HKSAR v. ARIF AQIB

DCCC 684/2015

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 684 OF 2015

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Reasons for Sentence

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This is the sentence of the court.

1.  D pleaded guilty to one charge of taking conveyance without authority, contrary to section 14(1) of the Theft Ordinance, Cap. 210 (charge 2), one charge of using a 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 (charge 3), one charge of driving without a valid driving licence, contrary to section 42(1) and (4) of the Road Traffic Ordinance, Cap. 374 (charge 4), one charge of using an identity card relating to another person, contrary to section 7A(1A) of the Registration of Persons Ordinance, Cap. 177 (charge 5) and one charge of forgery of document, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap. 374 (charge 6). That plea was accepted by the prosecution, and upon the D’s conviction, I ordered that a charge of theft (charge 1) was to be left on the court file and not to be proceeded with without the leave of the court, as requested by the prosecution.

Background and the Facts

2.  Briefly the facts were these: Mr. Chan was the general manager of Kwai Bon Transportation Ltd (“KBT”), a transportation company. KBT rents about 30 car parks at Sunshine Kowloon Bay Cargo Centre (“the Centre”) for parking its Light Goods Vehicles.

3.  On 19 April 2015 at around 1824 hours, Mr Chan was told that a security guard at the Centre saw three South Asian male drove off Light Goods Vehicle MB 9542 (“the LGV”). It was found out that the LGV was not authorized by any supervisor to be driven. He reported the case to the police. At the same time Mr Chan instructed his staff to use the GPS installed in the LGV to locate it and inform the police.

4.  At about 1908 hours on 19 April 2015, PC10967 arrived at the Junction of Ma Tau Kok Road and Chung Sun Street (“the Junction”) and found the LGV. He saw several males inside the LGV. The Defendant came up to PC10967 and claimed to be the driver of the LGV. He further claimed to be a staff of the company that owned the LGV and that he had driven the LGV on instruction for delivery of goods. The Defendant showed the keys of the LGV to PC10967. He further presented a Hong Kong ID card and a probationary driving licence, both documents bore the name of Muhammad Waqar Khan (“khan”) to PC10967.

5.  At about 1930 hours Mr Chan reached the Junction and confirmed that the LGV belonged to KBT. Mr Chan recognized the Defendant as a former causal worker for KBT who had been fired three months ago. Mr Chan confirmed there was no damage and loss found on the LGV.

6.  PC10967 arrested the Defendant for “taking conveyance without authority”. Under caution at the scene, the Defendant said “it’s the company’s problem. I don’t know anything.” Six other males were found inside the LGV.

7.  On 20 April 2015, under caution during an interview with Urdu interpreter, the Defendant under the name of Khan admitted, inter alia, the following:

1) He had stolen the LGV from the Centre approximately between 5:30 to 6 pm on 19 April 2015;

2) Two friends had been with him at the time but they had not known the Defendant was stealing the LGV;

3) The Defendant had known about the parked lorries at the Centre from his previous work experience there;

4) While the Defendant was at the Centre, a security guard had asked him what he was doing and he had said that he was taking the lorry for work;

5) The Defendant had intended to use the LGV for fun and to give his friends a ride and then return it to the Centre (Charge 2).

8.  After being released on police bail, the Defendant jumped police bail on 19 May 2015 when he failed to report to the police. Fingerprint check revealed that the true identity of the Defendant to be Arif Aquib. The Defendant was re-arrested on 22 May 2015 at Kwun Tong Police Station.

9.  On 23 May 2015, under caution during an interview with an Urdu interpreter, the Defendant under his real name admitted, inter alia, the following:

1) Apart from the name, age, date of birth and ID card number of Khan, the Defendant confirmed all the other information recorded in the record of interview dated 20 April 2015 to be accurate;

2) The Defendant had produced the Hong Kong ID card and driving licence of Khan to PC10967 upon his arrest (Charge 5 and 6);

3) His own Hong Kong identity card and driving licence were at home at the time;

4) His learner’s driving licence had already expired on 18 April 2014; he produced Khan’s driving licence and Hong Kong ID card hoping the police would not find out his expired learner’s driving licence, with the intention that the police could not find his real identity and therefore could not charge him with any offence;

5) The Defendant admitted that he had driven the LGV without a valid driving licence at the material time.

10.  Police enquiries revealed that the third party insurance coverage of the LGV was not operative at the material time (charge 3) and that the Defendant was only the holder of a learner’s driving licence which had expired on 18 April 2014 (charge 4).

Personal background and mitigation put forward

11.  The Defendant is 20 years of age and is of Pakistani nationality. He was educated up to secondary 2 in Hong Kong. He is now a Hong Kong permanent resident. He lives with his family and was working as a construction worker earning about $14,000 per month.

12.  The Defendant had 3 previous convictions: one theft and one assault occasioning actual bodily harm in September 2010 and one robbery in October 2015. He is now serving a period of detention in a Training Centre for the robbery charge. Miss Khubchandani for the prosecution informed the Court that the Defendant has committed the present offences while he was on court bail in his robbery case.

13.  In mitigation, Mr To, solicitor for the defendant, told me that on the material day the Defendant entered the car park of the Centre and he found the car key was left unattended inside the LGV. He had simply taken the Light Goods Vehicle intending to use it for the purposes of having a joy ride with his friends for barbeque. The victim company did not suffer any loss or damage to the LGV. It was Mr. To’s submission that the Defendant picked up Khan’s ID card and driving licence earlier that day in a street. The Defendant co-operated with the police and admitted to all offences in his interviews. He pleaded guilty and saved court’s time. Mr To asked for leniency on behalf of the Defendant.

Sentencing Considerations

14.  There are no sentencing tariffs or guidelines for any of the offences that the Defendant faced. In respect of charge 5 (using an identity card relating to another person), Miss Khubchandani for the prosecution has helpfully drawn to my attention a judgment of the Court of Appeal, HKSAR v FAN KING LAM (樊憬霖), CACC220/2010. The Defendant in that case was charged with two offences, one of them being possession of identity cards relating to other persons, contrary to section 7A(1A) of the Registration of Persons Ordinance. The Court of Appeal said, in paragraph 17:-

“We accept, of course, that the present applicant is a Hong Kong permanent resident and not someone staying in Hong Kong by permission. There is no specific tariff for such a case. While it is true that there could be no issue of seeking unlawful employment, we see no ground to say that the 12 months is not applicable in this case.”

In paragraph 20 of Fan King Lam (supra), the Court of Appeal further said:-

“In the present case, although the cards were not forged and the defendant was a Hong Kong permanent resident, we are of the view that, given the circumstances, 12 months after plea is neither wrong in principle nor manifestly excessive, particularly when the applicant was in possession of two identity cards relating to another.”

15.  As there was in fact no specific tariff for a case where the identity card was used by a Hong Kong permanent resident, Mr To urged the Court to adopt a lower starting point in respect of Charge 5 that the Defendant faced. 

16.  In the present case, the facts were serious that the production of another’s identity card and driving licence was not only to conceal the real identity of the defendant but also to prevent the police discovering the fact that the D’s learner’s driving licence had already expired. One also cannot ignore the fact that driving without insurance places all other road users at risk. 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.”

17.  This is more so considering that the Defendant has never passed a test of competence to drive a motor vehicle.  He is entirely an irresponsible driver who had demonstrated a total disregard of the interest of road users and his passengers. 

18.  It also has to be borne in mind that the present offences were also committed while the Defendant was on bail for his robbery charge, which must be viewed as an aggravating feature. Having considered all the circumstances of the case, I found the immediate custodial sentence was inevitable.

19.  I am aware that the Defendant is now serving a period of detention in Training Centre. I have considered as to whether a sentence of imprisonment would be counter-productive in that it would break the continuity of his present training in Training Centre. However, Section 5A of the Training Centre Ordinance provides that where a person who is serving a sentence of detention in a Training Centre is sentenced to a term of imprisonment of 2 years or less, not being a suspended sentence, the sentence of detention shall be suspended until the expiration of the term of imprisonment. Clearly the legislature envisages that there are circumstances in which it is appropriate to adopt this method of dealing with an offender.

20.  I have carefully considered all the matters put forth in mitigation, including the Defendant’s background and the circumstances under which he committed these offences. I therefore make the following order for sentence:

Taking conveyance without authority (charge 2)

21.  I consider a starting point of 9 months to be appropriate. The Defendant would be given the full one third discount for the plea. Therefore, the term of 9 months would be reduced to 6 months.

Using a vehicle without third-party insurance (charge 3)

22.  I consider a starting point of 6 months to be appropriate. Giving his full credit for his plea of guilty, the term of 6 months would be reduced to 4 months. As far as the disqualification period is concerned, the law requires the court to pass a disqualification order for not less than 12 months but not more than 3 years.  I find there is no special reason provided for not disqualifying the Defendant from holding or obtaining a driving licence. Therefore, I order that the defendant is disqualified from holding or obtaining a driving licence for all classes of vehicles for a period of 18 months. The disqualification period will start to run from the date of sentencing.

Driving without a valid driving licence (charge 4)

23.  I consider a starting point of 3 months to be appropriate. Giving his full credit for his plea of guilty, the term of 3 months would be reduced to 2 months.

Using an identity card relating to another person (charge 5)

24.  I consider a starting point of 15 months to be appropriate. Giving his full credit for his plea of guilty, the term of 15 months would be reduced to 10 months.

Forgery of document (charge 6)

25.  I consider a starting point of 9 months to be appropriate. Giving his full credit for his plea of guilty, the term of 9 months would be reduced to 6 months.

Totality

26.  Having considered the totality principle and all the relevant matters, I order that the sentences in respect of charge 3 to charge 6 are to be served wholly concurrently. I further order that 2 months of the term of 6 months imposed in respect of charge 2 is to be served consecutively to the sentences in respect of charge 3 to charge 6, making a total of 12 months’ imprisonment which I am satisfied properly reflects his criminal culpability on the five charges.