HKSAR v. YEUNG CHI WA

CACC 224/2017

[2018] HKCA 73

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 224 OF 2017

(ON APPEAL FROM DCCC NO. 230 OF 2017)

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REASONS FOR JUDGMENT

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1.  The applicant sought leave to appeal the total sentence of 2 years and 8 months’ imprisonment imposed on him on 18 July 2017 by District Court Judge Yip following his conviction, on his pleas of guilty, to nine charges and the order that he be disqualified from driving for a period of four years. At the hearing, I refused the application and said that I would give my reasons in due course. That, I do now.

2.  The applicant was convicted of:

•   two charges of theft, contrary to section 9 of the Theft Ordinance, Cap. 210.  Charge 1 was in respect of a taxi and Charge 5 in respect of a vehicle licence of another vehicle;

•   four charges of using markings, namely false number plates, on a vehicle, namely the taxi, with intent to deceive, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap. 374 (Charges 2, 3, 4 and 6);

•   a charge of using a vehicle licence on a vehicle, namely the taxi, with intent to deceive, contrary to the same provision (Charge 7);

•   a charge of using a restricted zone permit on a vehicle, namely the taxi, with intent to deceive, contrary to again the same provision (Charge 8); and

•   a charge of using a motor vehicle without third party insurance, contrary to sections 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (Charge 9).

3.  The applicant was sentenced to an overall term of 2 years and 8 months’ imprisonment.  In addition, in respect of Charges1 and 9, he was disqualified from driving motor vehicles in Hong Kong for a period of four years starting from the date of sentence [1].

The facts

4.  At about 06:00 hours on 11 November 2016, a taxi with the number plate PZ 963 was found to be missing from the place at which it had been parked two hours earlier in a street in Chai Wan.  The loss was reported to the police by the agent appointed by the owner to manage the rental of the taxi (Charge 1). 

5.  On 24 November 2016, the driver of a rented taxi bearing registration mark HA 9072 parked his taxi near the Hong Kong International Airport and fell asleep whilst waiting for customers.  When he awoke at about 03:00 hours, he found the vehicle licence missing (Charge 5).

6.  At about 10:40 hours on 23 December 2016, police officers on patrol at a public car park in Pat Heung came upon the applicant, who was seated at the driver’s position of the stolen taxi, which now bore the false number plate KX 8483 (Charge 6).  Affixed to its windscreen was a vehicle licence for the vehicle with the number plate HA 9072 (Charge 7) and a restricted zone permit with handwritten registration mark HA 9072 (Charge 8).  Under the carpet beneath the driver’s seat were the vehicle number plate, KG 1609 (Charge 4).  The pair of original vehicle number plates of the stolen taxi, PZ 963 was found in the boot of the vehicle, together with the pairs of number plates HA 9072 (Charge 2) and RM 9641 (Charge 3).

7.  Having been arrested and cautioned, the applicant admitted stealing the taxi and having done so in order to earn money. Upon caution, he admitted stealing the stolen taxi to earn money.

8.  In video recorded interviews the applicant claimed that he had worked as a taxi driver since April 2011 and that he had rented taxis through different agents.  On 11 November 2016, he recognised the taxi with the number plate PZ 963 as a taxi rented by one of those agents, who had allowed those who rented the taxi to leave the vehicle key behind the rear number plate.  Having located that key, he stole the vehicle.  Then, having observed taxis with the vehicle number plates RM 9641, KX 8483 and KG 1609, he purchased false number plates with those descriptions, which he had then displayed on the stolen taxi.  The applicant said that he was able to steal the vehicle licence for the taxi HA 9072 because it was a vehicle that he had rented in the past and he had retained the key, which he had used to gain entry to the vehicle.  Then, he had displayed that vehicle licence in the stolen taxi.  He had altered the restricted zone permit of the stolen taxi by writing the number plate HA 9072 on it.

Mitigation

9.  In mitigation Mr Wong Tsz Ho, informed the judge that the applicant was a 34-year-old taxi driver.  He rented taxis in order to ply that trade, but there came a time when he was unable to provide the requisite deposit for rental of about $5,000.  In those circumstances, he had come to commit the offences of which he had been convicted.

10.  Mr Wong drew the judge’s attention to various authorities relevant to the theft of a taxi and the imposition of a disqualification from driving order.[2]  For his part, Mr Joe Hui, for the prosecution, drew the judge’s attention to the judgment of Macrae JA, sitting as a single judge in an application for leave to appeal against sentence, in HKSAR v Kan Tak Man.[3]

11.  Mr Wong acknowledged that the overall starting point should be about 3 to 4 years’ imprisonment, and that the disqualification order should be of a similar length.

Reasons for sentence

12.  In his reasons for sentence, the judge adverted to the authorities to which he had been referred:[4]

“ In HKSAR v Cheng Chun Ming CACC 356/2000, the defendant dishonestly handled a brand new stolen car. The starting point of 3 years was regarded as appropriate by the Court of Appeal.

In HKSAR v Kan Tak Man (簡德民) CACC 122/2016, the defendant was sentenced for the theft of (a) car (1^st Charge), driving without a valid driving licence (2^nd Charge), using a car without third party insurance (3^rd Charge), and using documents on a car with intent to deceive (4^th Charge). The overall starting point for sentence was 3 years and 6 months plus 6 months due to his record of persistent offending. Leave to appeal against sentence was refused by the Court of Appeal.

In HKSAR v Tsang Kwun Wing (曾冠榮) CACC 89/2004, the defendant stole a taxi (1^st Charge) and purchased 2 sets of number plates and forged vehicle licences (2^nd – 5^th Charges) to conceal its identity when using it to earn a living for one year. He drove without third party insurance (6^th Charge) and it was an unlicensed vehicle (7^th Charge). The overall sentence of 2 years and 8 months on a plea of guilty was approved by the Court of Appeal.

In HKSAR v Lam Yui Yiu（林銳堯）CACC 373/2006, the defendant dishonestly handled a stolen taxi and fitted it with false number plates for a period of less than 3 weeks.  A starting point of 4 years was regarded at the top end of the range but not manifestly excessive by the Court of Appeal.”

Starting point for sentence

13.  Then, the judge stipulated a starting point for sentence in respect of the theft of the taxi (Charge 1) of 3 years’ imprisonment.  In respect of each of the charges of using markings on a vehicle with intent to deceive (Charges 2, 3, 4, 6, 7 and 8) the judge took a starting point for sentence of 3 months’ imprisonment.  Finally, for the charge of theft of the vehicle licence (Charge 5) and that of using a motor vehicle without third‑party insurance (Charge 9) the judge took a starting point for sentence of 6 months’ imprisonment.

Discount    

14.  The judge said that he afforded the applicant a discount of one‑third from that stipulated as the starting points for sentence to reflect the applicant’s pleas of guilty.  Accordingly, the sentences imposed on the applicant were:

Charge 1 - 2 years’ imprisonment;

Charges 2, 3, 4, 6, 7 and 8 - 2 months’ imprisonment; and

Charges 5 and 9 - 4 months’ imprisonment.

Sentence

15.  Then, having stated that he had regard to the “totality principle”, the judge said that he would order that some of the sentences be served concurrently.  In the result, the judge sentenced the applicant as follows:

“2 years for the 1^st Charge;

Sentence for the 5^th Charge to be consecutive to other charges;

Sentence for the 9^th Charge to be consecutive to other charges;

Sentence for each of the 2^nd, 3^rd, 4^th, 6^th, 7^th and 8^th Charges to be concurrent with one another as well as other charges.”

Accordingly, the total sentence imposed on the applicant was 2 years and 8 months’ imprisonment.

Disqualification

16.  In disqualifying the applicant from driving any motor vehicle, the judge said:

“ I order disqualification for 4 years in respect of the 1^st Charge by virtue of section 69(1)(c) of the Road Traffic Ordinance, Cap. 374. I also order disqualification of 2 years 6 months in respect of the 9^th Charge by virtue of section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272. The 2 terms of disqualification are to be concurrent.”

Grounds of appeal against sentence

17.  In the grounds of appeal against sentence settled by Mr Albert Poon, and adopted by Mr Wong Po Wing, it was submitted that the overall term of imprisonment imposed on the applicant was manifestly excessive and that the orders of disqualification were wrong in principle or manifestly excessive.

18.  In written submissions advanced by Mr Albert Poon, and adopted by Mr Wong Po Wing in a letter to the Court dated 22 December 2017, it was submitted that a “special feature” of the applicant’s theft of the taxi was that he did not and did not intend to dispose of the taxi.  Rather, he used it dishonestly to make an “honest living”.  That, it was suggested place the applicant’s culpability lay midway in the spectrum of culpability of the offence of taking a conveyance without authority and an “outright vehicle theft”.  It was submitted that the usual sentence imposed for the former offence was much lower than that imposed for theft of a vehicle.  The Court was invited to note that in HKSAR v Andrianiaina Adrien Luc Yu Pau [5], where the appellant had been charged with taking a conveyance without authority, dangerous driving, using a motor vehicle without third party insurance and robbery, this Court allowed the appeal against sentence, imposed after the appellant had pleaded guilty, in particular in respect of the offence of taking a conveyance without authority.  There, this Court said that the judge erred in taking a starting point for sentence for that offence of 12 months’ imprisonment.  Rather, it determined that the appropriate sentence was 9 months’ imprisonment and, affording the applicant a discount of one‑third, reduced it to 6 months’ imprisonment.

19.  Although it was acknowledged in the applicant’s written submissions that the facts of the applicant’s case were very similar to the facts obtaining in HKSAR v Tsang Kwun Wing, this Court was invited to note that the argument that the conduct fell midway in the spectrum of culpability between theft of a vehicle and taking a conveyance without authority had not been advanced in that case or in any of the other cases to which the judge had been referred.

20.  In his oral submissions, Mr Wong acknowledged that, having regard to the authorities cited by the respondent, it was not reasonably arguable that the judge had erred in stipulating a starting point for sentence for the theft of the taxi of 3 years’ imprisonment.  Rather, he took issue with the overall sentence of 2 years and 8 months’ imprisonment imposed on the applicant.

Disqualification

21.  In respect of the orders of disqualification, in the applicant’s written submissions it was submitted that it was an established principle that an order of disqualification should not become a handicap for the offender and re-establishing himself in an honest life after he had served his sentence of imprisonment.[6]  In his oral submissions, Mr Wong invited the Court to note that the applicant’s earliest date of release was 3 October 2018, whereas the period of disqualification from driving imposed on the applicant would not expire until 18 July 2021.  He submitted that the period of disqualification should be reduced so that it expired contemporaneously with the applicant’s release from serving his sentence of imprisonment.

The respondent’s submissions

22.  For the respondent, Mr Joe Hui opposed the application for leave to appeal against sentence.  In his written submissions, he submitted that the fact that the applicant had retained possession of the stolen taxi for more than a month evidenced his intention to permanently deprive the owner of the taxi.  He invited the Court to note that the case of HKSAR v Andrianiaina Adrien Luc Yu Pau involved an entirely different factual matrix.  There, the appellant had boarded a light goods vehicle, which the driver had left unattended, and driven it away.  Less than 15 minutes later, having collided with parked vehicles, shopfronts and railings, the appellant had abandoned the vehicle and set about robbing a member of staff at the counter of a lobby of a nearby hotel.  He had been charged, inter‑alia, with taking the light goods vehicle away without authority.  In those circumstances, that was the appropriate charge, not theft.

23.  In his written submissions Mr Hui submitted that it was “bewildering” that it had been submitted in the applicant’s written submissions that he could be regarded as having set about making an “honest” living by the use of the stolen taxi.  Having taken significant steps to conceal the true identity of the taxi, the applicant had used the property of another to make a profit, thereby depriving the other of his property and the monies that could be made by its use.

24.  Next, Mr Hui submitted that the starting point taken for sentence for the theft of the taxi of 3 years’ imprisonment was entirely appropriate.  That starting point for sentence had been approved by this Court in HKSAR v Yu Chi Chiu [7].  In that case, the applicant had pleaded guilty to the theft of a light goods vehicle, which he had kept for at least 17 hours until police officers had intercepted him after he opened the vehicle and sat in the driving seat.  This Court said that the starting point taken for sentence of 3 years’ imprisonment was not manifestly excessive.

25.  Then, Mr Hui submitted that the order of the judge that a total of eight months of imprisonment imposed in respect of the other eight charges of which the applicant had been convicted be served consecutively to the sentence of 2 years’ imprisonment imposed in respect of the theft of the taxi was entirely appropriate having regard to the principle of totality.

Disqualification

26.  Of the judge’s order that the applicant be disqualified from driving for four years, Mr Hui submitted that, whilst the applicant’s personal circumstances was one factor to be taken into account, it was also relevant to have regard to the need to protect the public.  He invited the Court to note that in HKSAR v Yu Chi Chiu [8]this Court had said“…a disqualification order is forward-looking and preventative rather than punitive” and that in doing so it had cited with approval observations by the Court of Appeal of England and Wales in R v Cooksley (Robert Charles), namely “It is designed to protect road users in the future from an offender who had shown himself to be a real risk on the roads.”[9]  Further, this Court [10] noted that in R v Cooksley the Court had said:[11]

“ We do not agree that the length of the ban should be tailored to take into account the anticipated date of early release of the offender. On the other hand we accept that to extend the ban for a substantial period after release can be counter‑productive particularly if it is imposed on an offender who was obsessed with cars or who requires a driving licence to earn his or her living because it may tempt the offender to drive while disqualified.”

27.  Mr Hui submitted that in driving the taxi for more than a month without third‑party insurance the applicant created substantial risks to other road users.  He invited the Court to note the applicant had numerous convictions for road traffic offences and that he had been the subject of a disqualification order under the Road Traffic (Driving‑Offence Points) Ordinance, Cap. 375.  In the result, he submitted that the disqualification order of four years in total was neither wrong in principle nor manifestly excessive.

A consideration of the submissions

28.  There is no merit whatsoever in the extraordinary written submission made on behalf of the applicant that the applicant’s culpability is to be viewed as being midway in the spectrum of culpability between taking a conveyance away without authority and theft of the vehicle.  Clearly, as his plea of guilty acknowledged, the applicant was guilty of theft of the taxi.  His illegal ongoing possession of the taxi for about six weeks was only brought to a halt by the wholly fortuitous intervention of the police officers.

29.  Mr Wong was correct to acknowledge in his oral submissions that it was not reasonably arguable that the judge erred in stipulating a starting point to be taken for the theft of the taxi of 3 years’ imprisonment. That sentence was entirely consistent with a series of judgments of this Court. In the judgment of this Court in HKSAR v Yu Chi Chiu of the starting point taken for sentence of 3 years’ imprisonment for the theft of a light goods vehicle, Pang JA said:[12]

“ …we do not think that it was manifestly excessive for the trial judge to take 3 years’ imprisonment as a starting point for sentencing. …That basis is consistent with the general sentencing quantum laid down in cases.  The appellant had stolen the vehicle for at least 17 hours and had not returned or discarded it during the interval, which was obviously contrary to the circumstances of “taking conveyance without authority”.”

30.  In the judgment of this Court in HKSAR v Tsang Kwun Wing,Stuart-Moore VP noted that “very properly” no issue had been taken on behalf of the applicant in respect of the judge stipulating a starting point for sentence of 3 years’ imprisonment for the theft of a taxi, which was subsequently used for hire, and four related charges of the use of forged documents, namely two sets of registration number plates and two sets of motor vehicle licences, to conceal the true identity of the taxi.[13]  Issue was taken, inter‑alia, with the sentence of 8 months’ imprisonment imposed for the charge of using the motor vehicle without third‑party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 which the judge ordered to be served consecutively to the other sentences.  The judge had stipulated a starting point for sentence of 12 months’ imprisonment and, affording the applicant a discount of one‑third, imposed a sentence of 8 months’ imprisonment.  In determining that the judge was entitled to take that approach in sentencing, Stuart‑Moore VP noted that the applicant had driven the stolen taxi for many months without insurance and said that the applicant that had created “a serious hazard to other road users in general”, noting that the offence “affected the road‑using public at large.” [14]

Using a motor vehicle without third-party insurance (Charge 9)

31.  In the instant application it was accepted that the applicant had used the stolen taxi to ply for hire as a taxi driver for the period of six weeks that it was in his possession.  Obviously, in those circumstances the road‑using public were put at risk for a considerable period of time by the fact that he was using the stolen taxi in that way without third‑party insurance, albeit that the period of use of the stolen taxi was considerably less than that in HKSAR v Tsang Kwun Wing.  In those circumstances, in my judgment it is not reasonably arguable that the judge erred in stipulating a starting point for sentence for that charge of 6 months’ imprisonment and imposing a sentence of 4 months’ imprisonment.

Theft of a vehicle licence (Charge 5)

32.  The offence of stealing a vehicle licence from another taxi involved the applicant in using a key to gain entry to the vehicle. To do so, the applicant accepted that he had used knowledge that he gained as a driver trusted to rent vehicles from that taxi rental enterprise. In my judgment, in those circumstances, it is not reasonably arguable that the judge erred in stipulating a starting point for sentence for that charge of 6 months’ imprisonment and imposing a sentence of 4 months’ imprisonment.

Totality

33.  In sentencing the applicant, the judge stated that he had regard to the totality principle in arriving at the appropriate overall sentence to impose on the applicant.  The judge ordered that the sentences of imprisonment imposed in respect of Charges 2, 3, 4, 6, 7 and 8 were to be served concurrently to the other sentences of imprisonment.  Those charges arose from the steps that the applicant had taken to use the stolen taxi was concealing from others that it was stolen.

34.  The offences reflected by Charges 5 and 9 involved quite separate criminality from the other offences. In ordering that the sentences of 4 months’ imprisonment imposed for each of those charges to be served consecutively to all the other charges the judge imposed an overall sentence of 2 years and 8 months’ imprisonment on the applicant.  In my judgment, in all the circumstances it is not reasonably arguable that he erred in doing so.

Disqualification from driving a motor vehicle

35.  In the course of mitigation, the judge acknowledged that none of the charges to which the applicant had pleaded guilty concerned the manner of the applicant’s driving.  After the acceptance by the applicant of the Summary of Facts, the judge had been furnished with the applicant’s antecedent statement, criminal record and ‘Hong Kong Police Traffic Conviction and Fixed Penalty Payment Citations Summary.’  It is to be noted that on 25 August 2010 the applicant had been disqualified under the Driving Offence Points Ordinance.  Further, he had been convicted of careless driving on three separate occasions, namely on 24 July 2009 and 9 March 2010 and 8 November 2011.  Also, on multiple occasions he had been the subject of a fixed penalty for a range of infractions of road traffic legislation.  He had been required to attend a driving improvement course.

36.  In the judgment of this Court in the Secretary for Justice v Hung Ling Kwok [15], to which the judge’s attention was drawn in the course of mitigation, the principle that an order for disqualification was “forward‑looking and preventive” was endorsed.  Regard is to be had to the fact that part of the period of disqualification would be served whilst the applicant was in custody.  In that case the applicant had been sentenced to 3 years and 4 months’ imprisonment and disqualified from driving for 3 years.  In the result, this Court increased the period of disqualification to 6 years.

37.  In his oral arguments, Mr Wong placed reliance on the fact that in HKSAR v Yu Chi Chiu this Court reduced an order of disqualification from driving imposed on the appellant of 6 years to 4 years. In that case, the appellant had been sentenced to 2 years and 4 months’ imprisonment for the theft of a light goods vehicle. Mr Wong invited the Court to note that in that case the appellant did not have and never had a driving licence, albeit that he had been convicted of multiple driving offences. By contrast, he pointed out that the applicant had a driving licence and had been a taxi driver since 2011. However, as Mr Hui pointed out, in determining the appropriate balance between the competing considerations of the safety of the public and the risk that someone obsessed by driving might be tempted to drive illegally, this Court said “…the facts show that though the appellant had persistently committed the offence of driving a vehicle without a licence, he had never been convicted of “dangerous driving” or “careless driving”. As noted earlier, the applicant had a dreadful driving record.

38.  In all the circumstances, in my judgment it is not reasonably arguable that the total sentence of disqualification of 4 years imposed on the applicant was manifestly excessive or wrong in principle.

Conclusion

39.  For the reasons that I have given, I refused the application for leave to appeal against sentence.

40.  The applicant is advised that he has the right to renew his application for leave to appeal against sentence to the Full Court but is informed that if he does so, and the Full Court determines that the renewal is without justification, the Full Court may order that some of the time that the applicant has spent in custody pending the determination of his application shall not be reckoned as part of the term of his sentence.