HKSAR v. Wong Wah Wai

HCMA 600/2017

[2018] HKCFI 18

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 600 OF 2017

(ON APPEAL FROM ESCC 2598 OF 2015)

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J U D G M E N T

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1.The appellant pleaded guilty before the learned Principal Magistrate (“the magistrate”) at Eastern Magistracy to the following charges: Charge 1, charging of taxi hiring fare exceeding prescribed scale of fares; Charge 2, failing to move the taxi meter indicator; Charge 3, picking up passenger in a restricted zone; Charge 4, using a motor vehicle with windscreen cracked; Charge 5, using a motor vehicle with rear row passenger seat cushion torn; and Charge 6, failing to display registration mark on the table showing in English and in Chinese characters the scale of fares.

2.The appellant was sentenced as follows: Charge 1, four months’ imprisonment and disqualified from driving a taxi for six months; Charge 2, two months’ imprisonment; Charge 3, fined $450; Charge 4, fined $500; Charge 5, fined $500; and Charge 6, fined $500.  The sentences for Charge 1 and Charge 2 were ordered to run concurrently, making a total sentence of four months’ imprisonment and disqualified from driving a taxi for six months.

3.The appellant now appeals against his sentences.  In his Form 102, he indicated that he only appealed against the sentences in Charge 1 and Charge 2.

The facts of the case

4.I would adopt the prosecution case as summarised by the respondent in relation to the two relevant charges.  In summary, on 8 June 2017, an undercover police team acting as Mainland tourists hailed a taxi at Peak Road near Findlay Road, Hong Kong.  This is a restricted area.  The undercover police said that they wanted to go to Rosedale Hotel, No 8 Shelter Road.  The appellant asked for $400.  The normal fare should be around $90.  The police boarded the taxi.  The appellant did not move the taxi meter indicator to recording position after starting the journey.  At the destination, the undercover police gave the appellant $500 and received $100 back.  The undercover police were therefore overcharged by $310.

5.At the hearing before the magistrate, the appellant was represented by a private lawyer.  In the present proceedings, he is unrepresented.

6.The appellant has a criminal record and a traffic conviction record.  The magistrate noted that the appellant had 65 previous criminal convictions in 33 court appearances of which, in five court appearances, he had convictions for offences identical to Charge 1 and Charge 2, the most recent being on 21 March 2016, when he was sentenced to three months’ imprisonment and disqualified from driving for six months for overcharging, and to four weeks’ imprisonment for failing to move taxi meter indicator.

7.Before the magistrate, mitigation was put forward that the appellant, aged 64, had separated from his wife for some 20 years. Two years ago, he started to cohabit with his girlfriend in Shenzhen.  She was due to deliver their baby in November this year.  The appellant had been a taxi driver for about 40 years and was earning around $12,000 to $15,000 a month. Counsel for the appellant in the court below asked the court to give the appellant a chance so that he could see the birth of his child and to take care of his girlfriend.  It was said that given the appellant was a professional driver, his traffic record could not be considered a bad traffic record.

The magistrate’s reasons for sentence

8.The magistrate stated that there is no tariff or guideline of sentence for offences of this nature.  She relied on R v Tsang Kwok Ho, HCMA 793/1988 where Barnes J said, when referring to R v Leung Pui-ming, HCMA 337/1988, at paragraph 9:

“On appeal, Bewley J, whilst agreeing with the Magistrate that it was a serious matter affecting the reputation of Hong Kong as a tourist centre and that of its taxi drivers, nevertheless thought that although a prison sentence was warranted, 6 months was excessive in the circumstances and he reduced the sentence to one of 4 months’ imprisonment.”

9.Barnes J allowed the appeal against sentence and reduced the sentence to 3 months’ imprisonment. It is to be noted that the appellant in R v Tsang Kwok Ho did not have any similar records. 

10.The magistrate observed that there was an upward trend for overcharging cases.  She was of the view that overcharging of taxi fares in itself is a serious offence and choosing tourists as targets would seriously tarnish the image of Hong Kong.  Referring to the appellant’s traffic conviction as “appalling”, the magistrate further observed that the previous sentences had not deterred him from reoffending.  She therefore used six months’ imprisonment as a starting point for Charge 1 and three months’ imprisonment for Charge 2.  The magistrate gave the appellant the usual one-third discount to reflect his plea of guilty.

The grounds of appeal

11.The grounds of appeal of the appellant were indeed a repetition of the mitigation which was made at the sentencing hearing.  The grounds of appeal, put simply, were that the sentences were too severe and he needed to take care of his girlfriend who was about to deliver their baby.  Today, the appellant updates the court that his girlfriend already gave birth to a baby a few days ago.  The appellant says his girlfriend has no relatives in Shenzhen and nobody is taking care of her.  Only some of the appellant’s friends would visit her.  He asks to be released so that he could take care of his girlfriend.

The court’s view

12.It is noted that six months’ imprisonment is the statutory maximum term of imprisonment for Charge 1 and Charge 2, respectively. Therefore, the magistrate has adopted the statutory maximum term as the starting point for Charge 1.  The statutory maximum sentence should normally be reserved for the worst realistically envisageable case of its kind.

13.The issue is whether the magistrate was correct in adopting the statutory maximum term of imprisonment as the starting point for Charge 1 in the present case.

14.In my judgment, the magistrate was entirely proper in doing so.  I respectfully agree with the magistrate’s observation that taxi drivers who prey on innocent tourists bring disrepute to Hong Kong’s image and also to taxi drivers.  Choosing tourists as targets would seriously tarnish the image of Hong Kong.  The magistrate noted that the offences occurred on a regular basis.  In my view, with her vast experience in the plea court of the Eastern Magistracy, she was in a position to make such an observation.

15.The appellant was not a first offender of these two offences.  In my judgment, the magistrate was entirely correct to describe the appellant’s traffic record as “appalling”.

16.The appellant is indeed a persistent offender. He has a record of five similar offences.  He received his first custodial sentence for such offences in 2013, the second in the same year, and the third in March 2014.  He was last sentenced to three months’ imprisonment on his last conviction for similar offences in March 2016.  Obviously, the previous level of penalties has not deterred him from committing the offences again.  A deterrent sentence, and indeed a more severe one is warranted to deter him from reoffending.  It should be noted that a statutory maximum sentence for Charge 1 is relatively low.

17.In all the circumstances of the present case, in my judgment a starting point of six months for Charge 1 cannot be said to be manifestly excessively or wrong in principle.  The magistrate has duly given the appellant the appropriate discount for his guilty plea.  The length of the disqualification order is also appropriate.

18.While it is appreciated that the appellant’s care and assistance to his girlfriend who has just given birth to a baby would be desirable, this cannot be a valid mitigating factor in the circumstances of the present case.

The result

19.The overall sentences in Charge 1 and Charge 2 are neither manifestly excessive nor wrong in principle.  Accordingly, the appeal against sentence is dismissed.

Mr Prakash L Daryanani, SPP of the Department of Justice, for the respondent

The appellant appeared in person