HKSAR v. Luen on Motors Ltd and Other

HCMA 217/2015

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 217 OF 2015

(ON APPEAL FROM FLS 12734 TO 12736 OF 2014)

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J U D G M E N T
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1.The 3 Appellants were each charged with one count of supplying goods in the course of trade or business to which a false trade description was applied.[1] The trial was heard before Magistrate Cheung Chi-wai and the proceedings were conducted in Chinese. The Appellants were represented by another Counsel at trial. The Magistrate found them guilty of the offence and sentenced A1 with a fine of $60,000. A2 and D3 were sentenced to an imprisonment term of 6 months.

2.A1 appealed against her conviction; A2 against his conviction and sentence, and A3 against his sentence.  In these appellate proceedings, A1 and A2 were represented by Mr Marash SC and A3 by Mr Lawrence Lok SC.  The present appellate proceedings were conducted in English for which relevant documents have to be translated. 

THE PROSECUTION CASE

3.It was alleged that A3 sold to Lam Chun-choi [PW1 Lam] a light goods vehicle [LGV], with the odometer reading of about 55,000 km which was false.  Since A3 acted as a salesperson for and on behalf of the company, namely A1, the Prosecution said A1 committed the same offence in the absence of evidence to invoke the statutory defence under section 26 of the Trade Descriptions Ordinance.  As A2 was the director of the company, it was alleged that, A2 also committed the offence.

4.The admitted facts stated, inter alia, that: [2]

(1)  A1 was a car dealer company;

(2)  A2 was the company A1’s sole director;

(3)  A3 was a salesperson of A1;

(4)  On 27 September 2013, PW1 Lam bought the LGV, registration number SE 279,  from A1 for $120,000. The written agreement was signed by A3 on behalf of A1;

(5)  In August 2013, the first owner [PW2] of the LGV sold the car to Chan Ming-wai [PW3] for $60,000.  On 27 August 2013, PW3 sold the car to A2 at the same price;

(6)  Both A1 and A2 had no previous record;

(7)  In accordance with the relevant air pollution regulations, starting from 1 March 2014, the owner of the LGV, if he dismantled the car before 16 August 2018, he could apply to the Transport Department and could be entitled to receive special allowance of $87,200.

5.The original owner of the car, PW2 Cheung, bought the LGV brand new in 2005.  In August 2013, PW2 Cheung sold the LGV to PW3 Chan, the salesperson in Zung Fu, for $60,000.  At that time, the mileage of the car had reached over 300,000 km.  She did not tamper with the odometer of the LGV.

6.On 27 August 2013, PW3 Chan of Zung Fu sold the LGV to A2 for the same price, namely, $60,000 and A2 used his company, A1, as the registered car owner.  PW3 Chan recalled that he drove the LGV to the company Luen On Motors [A1] and it was A2 who took possession of the car.  PW3 Chan did not tamper with the odometer of the LGV, and remembered that the mileage was over 200,000 km.

7.PW1 Lam, the victim, testified that on 27 September 2013, he bought the LGV for $120,000 from A1, the company, via its salesperson A3.  The odometer showed the mileage to be around 55,000 km which was one of the factors for him to buy this particular LGV. PW1 said during the sales process, A3 highlighted, inter alia, the low mileage of the car.  On 12 October 2013, PW1 drove the LGV to Zung Fu for key duplication and repair.  From the service record, it transpired that the mileage of the LGV should be over 280,000km.  PW1 Lam produced the photograph of the odometer showing a reading of “059923” km[3]. PW1 called A3 asking for compensation, and eventually a report was made to the Customs and Excise Department.

8.Zung Fu was able to confirm the actual mileage of the car, and the record showed that as of 26 January 2012, the mileage was 283,429 km.

DEFENCE CASE

9.Both A2 and the representative of A1 elected not to give evidence, nor did they have any defence witness.  A3 testified and admitted that he knew the odometer reading of the LGV was around 200,000 to 300,000 km when PW3 Chan drove the LGV to the company.  A3 checked and received the car and it was A2 who settled the purchase price.

10.It was alleged that PW1 Lam knew all along the odometer reading was over 300,000 km at the time he purchased the LGV.  It was said the mileage of the LGV was not one of the considerations for PW1 Lam to buy the car.  It was PW1 Lam who altered the odometer of the car when the former could not get the compensation from the company.

GROUNDS OF APPEAL

A1 - Perfected Grounds of Appeal against Conviction

(1)  The Magistrate erred in finding A1 guilty on the basis of he found A2 knew the odometer of the LGV had been altered.

(2)  The Magistrate erred in finding A1 guilty on the basis that A1 was strictly liable for A3’s action, a salesman employed by A1.

A2 – Perfected Grounds of Appeal against Conviction and Sentence

(1)  The Magistrate erred in finding that A2 had knowledge of the alteration of the odometer as there was no direct evidence to support that finding, and insufficient evidence to draw that inference.

(2)  The sentence imposed was manifestly excessive.

A3 – Perfected Grounds of Appeal against Sentence

(1)  The Magistrate erred in refusing to adopt a non-custodial sentence, and thereby erred in imposing a sentence of 6 months imprisonment.

(2)  The Magistrate erred in not considering adequately or giving sufficient weight to A3’s mitigating factors: A3’s last conviction record occurred in 1983, A3 had a stable occupation and the present offence was an one-off conduct.

(3)  Hence, the 6-month imprisonment is manifestly wrong, excessive and unsafe.

DISCUSSION

11.I will deal with the grounds of appeal against conviction put forward by A1 and A2 in one go.

12.There is no dispute that the odometer reading of the LGV is taken as part of the trade descriptions.  Section 7 of the Trade Descriptions Ordinance [TDO] Cap 362 creates the offence of supplying goods in the course of trade or business to which a false trade description was applied.  The provision does not specify that the purchaser has to rely, solely or collectively, on one particular trade description.  Section 20 of TDO provides that if an offence under TDO is committed by a body corporate, and it is proved that the offence was committed with the consent or connivance or is attributable to the neglect of a person [as specified in subsection 2], that person also commits the offence.  Section 26 provides the statutory defence.  Apparently A1 and A2 did not rely on the section 26 defence as it was suggested that it was PW1 Lam who altered the odometer and fabricated the story to implicate A1 and A2.

13.At the material time, A1 was a private company having a share capital.  A2 was the sole owner shortly after the car transaction, and the sole director of the company.[4]

14.Counsel for A1 an A2 prepared a written submission on additional evidence [dated 27 January 2016]. It was submitted that, “whilst it is apparent from the transcript that PW1 knew the identity of the 2^nd Appellant as he had seen him ‘casually’ in the restaurant of his wife’s uncle for many years, PW1 said he “knew (him) but not very well.” He did not know his surname but “knew that he was the boss of the company” (Luen On).  Although he had seen him at the time of the purchase of the vehicle, PW1 testified that he had not spoken to him either directly or on the phone about the purchase.  He concluded by testifying that, “The boss definitely did not have any contact with us” (meaning PW1 and his wife).  There was no evidence whatsoever that the 2^nd Appellant knew PW1 personally or had ever spoken to him, let alone about the sale of the vehicle to PW1, which the evidence indicated was conducted by the 3^rd Appellant.” [5]

15.Counsel reiterated that, “even if A2 knew the odometer reading when the vehicle was purchased (which was not proven) that does nothing to prove he knew the reading when the vehicle was sold.  The odometer reading was not included in the sales contract.”[6]  It was further submitted that A2 was not involved in the sale to PW1 other than to sign the sales contract, which contained no statement of the mileage on the vehicle.

16.It is well established that a Magistracy appeal is a re-trial on paper.  The trial Magistrate has the advantages of hearing and seeing witnesses testifying in the witness stand so as to properly assess his or her credibility and the weight to be attached thereto. 

17.It seems that at trial, there was no evidence adduced as to the way an odometer of a vehicle can be altered.  There was no evidence to show how much profit or benefits that A3 could pocket.  In my view, from the way the defence was run, it is apparent that A1 and A2 were saying that it was PW1 Lam who altered the odometer and framed them up.  It is not a case whereby the statutory defence under section 26 is run, that is, the commission of the offence was due to certain reasons under s26(1)(a)(i) or reasonable precautions were taken and/or due diligence was exercised.

18.The Magistrate has ruled that both the purchaser PW1 Lam and the original owner of the LGV, PW2 Cheung, were credible and reliable witnesses.  They did not alter the odometer reading which was taken as a trading description.  In my view, it is irrelevant as to whether the low odometer reading was or was not the main concern of the purchaser of the car.  The reading forms part of the trade description, and it is well accepted that the mileage of a second hand car could be one of the factors for the purchaser to consider the price to be paid or whether the second hand car should be bought.  There is no dispute that the actual odometer reading of the LGV was altered.  A2 said he had no part to play, and even suggested that it might well be A3 who acted to alter the odometer reading.

19.In my view, if the Magistrate found the Prosecution witnesses credible witnesses, then the only irresistible and reasonable inference is that the odometer reading was altered whilst the car was still in possession of A1, the company.  A2 was the one who paid PW2 Cheung, the original owner.  As a car dealer since 1988, it would defy common business sense that A2 paid no particular attention to the odometer reading as after all, one would believe that a high mileage of a second hand car would certainly affect its resale value.  There is evidence to suggest that the sale price of $120,000 paid by PW1 Lam was the result of certain bargaining and discussions.  I do not believe that A2, being the sole director of a small car dealing company, would play no part of the sale in this $120,000 deal.  The LGV was sold by PW3 Chan to A2 for $60,000 and the car was registered in A1’s name.  At this stage, the odometer reading of the car had not been altered.[7]  The Magistrate accepted that it was A3, who acted on behalf of A1, impressed PW1 Lam that the LGV had low mileage figure and was a good deal for user.  By then, the odometer reading had been altered to around 55,000 km. 

20.In a way, I do not agree with the Magistrate’s remark that “this is a one-against-one case” [8] as there are other evidence or inference to be drawn which support the premise that the odometer was not altered until PW1 Lam was shown the LGV in the sales process.

21.I cannot see any motive for PW2 Cheung (the original owner) or PW3 Chan (the salesperson of the Mercedes) to alter the odometer.  In fact, PW3 Chan did not make any profit from this transaction as the sale price of $60,000 to A1 was the same as the price that he paid to PW2.  The suggestion that it might be PW3 Chan who altered the odometer or caused the odometer be altered[9] cannot be substantiated.  In fact, A3 did testify that the odometer reading when he first saw the car was around 290,000 to 300,000 km.

22.It is also unbelievable that PW1 Lam would alter the odometer reading of the LGV in order to take revenge of A1 or A3 who refused to compensate the extra repair costs.  First, no one suggested that PW1 Lam has such expertise, nor was it put to PW1 Lam that he caused someone to alter the odometer reading.  Second, would it be a stupid act for PW1 Lam to do so when there existed service record of the car and the other party is a car dealer who theoretically has the expertise and business acumen?

23.Counsel for A1 and A2 submitted that it was “total speculation and not in accordance with the evidence of PW1” when the Respondent suggested that PW1 and A2 were acquaintances who met frequently and it would be unrealistic that they did not talk about the price and mileage of the car.[10]  It was further submitted that “there was no evidence that PW1 and A2 met during the period of negotiations over the sale of the vehicle.”

24.In response, the Respondent submitted that “According to PW1, A2 was a familiar acquaintance, and that they had met when PW1 purchased the subject LGV.  It is when PW1 wanted to confront A2 about the problematic odometer reading that A1 ceased all contacts with him.”[11]  In fact, from the transcript of PW1 Lam’s evidence which is in Chinese[12], PW1 Lam mentioned that A2 went to the restaurant of the uncle of PW1’s wife during the New Year’s time.  PW1 Lam referred A2 as A3’s boss.  PW1 Lam saw A2 when he bought the LGV. Although PW1 Lam claimed that he did not know the name of A2, he knew A2 for many years, and knew that A2 was the boss of a car company.[13]  PW1 identified A2 as the boss of Luen On in court.  PW1 could not contact A2 on 12 October. PW1 even mentioned that the boss dared not to see them.[14]  At that juncture, the prosecutor did not take the chance to ask PW1 to elaborate why the boss dared not to see them.  The boss of the car company [that is A2] refused to see PW1.[15] On the other hand, PW3 Chan testified that A2 did go to see the car personally before the sale of the LGV.[16] PW3 said Madam Cheung [PW2] had many cars and usually they were of high mileage, and there was no exception to this one which should be over 200,000 km.[17]  In my view, it is clear that A2 was actively involved in the sale of the LGV.  He inspected the LGV before PW3 Chan drove the same to his company.  He set the price of the LGV at $128,000.  He was the operator of his car company.  All these factors entitled the Magistrate to find that A2, who was the sole director of A1, did not play a passive or indifferent role in this sale.

25.Counsel for A1 and A2 also submitted that, taking into account of the ex-gratia Government payment, “there was therefore no evidence at trial that the vehicle was not worth $120,000 on the date of delivery to PW1 (8October 2013) even with its genuine higher mileage shown on the odometer given that the ex-gratia payment and scrapping fee were available up to 16 August 2018 and the vehicle could be driven for nearly 5 years until that date.  Effectively, the vehicle could only have cost PW1 $12,800 to be driven for nearly 5 years from the date of purchase by him.”[18] I considered that this ground of appeal has no substance.  The crux of the offence is the false trade description which is the odometer reading of the LGV in the present context.  As to how much benefit one can get from the government ex-gratia payment and scrapping fee, it only goes to the margin of profit or benefits that one can get.  PW1 paid $120,000 for the car, and it was suggested that, with the ex-gratia payment etc, the “real” cost of the car for PW1 was only $12,800 on top of his enjoyment of the car for some 5 years.  The problem is PW1 might not want to dispose of the car in the way portrayed by Counsel.  He might want to keep the car for his personal use.  Had one minded about the government ex-gratia payment, then why PW2 Cheung sold the car at $60,000? She could have pocketed more by not selling her LGV.  Why PW3 Chan, who was the car dealer and should have more shrewdness in the car business, sold the car also at $60,000?  PW3 could have pocketed $87,200 ex-gratia payment and the scrapping fee of $20,000, making a profit of $47,200 by literally doing nothing, but to make the necessary application to the Transport Department.

26.As regards section 20 of TDO, Counsel for A1 and A2 criticised that the Magistrate “gave no proper consideration as to whether the acts of A3 were the acts of the company because he wrongly found that A2 knew of the change of the odometer reading so that the company was therefore liable because A2 was a director.  He did not consider A3’s status or acts separately from A2’s acts.  The TDO does not make expressly or by implication make employers vicariously liable for the acts of their employees.”[19]  It was further submitted that, “The Magistrate therefore erred in convicting A1 and A2 by the methodology he applied.  He did not rely on section 26 of TDO to convict as the case was not presented by the Prosecution ass a case to which section 26 needed to be applied.”[20]

27.In this regard, the Magistrate made the ruling as follows.  He was “satisfied that at the time Mr Chan [PW3] sold the Mercedes Benz goods vehicle to D2, the odometer had not been tampered with.  And D2, being the sole director of D1, would definitely know the mileage figure of the Mercedes Benz goods vehicle when it was bought in, as well as whether the odometer had been tampered with when it was subsequently sold to Mr Lam.  (I am satisfied that) D3 knew (these matters) too.  The offence in this case is of strict liability, but the fact I accept and find is that D2 and D3 knew the odometer in question had been tampered with … As (the vehicle) was sold in such a condition, D2 and D3 had knowingly carried out the said transaction, thus the relevant exemption clause under section 26 would not stand.  Since D2 and D3 were respectively the sole director and salesperson of D1 and what they did were acting on behalf of D1, D2 and D3’s acts were also D1’s acts.”[21]  Accordingly, the Magistrate found all 3 Appellants guilty of the charge. 

28.In my view, although the Magistrate did not mention section 20 of TDO, his reasoning is that A2 (being the sole director of A1) and A3 (being the employee of A1) knowingly sold the car of which the odometer reading had been tampered with.  In that case, it is natural that the statutory defence provision under section 26 will not be applicable.

29.Counsel for A1 and A2 did not dispute that the present offence is an offence of strict liability.  It was contended that there was no evidence to support the proposition of vicarious liability, a principle that is unusual in the arena of criminal offences.  Hence, it was submitted that, “The TDO does not make expressly or by implication make employers vicariously liable for the acts of their employees.  … The Magistrate therefore erred in convicting A1 and A2 by the methodology he applied.” [22]

30.In R v Wong Tak Choy, Litton JA [as he then was], stated clearly that,

“The general principle of our criminal law can hardly be in doubt. A man is not liable to be charged criminally for the act of his servant unless a particular statute imposed this liability upon him by express terms or by implications. … Obviously when it comes to offences created by statute, the general principle of law that an employer is not made criminally responsible for the acts of his servants may be displaced. In order to guard against the happening of a prohibited act, a statute can impose liability upon an employer even though he does not know of and is not a party to the act done by the servant.” [23]

31.In the present case, in August 2013, PW3 Chan sold the car to A2 who eventually made his company A1 as the registered owner of the car.[24]  In September 2013, PW1 Lam bought the car from A1 through A1’s sales person A3.  The Magistrate found that when the car was promoted and later sold to PW1 Lam, A2 and A3 knew that the odometer reading had been altered to around 55,000 km.  A2 was the sole director and 50% owner of A1.  He received the LGV from PW3 Chan and, as a car dealer, should know the actual odometer reading of the LGV at that time.  It should be the case that A2 was also the one who executed or was instrumental to execute the official document to transfer the ownership of the LGV to PW1 on 7 October 2013.[25]  PW1 said on 22 October, he could not locate A2 who even dared not to meet them or refused to meet them.[26]

32.In this context, it is not simply a scenario under section 20 whereby a director or a principal officer of a company was held criminally liable for the acts of the employee.  In my view, the Magistrate relied not just A3’s act to convict A1.  He in fact found that A2, being the alter ego of A1, and A1 being the registered owner of the car when A2 bought the car from PW3 Chan, had a role to play, directly or indirectly, in selling a car with a false trade description, namely, falsified odometer reading.  If A2 was taken to have a role to play in the criminal act, then it is not a case of vicarious liability.  A2 was a party to the act done by A3.  A1 through A2, whom was assisted by or colluded with A3, actually committed the offence. 

33.Based on the above said reasons, the appeal against conviction by A1 and A2 is dismissed.

APPEAL AGAINST SENTENCE BY A2 AND A3

34.Counsel for A2 in his perfected grounds of appeal [dated 20 August 2015] submitted that “the sentence imposed upon the 2^nd Appellant was, in all the circumstances, manifestly excessive – see Reasons for Sentence, p117 et al.”[27]  With respect, this “perfected ground” in fact should be taken as the conclusion of the Appellant’s submissions. 

35.In Counsel’s speaking note of 1 December 2015, it was submitted that “there was no significant loss to the victim.  The vehicle was roadworthy and PW1 could obtain about $107,200 for it and drive it for nearly 5 years.  There was no real danger to the victim or public either as there was nothing to suggest that the vehicle was in any way unroadworthy.  The gain to A2 was also minimal as he could have obtained the same price as PW1 by dismantling the vehicle if he had not sold it to PW1.”  It was further submitted that “the only basis of conviction left was that he [A2] failed to raise sufficient evidence that he had taken all reasonable precautions and exercised all due diligence to prevent the offence being committed by A3 (under section 26(1)) or that he did not know, had no reason to suspect and could not with reasonable diligence have ascertained that the odometer had been altered (under section 26(3).  This would put A2’s offence into an entire different category in terms of sentencing – negligence as opposed to intentional criminal conduct.”[28] Counsel for A2 also criticised the Magistrate for adopting a highly speculative approach when the Magistrate said “there was potential harm to the victim and other road users as the vehicle had done many more kilometers than the figure shown on the odometer.” “There was no Hong Kong guideline quoted to the Magistrate to assist him with sentencing.” [29]

36.Counsel for A3 submitted that this was an one-off event, and

“in light of cases, … that are similar in nature and/or in their factual background to the present case. .. Those which are more serious than the present case … the courts had adopted an imprisonment of less than 6 months or even a non-custodial sentence as sentencing options.”[30]

Counsel for A3 also commented that the Magistrate erred in not giving sufficient weight to A3’s mitigating factors, including the fact that A3’s had not committed any offence since 1983 and the impact of an immediate custodial sentence on A3 and his family.

37.First of all, the Magistrate made the finding by drawing the irresistible inference that both A2 and A3 knew that the odometer reading was altered when the LGV was shown and later sold to PW1.  As such, the statutory defence provision under section 26 does not come into play.

38.When sentencing A2 and A3, the Magistrate stated that,

“Although the defence counsel has pointed out that there was no sentencing guideline in the past, I find that the facts have clearly shown that D2 and D3 committed this offence knowingly. They are, therefore, involved in deception of altering the original mileage reading of over 300,000 kilometers to 55,000 kilometers. Such a difference can be described as shocking …” [31]

The Magistrate further said,

“I have considered the contents of the background reports and the information contained therein. (I) cannot see any special circumstances under which I can deal with D2 and D3 by way of a non-custodial sentence, including community service order and suspended sentence, nor do I see there are any other mitigating factors entitling D2 and D3 to a further discount.” [32]

Then without referring to any authorities or elaborating the reasons, the Magistrate said,

“As to D2, having considered all the circumstances, I am of the view that six months’ imprisonment is appropriate. Since the role played by D3 is equally important in this case, his [sic] is not, in my view, a defendant of lesser culpability, thus six months’ imprisonment is also appropriate.” [33]

39.In R v Robert Richards, Phillip Evans,[34] a case of selling “clocked” cars with false odometer readings, the original sentence of 6 months’ imprisonment was varied to a conditional discharge with compensation orders in one case, on the ground that they had pleaded guilty on the basis that they did not alter the readings, or know that they had been altered.  In R v Keith Waring & Stewart Canning, [35] the Appellants pleaded guilty to 3 counts of applying a false trade description to goods and one of supplying.  They dealt in motor vehicles and spares, and bought 6 vehicles over a period of 11 months and sold them after significantly reducing their mileage readings.  Their sentence of 6 months’ imprisonment was upheld.

40.It was stated in A2’s background report[36] that,

“He [A2] maintained a law-abiding life all along. He entered the workforce at his 16 and started his own business in selling second-hand commercial vehicles since 1988. He is married with 4 children. And the couple worked hard to run their business in order to nurture their children, who are all university graduates with stable employment. Defendant valued family cohesion … He devoted himself to his company and maintained stable clienteles and harmonious relationship with the trading fellows in the past decades.” [37]

41.As regards A3, who had 4 previous but not similar records from 1983 to 1986[38], his background report said that A3

“…entered into workforce at age of 13 and maintained stable employment most of time. He went astray and was under incarceration in 1986. Nevertheless, he decided to start anew and kept his decent life afterwards. … Being a family oriented person and a sole breadwinner, Defendant devoted himself into family’s welfare and worked industriously to sustain family self-sufficiency. … Pertaining to the present offence, Defendant upheld that he was innocent.” [39]

42.The Respondent submitted the facts of this case showed that the “custody threshold principle” was crossed as A2 and A3 were found by the Magistrate to be rogue traders, and that the Magistrate was “entitled to take into account his well founded concern about the safety to the victim and road users, and to conclude, having noted all the mitigating factors, that an immediate 6 months custodial sentence as a deterrent appropriate in the circumstances of this case.” [40]

43.In my view, there is no evidence adduced to show that a drastically reduced odometer reading would inevitably cause serious concern to the safety and well being of the victim and other road users, although such an assertion, prima facie, can be taken as a matter of high likelihood.  But what if such a second-hand car is subject to regular and consistent check-ups and examinations, and repairs were made?  In the present case, the odometer reading was altered to 55,000 km with a difference of some 245,000 km.  The Magistrate described such an alteration ‘shocking’.

44.Be that as it may, I accept that this was an one-off event, and that, after taking into account of the government’s ex-gratia payment and scrapping fee, the loss suffered by the victim was not that significant.  In the circumstances, I am prepared to treat A2 leniently as he had a clear record, and there is no direct evidence to suggest that he was the one who altered the odometer.  As such, I would reduce the original term of 6 months imprisonment to 3 months, but suspend the sentence for 2 years.

45.As regards A3, he had previous criminal records.  He was the frontline salesperson who handled PW1 Lam, and eventually succeeded to convince PW1 that the car was a good buy. A3 was convicted after trial, and the Magistrate considered that A3’s mitigations did not warrant any discount from sentence.  A3 did not show any sense of remorsefulness and maintained that he was innocent, as indicated in his background report.[41]  This court has to consider the effect of passing a deterrent sentence so that anyone attempting to do similar “mileage clocking” should be expected to face punishment severely.  That said, I take into account of A3’s mitigating factors, and the fact that this was an one-off event, I reduce the sentence from 6 months to 3 months’ imprisonment.

CONCLUSION

46.Based on the reasons abovesaid, I dismiss the appeal against conviction by A1 and A2; but allow the appeal against sentence by A2 and A3.  In substituting the original sentences, I sentence A2 to 3 months’ imprisonment, to be suspended for 2 years; and A3 to 3 months’ imprisonment.

Ms Bianca Cheng, Assistant Director of Public Prosecutions of the Department of Justice, for the Respondent, HKSAR

Mr Daniel Marash SC leading Mr Simon Ng, instructed by Lau, Chan & Ko for the 1^st and 2^nd appellants

Mr Lawrence LOK SC leading Mr Andy Mak, instructed by Bobby Tse & Co. for the 3^rd appellant