HKSAR v. Tsang Kwun Wing

CACC89/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO.89 OF 2004

(ON APPEAL FROM DCCC 1263 OF 2003)

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BETWEEN

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Before : Hon Stuart-Moore VP and Pang J

Date of Hearing : 14 September 2004

Date of Judgment : 14 September 2004

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court) :

Background

1.On 19 February 2004, the applicant pleaded guilty before Judge W. Wong in the District Court to seven charges arising from the theft and subsequent use for hire of a taxi.  For the theft (charge 1), the applicant, aged 40, was sentenced to two years’ imprisonment.  Concurrent sentences of two years’ imprisonment were imposed in respect of four charges of forgery of documents, contrary to section 111(1)(a) of the Road Traffic Ordinance, Cap.374 (charges 2 to 5).

2.The forged documents referred to in charges 2 to 5 were two sets of registration plates and two motor vehicle licences.  The applicant purchased the registration plates (for vehicles KB 1913 and JU 1311) in Hong Kong.  The two forged vehicle licences were made in the Mainland.  The applicant needed these to facilitate his driving of the taxi, the subject of charge 1, which he had stolen on 16 November 2002.

3.The applicant was not arrested until 16 October 2003 when the stolen taxi, bearing the false plates KB 1913, was seen by another taxi driver to be displaying the same registration number as his cousin’s taxi.  Police were informed.  The applicant admitted stealing the taxi almost a year beforehand and to having made a living since then by masquerading as a genuine taxi driver.

4.In respect of these five offences, the judge took a starting point of three years’ imprisonment which was reduced to two years to reflect the pleas of guilty.

5.Very properly, Mr Kelly, on the applicant’s behalf, made no complaint in respect of these sentences.

6.There were, however, two further charges to which the applicant pleaded guilty.  These were for using a motor vehicle without third party insurance, contrary to section 4(1) and (2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272 (charge 6) and driving an unlicensed vehicle, contrary to section 52(1)(a) and (10)(a) of the Road Traffic Ordinance, Cap.374 (charge 7).  For each of these offences, the judge selected the maximum starting point of twelve months and three months’ imprisonment respectively.  Again, a discount of one-third was applied to each sentence and they were ordered to run concurrently to each other but consecutively to the combined sentence of two years’ imprisonment on the other charges.  In the result, therefore, the applicant was ordered to serve two years and eight months’ imprisonment.

The application

7.Mr Kelly submitted that with regard to the sentences on charges 6 and 7, the totality of the applicant’s sentence was disproportionate to his overall criminality.  Mr Kelly argued with specific reference to these charges that they related to offences which had arisen out of the same set of facts as the earlier charges and should, in such circumstances, not have attracted an additional term of imprisonment.

8.In passing sentence, the judge had remarked that the serious nature of the case was not only the theft of the taxi but the fact that the applicant had been driving it for many months without insurance.  The applicant, who has been fined on five previous occasions for a variety of road traffic offences, was aware of the gravity of these offences.

9.We are unable to agree with Mr Kelly that the judge erred either in the starting points which he adopted for these two offences or in his decision to make consecutive terms of imprisonment to those imposed on charges 1 to 5.  The applicant had no insurance to drive this stolen taxi and he was unlawfully driving it for a very considerable time.  Whilst the offence of driving without insurance had arisen because the applicant was driving the stolen vehicle, and in this sense arose from the theft allegation, he created by doing so a serious hazard to other road users in general.  The theft of the taxi will, no doubt, have been a major inconvenience to its owner but the offence in charge 6 affected the road-using public at large.  In our view, the judge was entitled to have taken the course which he did.

Conclusion

10.Accordingly, this application is dismissed.

Mr Vincent Wong, SGC, of Department of Justice, for the Respondent

Mr Shaun P. Kelly, instructed by Director of Legal Aid, for the Applicant