HKSAR v. Ejiobu Lazarus

HCMA 334/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 334 OF 2016

(ON APPEAL FROM TWCC NO 1110 OF 2016)

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J U D G M E N T

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1.The appellant, Mr Ejiobu Lazarus, was charged with four charges, namely:

(1)  Taking conveyance without authority;

(2)  Driving without a driving licence;

(3)  Using a vehicle without third party insurance; and

(4)  Failing to comply with traffic sign.

The appellant pleaded guilty to all four charges for Mr K H Cheang, Acting Principal Magistrate. 

2.The learned magistrate, having given appellant the usual discount for his guilty pleas, imposed the following sentences:

(1)   Charge 1: 5 months’ imprisonment;

(2)   Charge 2: 3 weeks’ imprisonment;

(3)   Charge 3: 2 months’ imprisonment and a disqualification order for 12 months; and

(4)   Charge 4: A fine of $500.

3.After taking into consideration the totality principle, the learned magistrate ordered the custodial sentences imposed in Charges 1, 2 and 3 to run concurrently with each other. 

4.The appellant now appeals against the sentences imposed in Charges 1, 2 and 3.

5.The facts admitted by the appellant revealed that at about 7.52 pm on 24 May 2016, the police officers saw the appellant driving a private car, displaying a registration mark UB 9124 at Container Port Road, Tsing Yi,  New Territories. 

6.The appellant made an illegal right turn into Kwai Fung Crescent where a sign post prohibiting a right turn was erected (Charge 4).  The officer, therefore, chased after the appellant who tried to flee by jumping out of the car and running on foot.  The officer and his colleagues eventually intercepted the appellant outside Fook Yip Building, 53-57 Kwai Fung Crescent, Tsing Yi, New Territories.  Upon inquiry, the appellant admitted that he did not have any driving licence (Charge 2).

7.The owner of the car told the police in a subsequent investigation that:

(1)   He did not lend the car to anyone or authorised the appellant to drive the car;

(2)   He last saw his car about 2 pm on 24 May 2016 when the car was parked outside Japan Global D & R Car Parts Trading Company Limited near Pat Heung Police Station, Kam Tin Road, Pat Heung, New Territories;

(3)   He left the car keys in the car;

(4)   He left the car unlocked; and

(5)   He came to know the appellant through a friend.

8.The appellant admitted under caution that on the date in question he took the car at 6:45 pm at Pat Heung without the permission of the car owner. He said the car keys were already in the car when he took it. 

9.The relevant insurance company confirmed that the car was not covered by third party insurance policy if the driver did not have a valid driving licence (Charge 3).

10.In mitigation, the learned magistrate was told the appellant lived in Yuen Long.  On the day in question, he visited his friend in Pat Heung. As the appellant realised he was late for church, out of stupidity he took his friend’s car without authority and committed the offences in question.

11.The learned magistrate set out his reasons for sentence in paras 10 to 14 of his reasons for sentence.  He considered the case R v Tam Simon HCMA 489 & 490 of 1996.  In that case, Patrick Chan J (as he then was) said in para 10 of the judgment:

“In case of Leung Yam Hung, the Court of Appeal, having quashed a conviction of a more serious charge, substituted a 6 month imprisonment on a plea, which came only in the course of the trial, to taking conveyance without authority. Silke JA said at page 4:

‘The sentence passed upon the taking of the conveyance charge was one of 12 months’ imprisonment.  One of the reasons given by the trial judge, based on the matter as it then stood before him, for the passing of this sentence was that there is a distinction to be drawn between taking a car for a joy-ride and taking one for the purpose of committing a serious crime.  He felt that the taking away here fell into the second category.  That reason has, of course, now gone.  We think that a sentence of in or about 6 months would have been the appropriate for an isolated charge of this nature without the overlay of the taking of the car for the purpose of participation in a serious criminal offence.’ ”

In para 12:

“Apart from these cases, I do not think there are any authorities setting down the usual tariff for taking conveyance of vehicles. Both counsel had not referred me to any such authority. It does appear that there can be a wide range in the sentence for such offence, ranging from the case of a person taking a car for a joy-ride at one end to a person taking a car in connection with the participation of a serious crime at the other. One has to bear in mind that the maximum penalty upon a conviction on indictment is 7 years. Without setting a guideline for this type of offence, I should think that the sentence of 6 to 12 months imposed in the present case after a plea cannot be regarded in any way as wrong in principle or manifestly excessive.”

12.The learned magistrate also considered the case of HKSAR v Ngan Tin Hung (顏天雄) HCMA 647/2011 in which R v Tam Simon was also referred to.  In the case of Ngan, Deputy High Court Judge Albert Wong (as he then was) having given credit to the guilty pleas of the appellant, imposed sentences of: (1) 8 months’ imprisonment for the charge of taking conveyance without authority; (2) 40 days for the charge of driving without a driving licence; and (3) 3 months and disqualification for 24 months for using a vehicle without third party insurance.

13.In sentencing the appellant, the learned magistrate had borne in mind the clear record of the appellant, and after giving the appellant the usual one-third reduction for his guilty pleas, the learned magistrate sentenced the appellant to 5 months’ imprisonment for Charge 1; 3 weeks’ imprisonment for Charge 2; and 2 months’ imprisonment and a disqualification order for 12 months in respect of Charge 3.  In other words, for Charge 1, a starting point 7½ months before plea was taken by the learned magistrate; and for Charge 2, a starting point of 4½ weeks before plea was considered and adopted; and as for Charge 3, a starting point of 3 months’ imprisonment before plea was adopted.

14.The magistrate indicated that apart from the guilty pleas of the defendant, he could not see there being any other valid mitigating factors justifying a further reduction in sentence.  Bearing totality in mind, the magistrate ordered all the custodial sentences imposed in Charges 1, 2 and 3 to run wholly concurrently.

15.The appellant in his homemade grounds of appeal and in his oral submissions in court, apologised for his wrongdoing and promised that he would not repeat the same.  He asked me to reduce the sentences passed on him.  Apart from his apology and promise not to reoffend, the appellant could put forward no other grounds of appeal against sentence.

16.Mr Wong for the respondent submits that the offence of taking of conveyance without authority committed by the appellant is a serious offence, more so when the appellant was driving without licence and, hence, not cover by third party insurance.  The facts also show that the appellant failed to comply with a traffic sign.  The magistrate had rightly referred to and considered the case of Ngan Tin Hung in which a sentence of 8 months’ imprisonment was imposed for the charge of taking a conveyance without authority.  Mr Wong submits that the sentences passed on the appellant are not wrong in principle nor are the sentences manifestly excessive.

17.I have heard what the appellant says in court and considered the submissions made by Mr Wong for the respondent.  The appellant, apart from offering his apology and making a promise that he will not reoffend in the future, he cannot, in substance, offer any valid grounds of appeal against sentence.

18.The magistrate in sentencing the appellant to a total term of 5 months’ imprisonment took correctly into account the facts of the case and the fact that the appellant had a clear record. 

19.I have considered the facts of HKSAR v Ngan Tin Hung, the facts of Ngan were more serious than the facts revealed in the present case.  In my judgment, the magistrate was right to impose a sentence more lenient than the sentence imposed by the court in Ngan.  The 7½ month starting point before plea taken by the magistrate for Charge 1 is neither wrong in principle nor excessive.  The magistrate was correct to impose wholly concurrent sentences for Charges 1, 2 and 3.

20.The appellant is unable to put forward any valid grounds of appeal.  On my part, I see no reason or grounds to disturb what are otherwise proper and correct sentences passed by the learned magistrate on the appellant. 

21.For the reasons given, the appeal against sentence is dismissed.

Mr Wong Chun-Hin Derek, Senior Public Prosecutor of the Department of Justice, for the respondent

The appellant appeared in person