HKSAR v. WAN SIU KEI

HCMA 1156/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1156 OF 2003

(ON APPEAL FROM TWCC 3567/2003)

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J U D G M E N T

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1. The Appellant was found guilty after trial of one count of Soliciting Passengers, contrary to Regulations 40 and 57(4) of the Road Traffic (Public Service Vehicles) Regulations made under the Road Traffic Ordinance, Cap. 374. He was represented at trial by the Duty Lawyer. He was sentenced to 3 months imprisonment and a suspended sentence of 7 days passed in a previous case, TWCC 2843/2002, was activated and ordered to run consecutively to the sentence.

2. The Appellant appealed against both conviction and sentence. He represented himself on the appeal against conviction, but was represented by counsel on the appeal against sentence.

3. The basis of the prosecution case was that the Appellant, a taxi driver, solicited a tourist couple who were waiting at the airport passenger terminal for a taxi trip to their hotel. The Appellant claimed in his defence that he had come to the airport to pick up a man known as "Mr Thornton", a pre-arranged booking; in other words, he picked up the wrong couple by mistake.

4. The issue for the Magistrate was credibility. He reviewed the discrepancies in the evidence and accepted the evidence of the prosecution witnesses. The Appellant complained that he had had too little time to prepare for the case. This was dealt with by the Magistrate who knew the case had been brought on early as the tourist witness was leaving Hong Kong. The court asked the Duty Lawyer to represent the Appellant and stood down the case so counsel could take instructions. Counsel eventually advised the court that she was fully instructed and ready for trial. The Appellant confirmed to the Magistrate that he accepted the representation by counsel and it was apparent that counsel represented the Appellant according to the duties of counsel.

5. The Magistrate concluded the Appellant was guilty of the offence and convicted him. Having considered the Statement of Findings and the manner in which he dealt with the evidence, there is no basis for interfering with that conviction.

6. The perfected grounds of appeal against sentence were that the Magistrate erred in law and in fact by failing to consider that the maximum penalty under sections 26 and 62 of the Airport Authority Bylaw, Cap. 483 was a fine at Level 3 and 1 month's imprisonment, whereas the maximum penalty in Regulations 40 and 57(4) of the Road Traffic Ordinance, Cap. 374, the charge in this case, was a fine at Level 3 and 6 months' imprisonment. The Airport Authority Bylaw charge was relevant because the Appellant had 5 previous convictions under that Ordinance, all of which involved soliciting.

7. His first conviction was in August 2000, the next on 21 June 2001 and then again on 17 September 2001, on 1 August 2002 and on 15 January 2003. For the first 4 offences, he was fined. For his last offence, he had been given 7 days' imprisonment, suspended for 12 months and fined $3,000.

8. The second ground of appeal against sentence was that the Magistrate erred in law and in fact by taking a starting point of 3 months' imprisonment when this was the Appellant's first conviction under the Road Traffic Ordinance.

9. The third ground was that the Magistrate erred in failing to consider that the suspended sentence was imposed under a different, although similar provision and that three-quarters of the operational period of the suspended sentence had expired at the time of the present conviction.

10. The fourth ground was that the Magistrate failed to consider the totality principle.

11. The fifth ground was that the sentence of 3 months and 7 days is manifestly excessive.

12. It was obvious from the file and comments made by the Appellant both in court and in a letter to the court, that he was a repeat offender who had no remorse about his previous convictions and took no notice of the fines or the suspended sentence which had been imposed for previous offences.

13. The Magistrate stated that the Appellant "had a complete disregard for the law against soliciting at the Airport and the previous sentences did not deter him". In such circumstances, the Magistrate had little choice but to impose an immediate custodial sentence and the only matter that requires scrutiny is the length of that sentence. The maximum sentence which the legislature has prescribed is 6 months.

14. The Magistrate considered the suspended sentence was a separate offence, similar in nature to the present one. He did not consider the Appellant's having served a large part of his suspended sentence period a valid reason for not activating the full 7 days. There is no reason to interfere with that decision. Nor was there any reason for not ordering the sentences to run consecutively.

15. The Magistrate considered a fine, Probation, Community Service Order and a suspended sentence and did not find them appropriate in view of the previous record.

16. The Magistrate took half of the maximum period as his starting point. That starting point may be on the high side, but this sentence must be a deterrent one and given there is no tariff and the sentence is well within the range of the maximum penalty I see no reason to interfere with the sentence.

17. The Appellant admitted in court and before the Magistrate that he was in a difficult financial situation with the flat he purchased, consequently he was entitled to solicit tourists in the manner he persisted in doing in an attempt to improve his financial position. The Magistrate took a starting point of 3 months' imprisonment; there was no mitigation in the circumstances set out in the background report obtained, or in the mitigation advanced, that could reduce the sentence.

18. The appeals against conviction and sentence are dismissed.