HKSAR v. Wong Ka Fai

DCCC 1113/2018

[2019] HKDC 264

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO. 1113 OF 2018

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Reasons for Sentence

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Charges

1.The Defendant pleads guilty to the following charges:

(1) Theft of a taxi (Charge 1);

(2) Driving whilst disqualified (Charge 2);

(3) Driving without a valid driving licence (Charge 3);

(4) Using a motor vehicle without third party insurance (Charge 4).

Facts

2.Eagle Star (Asia) Limited owns a taxi (registration no. KB 7159) (the "Taxi").  Since 2014, it has been leased out via agent to a nightshift taxi driver (PW1) and a dayshift taxi driver (PW2).  The 4 keys of the Taxi were respectively kept with PW1, PW2, the agent and under the carpet beneath the Taxi's driver seat.

3.At 1:30 a.m, on 21 September 2018, PW1 parked the Taxi outside the Park’n Shop at No. 13-23 Nam Ning Street, Aberdeen.  PW1 turned off the engine and placed a car key beneath the driver seat carpet.  He locked the car but without checking if the Taxi was really locked.  At 7a.m. on the same day, PW2 arrived at the above location but the Taxi could not be found.

4.At 4:50 p.m. on 11 October 2018, police officers found the Taxi parked at the junction of Ying Yeung Street and Mok Cheong Street, To Kwa Wan.  At 6:40p.m. on the same day, Defendant was walking around the Taxi.  He later opened the Taxi's driver door, entered the Taxi for 2-3 seconds and then left the Taxi. The Defendant was intercepted and arrested.  Under caution at scene, the Defendant admitted to stealing the Taxi out of greed and for using and driving it himself.

5.In the subsequent video- recorded interview, he admitted that:

(i) On the offence date, he walked over to the Nam Ning Street Park’n Shop, whereat he stole the Taxi which was parked by a taxi driver after work;

(ii) At about 1:15a.m., he opened the Taxi door and found a car key beneath the carpet; he turned on the engine and drove it to somewhere near to his girlfriend's home;

(iii) Since 22 September 2018, he drove the Taxi at 7a.m. every morning to a parking spot, and drove it at 7p.m. every night for an hour;

(iv) He drove around Kowloon City and To Kwa Wan, wishing to pick up passengers, but he did not know the way;

(v) He had never picked up any passengers with the Taxi;

(vi) He placed the Taxi's key in the handle of the driver's door and had never given it to anyone.

6.The Defendant only had private car licence and light goods vehicle licence but had no taxi licence.  Also, the Defendant is disqualified from driving all classes of vehicles up to 19 December 2019.

7.The Taxi currently has a third party insurance which will expire on 29 May 2019. However, the insurance policy only applies to drivers who is:

(i) The policyholder or the vehicle hirer or those who drive under their employment, order or permission;

(ii) Holding valid licence to drive the vehicle; and

(iii) Not disqualified for holding or obtaining such a licence.

Criminal records and road traffic records

8.He had many criminal records of different kinds.  Relevant to the present offences are the following in chronological order:

(1) Theft (fined in 1994);

(2) Permitting other person to use a motor vehicle on a road without third party insurance (sentenced to 2 months and disqualified from driving for 12 months in March 2005);

(3) Using a motor vehicle on a road without third party insurance (sentenced to 2 months and disqualified from driving for 12 months in September 2005);

(4) Taking conveyance without authority (sentenced to 6 months in November 2012);

(5) Using a motor vehicle on a road without third party insurance (sentenced to 3 months and disqualified from driving for 12 months in November 2012);

(6) Using a motor vehicle on a road without third party insurance (sentenced to 4 weeks and disqualified from driving for 12 months in May 2014);

(7) Driving whilst disqualified (sentenced to 2 months in May 2014);

(8) Two counts of attempted theft (each sentenced to 6 months in December 2016);

(9) Theft (sentenced to 26 months);

(10) Three counts of driving without a valid driving licence (each sentenced to 40 days in December 2016);

(11) Using a motor vehicle on a road without third party insurance (sentenced to 6 months and disqualified for 3 years in December 2016);

(12) Four counts of theft (each sentenced to 26 months in December 2016);

(13) Driving without a valid driving licence (sentenced to 40 days in December 2016);

(14) Two counts of using a motor vehicle on a road without third party insurance (each sentenced to 6 months and disqualified for 3 years in December 2016).

9.His driving records show the following moving contraventions in chronological order:

(1) Careless driving (offence dated August 2012);

(2) Failing to comply with traffic signals (offence dated September 2012);

(3) Three counts of driving in excess of 30 km/h but not more than 45 km/h (offences dated 3 days between September and October 2012);

(4) Dangerous driving (sentenced to 6 months and disqualified from driving or 6 months in May 2014);

(5) Failing to comply with traffic signals (offence dated August 2015);

(6) Failing to comply with traffic signs (offence dated December 2015);

(7) Driving in excess of 15 km/h but not more than 30 km/h (offence dated January 2016).

Mitigation

10.He is 43 years of age, of F. 1 education level.  He was a gardener before arrest.  His income was $10,300 a month.  He lived with his girlfriend and her two daughters.  His parents had retired.  He paid $2,000 per month to them. 

11.His counsel Mr. Woon submits that the theft was not preplanned.  The Defendant was not part of a crime syndicate.  The Taxi was not for sending or selling to others. There was no damage to the Taxi.  It was not properly locked, so that the Defendant could open the door without tools.  He had driven it around Kowloon City and To Kwan Wan, hoping to pick up passengers but without success.   He did not replace the licence plates.  The Taxi could be discovered by the police soon.

Sentencing considerations

12.His previous penalties have apparently failed to deter him from reoffending.  The court has a duty to protect the public by imposing sentences of more deterrence (HKSAR v Chan Pui-chi [1992] 2 HKLRD 830). 

13.On the issue of disqualification from driving a motor vehicle, s. 44 and s. 69 of Road Traffic Ordinance, Cap. 374 are both relevant as follows:

44. Disqualification on conviction of certain offences

(1)Without prejudice to any other provision relating to the penalty that may be, or is required to be, imposed for an offence, a court or magistrate before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court or magistrate thinks fit—

…

(c) stealing a motor vehicle…

69. Offence of obtaining licence, or driving, while disqualified

(1)A person disqualified from holding or obtaining a driving licence who—

(a)obtains a driving licence while he is disqualified; or

(b)while he is disqualified drives on a road a motor vehicle or, if the disqualification is limited to the driving of a motor vehicle of a particular class, a motor vehicle of that class, commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months.

(2)If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified—

(a)in the case of a first conviction, for a period of not less than 12 months; and

(b)in the case of a second or subsequent conviction, or a conviction subsequent to a conviction under section 25 of the repealed Ordinance, for a period of not less than 3 years, unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.

(3)The period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.

14.In HKSAR v Yeung Chi-wa [2018] HKCA 73, a defendant stole a taxi that he had driven before and thereby retained a set of duplicate key.  He altered the licence plates with intent to deceive and carried customers for fare.  Needless to say, there was no third party insurance cover.  The taxi was discovered about 6 weeks later.  The Court of Appeal approved an overall sentence of 2 years 8 months on a guilty plea to all charges. 

Sentencing the Defendant

15.He was apprehended after 3 weeks of the theft.  This period represented a financial loss to the taxi owner.  He had no third party insurance to cover his driving during that period of time.  Given his previous records for moving contraventions, he would have been a road hazard to other road-users without third party insurance cover.  He had driven it around to try to pick up customers and give free rides to his girlfriend and her daughters.  It was fortunate that no known accident or casualty was occasioned by him.   

16.Charge 1 (theft of a taxi), I have to take into account four main features.  The first feature is his having to drive the taxi away when stealing it.  He had a poor road traffic record in terms of moving contraventions.  That act of driving also brought in all the other offences herein.  The second feature is that the third party insurance did not cover an unauthorized person like him to drive the taxi.  The third feature is that he was disqualified from driving at that time.  The fourth feature is that he had no valid driving licence.  I find it virtually impossible to assign an individual length of sentence to each feature in the exercise of determining a starting point.  I take a starting point of 36 months for all such features together, and increase it by 6 months to address his persistent reoffending.   The actual starting point is 42 months.  After a one-third discount for his plea of guilty, the sentence is 28 months. 

17.On the facts of Charge 2 (driving whilst disqualified), and Charge 4 (using a motor vehicle without third party insurance), I take a starting point of 36 weeks each.  There is an extra 6 weeks due to his persistent reoffending.  The actual starting point is 42 weeks.  After a one-third discount for his plea of guilty, the sentence is 28 weeks each. 

18.On the facts of Charge 3 (driving without a valid driving licence), I take a starting point of 18 weeks.  There is an extra 3 weeks for his persistent reoffending. The actual starting point is 21 weeks.  After a one-third discount for his plea of guilty, the sentence is 14 weeks. 

19.The sentences shall be concurrent.  The overall sentence is 28 months.   

20.There is no special reason not to order disqualification.  I order disqualification for 1 year 6 months in respect of each of Charge 1 (theft of a taxi) and Charge 4 (using a motor vehicle without third party insurance).  The terms shall be concurrent. 

21.This being a subsequent conviction, I order disqualification for 3 years in respect of Charge 2 (driving whilst disqualified).  By law, it has to be consecutive to other terms of disqualification. 

22.The total length of disqualification is therefore 4 years 6 months.