HKSAR v. WUN KAM PO

DCCC 154/2021

[2021] HKDC 1158

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 154 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant is convicted on his own plea for a count of “Theft” (“Charge 1”)  and another count of “Failing to surrender to custody without reasonable cause” (“Charge 2”).

The Facts (Charge 1)

2.  This case concerns the stealing of a taxi, being the property belonging to Shun On Motors Trading Limited (“Company”), a taxi rental company, the owner of which was a Mr Chau (PW1).

3.  On 16 October 2020, the defendant approached PW1 for renting a taxi for business. The defendant paid $1,000 deposit and rented the subject taxi (“S/Veh”)  specified in the Charge 1.

4.  On 29 October 2020, the defendant came to take the S/Veh and paid $310 to the manager of the Company as daily rent for the S/Veh.  However, the defendant did not return the S/Veh to the Company on the next day.

5.  On 31 October 2020, PW1 received a call from the defendant, who falsely claimed that he was arrested by the police and the S/Veh was seized by the police.  PW1 later discovered that those were lies and reported the case to the police on 2 November 2020.

6.  On 4 November 2020, the police retrieved the S/Veh in To Kwa Wan, Kowloon.

7.  On 6 November 2020, the defendant was arrested by the police when he happened to be involved in a traffic accident as the driver of another taxi.

8.  A record of interview was taken from the defendant in which he stated, inter alia, the followings:-

(a)  He started renting S/Veh from VTC on 16 October 2020 after signing a contract with them, and had been driving S/Veh for night shift work since then;

(b)  He was given the key to S/Veh after signing the contract, and he would keep the key;

(c)  On 29 October 2020, he rented S/Veh from VTC as usual, and he knew he was meant to return S/Veh to the vicinity of Pratas Street before 6am on the next day for the morning shift taxi driver to drive the vehicle;

(d)  He drove S/Veh to several places for business before reaching Kowloon City Pier when he decided to park S/Veh there instead of returning to VTC in order to avoid paying taxi rent;

(e)  He did not inform PW1 nor VTC as he was too scared to confront PW1;

(f)  He did not park S/Veh back to the vicinity of VTC because he wanted to avoid PW1 and the staff at VTC;

(g)  He lied to PW 1 about being arrested because he wanted to escape the responsibility of paying taxi rent.

The Facts (Charge 2)

9.  After the above, the defendant was charged, and as a result, he appeared in the magistracy on 9 November 2020.

10.  He was granted bail and was required to appear in court again on 30 November 2020.

11.  On 30 November 2020, the defendant failed to show up at the scheduled court hearing and a warrant of arrest was issued on the same day.

12.  On 11 December 2020, the defendant was intercepted by the police during a stop-and-search operation and his status was identified.  He was brought to court on 12 December 2020.  Since then, he was in jail custody.

13.  On 1 April 2021, the defendant was arrested for Charge 2.  Under caution, the defendant said he forgot to attend court on 30 November 2020.

Mitigation

14.  First of all, it is mentioned by the defence that the defendant has been having psychiatric symptoms and is currently on medication.  Having clarified in detail before the pleas were entered, it was confirmed that such conditions do not affect the ability to plead on the part of the defendant. More importantly, these conditions did not affect the defendant at the material times and the basis of the guilty plea has been fully understood by and is in accordance with the wish of the defendant.  All in all, the defendant’s medical conditions are only background and relevant to general mitigation.

15.  To the defendant’s benefit, he is obviously entitled to a 1/3 discount in this case.

16.  In the lengthy written mitigation, counsel for the defendant submitted, in gist, the followings:-

(a)  D is now 38 years of age;

(b)  D was a taxi driver on a causal basis;

(c)  D was in financial difficulty and out of desperation, D parked the S/Veh and went home without informing PW1 or his subordinates.

17.  The defence described:-

“16. Further, given that the incident occurred during night time, the mental state of D was more likely to be unstable, and the added on financial burden would have enhanced his desperation which in turn influenced D’s impulsive decision to just walk away from the S/Veh.

17. D did not notify the owner of VTC on the night of 29 October 2020 was because he was scared to face him directly. Adding on, D also did not park S/Veh back to the area close to VTC because he did not want to risk bumping into the owner of VTC and others. D further believed that if he informed PW1 that he was arrested by the police in Kowloon City and that the S/Veh was seized by the police, he could avoid responsibility and believed that PW1 will not collect the taxi rental from him anymore.

18. From the above, the reason why D left the ignition keys inside the S/Veh was because he never intended to revisit the S/Veh again after parking it beside the pier.”

18.  Regarding the ignition key(s)  left inside the S/Veh, the prosecution has fairly confirmed this to be the case and the defendant would be sentenced on that basis.

19.  However, from the wordings used in the written mitigation, it is another related concern that whether the defendant had the intention to permanently deprive the owner of the stolen property that has to be addressed. 

20.  Section 7 of the Theft Ordinance, Cap 210, stipulates that:-

“7. With the intention of permanently depriving the other of it (意圖永久地剝奪他人財產 )

(1)  A person appropriating property belonging to another without meaning the other permanently to lose the thing itself is nevertheless to be regarded as having the intention of permanently depriving the other of it if his intention is to treat the thing as his own to dispose of regardless of the other’s rights; and a borrowing or lending of it may amount to so treating if, but only if, the borrowing or lending of it is for a period and in circumstances making it equivalent to an outright taking or disposal.

(2)  Without prejudice to the generality of subsection (1), where a person, having possession or control (lawfully or not)  of property belonging to another, parts with the property under a condition as to its return which he may not be able to perform, this (if done for purposes of his own and without the other’s authority)  amounts to treating the property as his own to dispose of regardless of the other’s rights.”

21.  It was confirmed by both parties that this section remains applicable and such submission is not intended to undermine or challenge the relevant element of offence and the decision to plead guilty and the guilty plea all along remain proper.

22.  Regarding Charge 2, the explanation was that the defendant has lost the bail sheet and had forgotten about the date of hearing.  He first claimed in the written mitigation that he had visited a police station to report his absence a few days later and the police had asked him to go, stating that he was not on the wanted list.  It was expressed that the defendant had no intention to flee whatsoever.  In his Further Mitigation Submissions, counsel for the defendant informed this court that this police-station-visit point is no longer relied upon as mitigation.

Consideration

23.  The defence relied on the case of HKSAR v Yu Chi Chiu CACC198/2015, paragraphs 4 and 5 in particular, and said that the appropriate starting point for the offence of “theft of vehicle” (as opposed to taking conveyance without authority)  is 3-5 years’ imprisonment.

24.  It is helpful to note that the Court of Appeal in Yu Chi Chiu stated (in paragraph 10)  that:-

“10. However, for the sake of completeness, I will also point out that the theft of a vehicle is a serious crime for the following reasons:

(1)  Regardless of the make/model of vehicle, it is a valuable property worth a lot of money.

(2)  A vehicle is also a private space that occasionally or even permanently stores all sorts of items that bear personal date and/or tend to expose confidential information (eg phones, name cards, different types of documents/letters, and all types of memory cards or access cards).

(3)  A vehicle is often parked in the public place, making it prone to be a target of theft.

(4)  To the owner of a private vehicle, the loss of his vehicle will cause him great inconvenience as he will lose his means of transportation. And when a vehicle is used for a commercial or work purpose, the loss of it means that the owner will lose his paraphernalia for making money, which in turn will cause additional economic loss or even affect his livelihood.”

25.  I am of the view that at the least, (1)  would be applicable to the present case.  In other words, stealing a taxi remains a serious offence because of the value of the property.  (4)  would also be a relevant factor but the features in (2)  and (3)  do not exist in the present case. 

26.  I therefore called upon the parties to address the issue whether the 3-5 years starting point is still applicable to our present case and whether the court can take a lower starting point because of the distinction (Issue 1).  I also raised another issue: whether the stealing of the taxi in the present case involved a breach of trust between the company and the defendant (Issue 2).

27.  On Issue 1, counsel for the defendant submitted that “the severity of the theft of S/Veh by D is relatively low since the nature of the S/Veh was a taxi for rental.”  The prosecution confirmed that the court can legally depart from the guideline if having considered all the circumstances of the case such a departure is justified.

28.  On Issue 2, it was submitted by the defence that “their relationship is a contractual one which does not give rise to a position of trust.”  The prosecution remarked, quite fairly indeed, that the present case is not the usual case of breach of trust and did not consider the application of the lines of relevant principles derived from HKSAR v Cheung Mee Kiu [2006] 4 HKLRD 776 is necessary.

29.  Much reliance has been placed by the defence upon the case of HKSAR v Sim Ka-wing CACC450/2000.  At page 5, Keith JA (giving the judgment of the Full Bench of the Court of Appeal)  said:-

“Breach of trust is, of course, regarded as an aggravating feature in cases of dishonesty. But it is so regarded because the offender will have abused the trust reposed in him. That trust may have involved an employee being entrusted with his employer's money or valuables, or being placed by his employer in a position whereby the dishonest employee could defraud his employer or his employer's customers or clients. The point is that the offender is, to use the words of Lord Lane CJ in Barrick (1985)  7 Crim App R(S)  142, in a "privileged and trusted" position. It is that position of privilege and trust that he abuses.”

30.  I note that the Applicant in Sim Ka-wing was not regarded by the Court of Appeal as having been placed in a position of privilege and trust by the victim because the Court of Appeal went on to say (from page 5 to page 6):-

“That is not really this case. The Applicant was not placed in a position of privileged and trust by Delifrance which he abuse. His breach of trust, as Stock JA pointed out in the course of argument, involved his use of knowledge about the Delifrance outlet in Worldwide House which he had acquired while working there. We do not wish in any way to belittle that breach of trust, but it is not a breach of trust of the kind to which the phrase normally applies. Thus, although the breach of trust in this case warranted a further enhancement of the starting-point, that increase should only have been modest.”

31.  In other words, it is not the case that the Court of Appeal had rejected that there was a breach of trust element in that case; it is that a breach of trust element sometimes varies in its degree and an appropriate increase in the starting point should be applied accordingly depending on the facts of each case.

32.  In HKSAR v Poon Kar Yue [2018] HKCA 684, the Court of Appeal explained (per Macrae VP):-

“25. We feel we should deal with the issue of what amounts to a “breach of trust” for the purpose of aggravating a sentence, since we perceive a tendency among judges and magistrates on occasion to apply the term too liberally. There is a danger that a convenient label can sometimes become misunderstood and misapplied with the frequency of its use.

26. It is a well-established principle of sentencing that where there exists a relationship of trust between a defendant and the victim of his crime, his criminality is seen in more serious terms, justifying a more severe, or different type of, sentence. The classic examples of such a relationship are an employer and employee, a professional and client, customer or patient, a teacher and pupil and a parent and child. However, there are other types of relationship which, depending on the facts and circumstances, may also fit within these categories; for example, a pastor and a member of the congregation, a police officer and a citizen and, in respect of a child, anyone who stands in loco parentis or an adult relative or friend of the family. There is also a relationship of trust between spouses, family members and close personal friends or colleagues. The defining quality of such relationships is that, by virtue of a person's position or authority, he is entrusted with access to something or someone he would not otherwise have, which he then misuses or abuses for his own personal advantage or pleasure.

27. The danger with the label “breach of trust” is that the concept of trust can be given a very wide meaning and extend into many aspects of human life and activity. For example, a taxi driver might be said to be trusted not to cheat on the fare, or place his passenger at risk. The chef of a restaurant is trusted to avoid unsafe and unhygienic practices in providing food to his patrons. Even the customer of a shop or supermarket can be said to be trusted not to take goods on display without paying for them. Yet, it would not normally be suggested that the taxi driver, the chef or the customer had abused a position or authority in relation to the “victim” he would not otherwise have had, thus meriting an enhanced sentence.”

33.  It is apparent that the list of examples was not meant to be exhaustive, and the key is whether the accused “is entrusted with access to something or someone he would not otherwise have, which he then misuses or abuses”.

34.  It is important to note that the “taxi driver” example in paragraph 27 in that case is not in the same position of the defendant in the present case who happened to be a taxi driver at the material times because it is the relationship between a victim and an accused that is relevant and therefore this should be viewed in the proper context.

35.  In any event, I do not accept the suggestion that a commercial relationship and a privileged and trusted position are mutually exclusive or in the words of the defence “a contractual (relationship)  does not give rise to a position of trust.”

36.  In my judgment, it is the nature of the relationship that matters, and one cannot get over influenced by a name, a label or one of the features or characteristics of a relationship and jump into conclusion one way or the other.

37.  That said, I do agree that only a modest increase to the starting point should be given because I find that as a matter of fact, there exists an element of breach of trust.  The defendant would not have been given the taxi without having been placed in a privileged and trusted position at the same time for a neglectable small sum of deposit.  The deposit he had given must refer to and only referable to the rental he should pay for renting the taxi.  In other words, the defendant had abused the trust in stealing S/Veh between he and the Company.

Conclusion

38.  Having carefully considered all the materials before this court, I have the following conclusions regarding each of the charges.

39.  For Charge 1, I am of the view that the present case is differentiable from the usual theft of vehicle cases, and a 27-month starting point (ie 2yr 3mth)  is justifiable.

40.  For the element of breach of trust, the appropriate increase should be one of 3-month.

41.  Combining these, the 30-month starting point is reduced to 20 months’ imprisonment for the defendant’s guilty plea.

42.  I note the defendant’s previous records.  Suffice it to say, they are of different nature and no enhancement of sentence on any proper basis is called for.

43.  I do not see further reduction is justified and therefore, for Charge 1, the defendant is sentenced to 20 months’ imprisonment.

44.  I note my power to order a disqualification of driving licence in this offence. I accept the submissions of the defence that this case does not concern or reveal the driving manner of the defendant whatsoever and decide not to exercise it and accordingly, no order of disqualification is made.

45.  For Charge 2, the maximum sentence is 12 months’ imprisonment.  Taking into account all the circumstances in this case, I am of the view that a starting point of around 6 weeks should be appropriate.  I reduce it by one-third and decide to impose 1 month on the defendant.

46.  Further, bearing the totality principle in mind, I see no reason why this 1-month should be made concurrent or partially concurrent to the sentence for Charge 1.  In fact, the defence did not suggest otherwise.

47.  I shall order that both sentences be served consecutive to each other and imposed upon the defendant a total sentence of 21 months’ imprisonment, which is an immediate custodial sentence, not a suspended one.