charges.
O O
13. Being no stranger to the court, the defendant has amassed 16
P P
prior convictions in the past 23 years – mainly to do with drugs and
Q dishonesty offences. His first conviction is theft from vehicle in 1997 for Q
R R
S 2
S
Contrary to section 42 (1) and (4) of the Road Traffic Ordinance, Cap.374
3
Contrary to section 4 (1) and (2)(a) of the Motor Vehicles (Third Party Risks) Ordinance, Cap.272
4
Contrary to section 111 (1)(a) of the Road Traffic Ordinance, Cap.374
T 5 T
Contrary to section 111 (1)(a) of the Road Traffic Ordinance, Cap.374
6
Contrary to section 36 (1) and (2) of the Dangerous Drugs Ordinance, Cap.134
7
Contrary to section 17C(3) of the Immigration Ordinance, Cap.115
U U
V V
-5-
A A
B B
which he was put on probation, while his last conviction is drug trafficking
C in 2016 for which he was sent to prison for 4 years. C
D 14. There is no traffic record for the defendant for he has never D
held a driving licence before.
E E
15. In mitigation, the court heard that the defendant was born in
F F
the Mainland and came to settle in Hong Kong in 1995; he is married with
G G
no children.
H H
16. He used to be a waiter at a Chinese restaurant earning about
I $15,000 a month but was sacked in May 2019 due to social disturbances, I
and thereafter he could only do part-time waiter with a salary of $500 a
J J
day, and at the time of arrest, he was out of job.
K K
17. In his letter to the court, the defendant expressed remorse for
L what he did and told the court that his wife, a diabetes patient, needed to L
go to hospital very often for insulin injection, he was worried sick about
M M
her doing all this on her own.
N N
18. Counsel for the defendant, Miss Ma, said that the defendant
O O
had learned how to drive a motorcycle; though without a licence, he was
P confident that he could handle a motorcycle on the road without problems. P
He used the first bike to go to work but when he stole the second bike, he
Q Q
was out of job and only used it to visit friends. He changed the vehicle
R licence and number plate of the second bike in order to avoid being caught. R
S 19. Defendant had been using ice for some time, Miss Ma S
continued, the apparatus found was used by him to take ice.
T T
U U
V V
-6-
A A
B B
20. Miss Ma submitted that there was no accident on the days
C when the defendant used the bikes, and the theft of a motorcycle is less C
serious and would attract a lower starting point than that of the theft of a
D D
motor vehicle. She cited the case of Yeung Chi Wa CACC 224/2017 in
E which a starting point of 3 years for the theft of a taxi was approved by the E
Court of Appeal.
F F
21. It is only fortunate that no accidents occurred as a result of the
G G
defendant riding a motorcycle on the road, I think it is a matter of time that
H will happen unless he is deterred from doing so. H
I I
22. Confident though he was, he was not qualified to ride a
J motorcycle without first passing a competent test; the law here is to protect J
the public at large – other road users. The consequences following an
K K
accident in defendant’s situation could be dire – the victim could be
L maimed or even killed with the likelihood of no compensation at all. The L
defendant’s behaviour is totally irresponsible.
M M
23. Given the facts of the case, for the theft of the motorcycle, I
N N
would take 30 months as the starting point; 3 weeks for driving without
O licence 8 ; 3 months for driving without insurance 9 ; 3 months for the O
deceiving offences involving the vehicle licence 10 and number plate; 6
P P
months for possession of drug paraphernalia. For the last charge of having
Q no proof of ID on him, I think a fine will suffice to dispose of the matter. Q
R R
S S
8
Such offence carries a maximum term of 3 months on first conviction
T 9 T
A maximum term of 12 months and mandatory disqualification for a period not less than 12 months
nor more than 3 years
10
Such offence carries a maximum term of 3 years
U U
V V
-7-
A A
B B
24. Insofar as mitigation is concerned, apart from his guilty pleas,
C there is not anything of substance. Discounting one-third for the timely C
pleas, the individual starting points are reduced as follows:
D D
Charge 1 – 20 months;
E E
Charge 2 – 2 weeks;
F Charge 3 – 2 months; F
Charge 4 – 20 months;
G G
Charge 5 – 2 weeks;
H Charge 6 – 2 months; H
Charge 7 – 2 months;
I I
Charge 8 – 2 months;
J Charge 9 – 4 months; J
Charge 10 – fine of $500
K K
L 25. Taking into account the totality principle, I order that the term L
of charge 1 be run consecutively to 6 months of charge 4, one month of
M M
charge 7, and 3 months of charge 9, the rest are concurrently. The total
N term is one of 30 months’ imprisonment. N
O O
26. There being no reasons for any further reduction in sentence,
P the defendant is therefore sentenced to 30 months’ imprisonment. P
Q 27. Regarding disqualification, the offence of driving without Q
insurance carries a mandatory disqualification unless there are special
R R
reasons for not doing so, while section 69 of the Road Traffic Ordinance
S gives the court the discretionary power to ban the offender from driving for S
the offence of stealing a motor vehicle.
T T
U U
V V
-8-
A A
B B
28. Miss Ma has not put forward any reasons not to disqualify her
C client, I order the defendant to be banned from driving (all classes of C
vehicle) for a period of 4 years for the theft of the motorcycle (charges 1 &
D D
4) and a period of 12 months for driving without insurance (charges 3 &
E 6). All periods are to run concurrently. The total ban is one of 4 years. E
F 29. The defendant is given 14 days to pay the fine; in default, he F
is to serve a term of 7 days instead which is to run consecutively to his
G G
existing term.
H H
( Sham )
I I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V