HKSAR v. Tong Yiu Wah

DCCC 444/2016

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 444 OF 2016

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REASONS FOR SENTENCE

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1.The defendant pleaded guilty to the 4^th and 5^th Charges:-

4^th Charge: Driving a motor vehicle for the carriage of passengers for hire or reward without a valid hire car permit, contrary to section 52(3) and (10) (a) of the Road Traffic Ordinance, Cap 374 and;

5^th Charge: Using a motor vehicle without third party insurance, contrary to section 4(1) and 2(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272.

2.The facts of the case are sufficiently canvassed in the amended summary of facts (for 4^th and 5^th Charges only) and my reasons for verdict (for 1^st to 3^rd Charges) which I am not going to repeat here.

Mitigation

3.The defendant is 68 years old and has been working as a taxi and “limo” driver for living.  He is divorced with two grown-up children who give him several thousand dollars per month.  The defendant is living with a cohabitee Miss Hon for some 28 years in a public housing estate.  I am told that the defendant was suffering from back pain and sleep Apnea while Miss Hon suffered from depression and serious spiral problem causing her on wheel chair and need regular medication and consultation.  It was mitigated that around the material time, the defendant has spent most of his money on the medical treatment of Miss Hon and therefore he committed the present offences.  I have also considered the mitigation letter written by Miss Hon commending the defendant as a caring partner and how much she needed him for living.

4.The defendant has a long list of criminal records since 1960 until 2012.  He has about 50 criminal convictions on 39 occasions of court appearance.  He was convicted on 14 times of the offence of “Offering service without permission of Direction of Civil Aviation” and sentenced from fine to weeks of imprisonment.  He was also convicted of “Over-charging” for 2 times and failing to use a taxi meter and once of soliciting passengers in 1993 which to me are of similar nature as the present offences.  He was lastly sentenced to 18 days’ imprisonment for the offence of “Offering service without permission” of the airport.

Sentence

5.In respect of the 4^th Charge, the defendant is liable in the case of a first conviction for that offence to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $10,000 and to imprisonment for 6 months.

6.The defendant’s way of doing his driving business was certainly disgraceful and deceiful.  The offence was calculated as well.  Different sets of name cards and price lists were prepared.  The defendant told the court that it was always his practice not telling the customers the fare until they boarded his car.  In the present case, the defendant even charged an additional and unreasonable toll fee of HK$700 apart from the unreasonably high fare of HK$2,800 he originally told PW1.  The defendant basically took all the cash PW1 had at the time, that was US$500.  The defendant was utterly greedy. 

7.Obviously, the circumstances that the luggage was kept in defendant’s car made the customers more easily succumb to his request of whatever amount of unreasonable charge.  The defendant apparently targeted at foreigner customers who had less knowledge about HK and would feel less secured to voice out their mind at a place new to them.  What the defendant did certainly damage HK’s reputation as a sound international service provider.  What the defendant  had done also immensely disappointed and troubled PW1 and ruined her whole journey in HK.  Needless to say, the extent of overcharging is appalling.  It was several times the normal charge one would expect, even accepting the defendant’s so-call “limo” service may charge higher than normal taxi.

8.The defendant was previously convicted of offences of similar nature on a number of occasions.  Obviously, he has not have his lesson learnt from the previous sentences he received.

9.Having considered all the circumstances as well as all the mitigations put forward on behalf of the defendant by his counsel, I am of the view that the present case was one of the worst type of the same offence.  I therefore take a starting point of 9 weeks’ imprisonment.  After 1/3 discount due to his own guilty plea, the sentence is reduced to 6 weeks’ imprisonment.

10.Regarding the 5^th Charge, the defendant is liable to a fine of $10,000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.

11.For the 5^th Charge, what the defendant did obviously put his passengers at great risk.  Having considered all the circumstances, I sentence the defendant to a fine of $8,000 and disqualify him from driving for 2 years of all types of vehicles.