HKSAR v. WU KAM PUI

DCCC238/2010

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 238 OF 2010

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Reasons for Sentence

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1.  The defendant pleaded guilty to nine charges: Charge 1, theft of a vehicle; Charge 2, driving whilst disqualified under the Road Traffic (Driving Offence Points) Ordinance, Cap. 375; Charge 3, driving an unlicensed vehicle; Charge 4, using a motor vehicle without third party insurance; Charge 5, using a motor vehicle without displaying a valid vehicle licence; Charge 6, driving a motor vehicle without displaying a valid registration mark; Charge 7, driving in excess of speed limit; Charge 8, using a taxi on which the stamp or seal of the Commissioner the taxi metre has been broken; Charge 9, forgery. The facts admitted by the defendants can be summarised as follows.

Charge 7 - Speeding

2.  At 1641 hours, on 3 January 2010, when police officers were conducting anti-speeding operation at Chek Lap Kok South Road, airport bound, Lantau Island, a taxi, displaying registration no. KC7883, was detected to be travelling at a speed of 68 kilometres per hour. The speed limit was 50 kph. The taxi driven by the defendant, with three foreign passengers on board, was intercepted.

Charge 2 - Driving while disqualified

3.  It was then found out during inquiry that the defendant had been disqualified for 3 months as a result of a court order imposed under the Road Traffic (Driving-Offence Points) Ordinance on 27 October 2009. The defendant was therefore arrested for the offences of speeding, driving while disqualified, and without third party insurance.

Charge 1 - Theft

4.  Upon examination by a motor vehicle examiner it was found that the vehicle identification number and engine number, which were respectively stamped on the bulkhead panel and the engine block, in fact belonged to a taxi with registration number KD6800, which was owned by Madam Wong Ching, who entrusted the taxi to Chun Fung Motors Limited to manage the taxi. The taxi KD6800 was last seen by the nightshift driver when he parked it at the roadside outside Novotel Century Hong Kong Hotel at Wanchai after his shift at 0235 hours on 4 July 2008. The dayshift driver of the taxi was the defendant. At 0700 hours on the same day he reported that the taxi could not be located. A report of theft was made to the police.

Charge 3 and Charge 4 - Driving unlicensed vehicle and using a motor vehicle without third party insurance

5.  The vehicle licence KD6800 expired on 8 August 2008. On the day of arrest of the defendant the taxi was not covered by third party insurance. It is admitted that no third party insurance policy has ever been taken out by the defendant in respect of the stolen taxi.

Charges 5, 6 and 9 - Using and driving a motor vehicle without displaying valid vehicle licence and valid registration mark, and forgery

6.  Upon a search on the taxi a photocopy of a motor vehicle licence for KC7883 was displayed on the windscreen. Underneath it was another photocopy in respect of KC7883, but with the date of issue 30 June 2008, which is different from the one displayed on the top, and two photocopies of vehicle licence for JT6318. A pair of number plates for JT6318 and another pair of number plates for GV9003 were found at the boot of the taxi.

Charge 8 - Taxi metre with broken seal

7.  Prior to the theft, the taxi metre and receipt printer of KD6800 had been checked by a service company and confirmed to be accurate before a security label was attached to it. However, the seal attached to the taxi metre was found to be torn when it was examined by the motor vehicle examiner.

8.  Under caution the defendant admitted the offences. Police investigation confirmed that the defendant had hired taxis with registration numbers KC7883, GV9003 and JT6318.

9.  At 1310 hours on 31 October 2009, when Lo Chi-sing was driving GV9003 at Tung Chung MTR Station, he saw an upcoming taxi displaying the same number GV9003.

10.  The defendant is aged 51, married, with two children. He has a clear criminal record. He was previously an ambulance man, with a part-time job as a taxi driver. Because of his heavy gambling debts he retired in 2008 so as to keep his pension to pay off his debt. As the defendant felt very ashamed of his wrong he keeps no contact with his family, and only dwells in his taxi, which he stole, after he submitted his application for retirement.

11.  In his letter of mitigation the defendant expressed his remorse. In mitigation, Mr Cheung, solicitor for the defendant, told me that the defendant’s pension had been suspended since his arrest. The defendant was therefore unable to pay any financial penalty. He asked me to take into consideration the defendant’s full cooperation with the police and his plea of guilty and the principle of totality.

12.  While the defendant has a clear record for criminal offence, he has a bad record for traffic offences. He has three previous convictions for careless driving, one conviction for using a vehicle without insurance, and many fixed penalty offences for failing to comply with traffic signs, and speeding.

13.  Miss Chan for the prosecution has helpfully drawn to my attention a judgment of the Court of Appeal, HKSAR v Tsang Kwun Wing, CACC89/2004. The facts of that case are very similar to the present one.

14.  It is noted that the defendant committed quite a number of traffic offences after he stole the taxi in question. In my view, if the offences were committed by the defendant when he was driving a stolen taxi, it must be treated as an aggravating factor. Mr Cheung told me that after the defendant stole the taxi, he drove the stolen taxi and taxis lawfully hired interchangeably. When those traffic offences were committed he was driving a lawfully hired taxi. While I have doubt about it, in the absence of evidence to the contrary and with the evidence from the prosecution that the defendant did hire a few taxis in 2009, I find it difficult to reject the defendant’s claim.

Reasons for sentence

Charge 1

15.  There is no tariff for theft of a vehicle. Given the usual value of a taxi, and the great inconvenience caused to its owner, the offence must be treated as a serious one. In HKSAR v Tsang Kwun Wing, the case referred to me by the prosecution, the appeal against sentence was dismissed. A starting point of 3 years’ imprisonment was taken by the trial judge for the theft of a taxi. It is noted that the starting point was taken on the basis that concurrent sentences of 2 years' imprisonment were imposed in respect of the theft charge and four other charges of forgery of documents. Therefore the starting point of 3 years already took into account of the other four charges.

16.  In the present case I would treat Charge 1 as an offence separate and distinct from the remaining charges. In R v Chan Kwok Leung, CACC114/1995, the applicant pleaded guilty to one charge of attempted theft of a car and was found guilty of a charge of theft of another car. Yang CJ, delivering judgment of the Court of Appeal, allowed the appeal against sentence and reduced the totality of 5 years' imprisonment to 4 years. Having considered these two judgments, I consider that a proper starting point for Charge 1 should be 2½ years' imprisonment.

Charge 2

17.  Driving while disqualified has been treated by the courts as a serious offence because it is a blatant breach of court order. 3 months’ imprisonment has often been adopted as a starting point by the courts. (See HKSAR v Ng Suen Wai, HCMA375/2003 and HKSAR v Kwan Chung Wa, HCMA471/2005.) I will also use 3 months' imprisonment as the starting point in this charge.

Charge 3

18.  This is the defendant’s first conviction for this offence. Having considered the guilty plea, I will fine the defendant $1,000.

Charge 4

19.  This is a very serious offence, and the courts have always imposed an immediate custodial sentence. As Yeung J, as he then was, remarked in HKSAR v Wong Chi Ming, HCMA510/1999:

“Seriousness lies in the possibility that victims in traffic accidents may be left without any compensation.”

20.  I regard the present case as the most serious kind of this offence. The defendant had been driving the stolen taxi for hire for 1½ years without insurance. Being a professional taxi driver he must be aware of the importance of protection by insurance to his passengers. He simply turned a blind eye to it. The defendant’s act was also in breach of the trust reposed in him by his passengers. Given the number of passengers he would serve every day, the risk borne by his passengers, yet unknown to them, was a very great one. In Tsang Kwun Wing, the maximum starting point of 12 months’ imprisonment for using motor vehicle without third party insurance was confirmed by the Court of Appeal as an appropriate starting point. I regard the present case as more serious. The defendant had driven the stolen taxi for a longer time. Moreover, he was disqualified on 29 October 2009. Yet the disqualification order could not deter him from driving the stolen taxi. A deterrent sentence has to be imposed. I use the maximum starting point of 12 months’ imprisonment for this charge. The offence carries a penalty for mandatory disqualification. There exists no special reason not to make such an order. I order disqualification of the defendant from driving for 2 years.

Charge 5 and Charge 6

21.  Taking into consideration the guilty plea, I fine the defendant $500 for each of these two offences.

Charge 7

22.  Considering the defendant’s nine previous fixed penalty record for speeding as an aggravating factor and giving a reduction for the guilty plea, I fine the defendant $2,500.

Charge 8

23.  Giving credit to his guilty plea, I fine the defendant $1,500.

Charge 9

24.  Forged registration plates and vehicle licences were made to facilitate the defendant to drive a stolen taxi. The seriousness of this offence is that by masquerading a stolen car as the genuinely registered cars, the defendant might evade from civil and criminal liabilities and hence cause big troubles, if not liabilities, to the genuine owners. I will use 9 months as the starting point.

25.  In my judgment, the defendant is entirely an irresponsible driver who had demonstrated a total disregard of the interest of road users and its passengers. His long record of driving offences shows his poor attitude in driving. He has one previous similar record for using vehicle without insurance. In my view, he was a menace to road users.

26.  For reasons which I have stated, I treat the present case as more serious than the case referred to me by the prosecution, and hence a more severe sentence is called for. Despite that the defendant has a clear record for criminal offences, I do not think that there is any mitigating factor in this case to justify a reduction of sentence, except his plea of guilty for which a one-third discount will be given.

27.  Taking into account the total criminality of all the charges, I will take an overall starting point of 4 years and 3 months, and reduce it to 2 years and 10 months to reflect the defendant’s guilty plea and cooperation with the police.

28.  I therefore make the following order for sentence: Charge 1, 20 months’ imprisonment; Charge 2, 2 months’ imprisonment, to run consecutively to the sentence in Charge 1; Charge 3, fined $1,000; Charge 4, 8 months’ imprisonment, to run consecutively to the sentences in Charge 1 and Charge 2; Charge 5, fined $500; Charge 6, fined $500; Charge 7, fined $2,500; Charge 8, fined $1,500; Charge 9, 6 months’ imprisonment, of which 4 months to run consecutively to other sentences, and 2 months to run concurrently. The total term of imprisonment is 2 years and 10 months. And having considered the term of imprisonment and the defendant’s financial difficulty, I would allow the defendant 3 years’ time to pay the total fine of $6,000.

29.  The disqualification order I would repeat in respect of Charge 4: Disqualification for 2 years.