HKSAR v. CHENG HO MAN, TELLY

DCCC 140/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 140 OF 2015

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HKSAR
v.
CHENG Ho-man, Telly

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Before: HH Judge E. Yip

Date: 30th June 2015 at 11:42 am

Present: Mr Simon TSO, Senior Public Prosecutor, of the Department of Justice, for HKSAR
Mr CHEUNG Chung Lai, Eric of M/s Chong & Yen assigned by DLA for Defendant

Offence: [1] Theft (盜竊罪)
[2] Forgery of documents (偽造文件)
[3] Using a motor vehicle without third party insurance (沒有第三者保險而使用汽車)

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Reasons for Sentence

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Charges

1. The Defendant pleads guilty to 3 charges as follows:

(1) Theft of a motor vehicle (1st Charge);

(2) Forgery of documents, by way of using false registration marks on a motor vehicle with intent to deceive (2nd Charge);

(3) Using a motor vehicle without third party insurance (3rd Charge).

Facts

2. In the evening on 6 December 2014, PW1 parked a Toyota 7-seater private car with registration number cum marks “RW 3845” (“the Car”) on Castle Peak Road – Tam Mi, Yuen Long, New Territories (“the Location”). The Car hadbeen purchased by his company at $460,000 as a second-hand car in January 2013. On 8 December 2014, he returned to the Locationbut found the car missing. He reported the loss to the police.

3. In the evening on 8 December 2014, the Defendant was arrested by the police when parking the Car into a Garage in Ta Kwu Ling, NewTerritories. Instead of “RW 3845”, the Car displayed a pair of registration marks “HW 2131”. A window of the Car was smashed. The ignition switch, the middle seats, and the HiFi system were displaced.

4. In the subsequent police enquiries, he made admissions as follows:

(1) The Car was stolen by him;

(2) He used a stone to smash the window of the Car at the Location;

(3) He replaced the original ignition switch with an electronic device which could operate the Car with a control key, both of whichhe had bought in advance in the Mainland at about RMB$500;

(4) He used the control key to operate the Car;

(5) He discarded the original ignition switch;

(6) He removed the HiFi system with a view to installing it onto his own car but discarded it upon seeing that it would not fit in;

(7) He removed the 2 middle seats and placed them at home;

(8) He purchased the pair of registration marks “HW 2131” to use on the Car from a car accessories shop because the original registrationmarks could be easily recognized;

(9) He discarded the original registration marks.

5. The police found the middle seats in his home. The original ignition key could no longer operate the Car.

6. The third party insurance of the Car would not cover an unauthorized driver. The Defendant was driving the Car without third partyinsurance in force.

Mitigation

7. He is 37 years of age, of F. 4 education level. His wife is a Mainlander who comes to Hong Kong from time to time on a two-waypermit. Before arrest, he worked both as a heavy goods vehicle driver for a monthly salary of $10,000 and an office assistant fora monthly salary of $6,000. He has 2 previous records not similar to any of the present case.

8. His solicitor, Mr. Cheung, informs me that the Defendant stole the Car because he liked the 2 middle seats, which he dismantledfrom the Car to fetch home as furniture. With the electronic device purchased in the Mainland, he was able to deactivate the originalalarm system at the Location. He then set up his own ignition system and alarm system before he drove home to dismantle the 2 middleseats.

9. I am given to understand that the Car was of the model Vellfire, a luxury model favoured by affluent owners.

Sentencing considerations

10. There are no sentencing guidelines for the 3 charges in question. A sentence of 3 years has often been adopted as the startingpoint for the opportunistic handling of a stolen car (HKSAR v Cheng Chi Wai [2012] 4 HKLRD 360). A starting point of 3 years for the theft of 2 cars (one Lexus and the other one Daihatsu Applause) in quick succession was saidto be on the low side (The Queen v Tang Hing Wong CACC 476/1994).

Sentencing the Defendant

11. There was prior planning and the use of a special device to deactivate the original alarm system and the ignition switch as wellas to set up a new ignition system and alarm system. The original key could no longer operate the Car. There was also the lossof the HiFi system and the damage to the window. The owner would have to bear the loss and damage whilst the 2 middle seats canbe reinstated to the Car. There is no evidence of any syndication involved. There was, however, the use of false registration marksto conceal the fact of the Car being stolen property. As an unauthorized driver, he had necessarily driven the Car without thirdparty insurance. I take a starting point of 3 years for the 1st Charge. One-third off for the guilty plea, the sentence is 2 years.

12. I take a starting point of 3 months for the 2nd Charge. One-third off for the guilty plea, the sentence is 2 months. Besides, I order disqualification of 12 months to commencetoday for all classes of vehicles.

13. I take a starting point of 3 months for the 3rd Charge. One-third off for the guilty plea, the sentence is 2 months.

14. As all 3 charges share the same facts, the sentences shall be concurrent.

(E. Yip)
District Judge