HKSAR v. Cheung Chun Pui

DCCC 879/2014

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 879 OF 2014

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REASONS FOR SENTENCE

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1.The defendant has pleaded guilty to 8 charges. The first charge involved the theft of a taxi and the remaining 7 charges arises out of the defendant’s use of that taxi which in turn involved displaying false number plates and a false licence disc.  The taxi was also used by the defendant without there being in force a valid third party insurance policy.

2.The facts are set out in the amended summary of facts dated 20 November 2014.  I do not propose to recite those facts.  Suffice it to say the loss of the taxi by its owner no doubt caused a major inconvenience to the owner.  The value of the taxi at the time it was stolen was estimated at HK$140,000.00

3.The defendant by using false number plates and procuring the forged vehicle licence disc on the Mainland had gone to considerable lengths to conceal the true identity of the taxi.  In that way the defendant had for a period of about a year been able to make a living thus denying the opportunity to the real owner to earn a living from the vehicle.

4.The offences may have remained undetected had it not been for the traffic incident in Kwun Tong on 26 March 2014 and the vigilance, observation and actions of the off duty police constable PC 58991 who is to be commended.

5.I was informed by Mr Leung in respect of the taxi involved in the traffic incident on 26^th March driven by a Mr Ho no serious damage was caused to the taxi PY 1575 and no compensation has been claimed.

6.In addition whilst there was some damage to PH 4670 (the stolen taxi) this again is minor.

7.The defendant has two previous criminal convictions but these were in 1991 and are now spent convictions and I shall ignore them for the purpose of sentencing.

8.The defendant also has a number of road traffic convictions but these all relate to speeding.  They occurred between 2005 and 2010 and although generally speeding is a serious matter again I do not consider they have a bearing on the present offences.

9.In mitigation Mr Wong who appears for the defendant has set out the defendant’s person background and circumstances which reveal he is a family man and had previously been working as a taxi driver (albeit as a substitute driver) for about 10 years.

10.Mr Wong submits the defendant is remorseful for what he has done. Nevertheless the theft of the taxi the use of the false number plates and the procurement of a false licence disc shows careful palnning on the part of the defendant to earn a living at someone else’s expense and in doing so by reason of driving the taxi without third party insurance to create a serious hazard to other road users.

11.I have been referred to two sentencing authorities.

12.In HKSAR and Tsang Kwun Wing CACC 89/2004 the facts were very similar to the present case.  Sentences of two years (reduced from 3 as a result of the plea of guilty) for the theft of the taxi and an offence contrary to section 111(1)(a) of the Road Traffic Ordinance Cap 374 were approved although I note the starting point for the offence contrary to section 111(1)(a) was the maximum prescribed by the Ordinance.

13.There were two further charges in that case one for using a motor vehicle without third party insurance for which a starting point of 12 months (again the maximum prescribed by the Ordinance) was adopted and reduced to 8 months to take into account the plea.  The sentence was ordered to run wholly consecutively with the sentence of two years for theft and using false number plates making a total of 2 years and 8 months.  The total sentence was upheld on appeal.

14.The second case of HKSAR and Lam Yui Yiu CACC 373/2006 is of less assistance since the charge was for handling stolen goods (a taxi) for which the defendant was sentenced to 4 years after trial.  This was upheld on appeal but said to be at the top end of the range.

15.Taking into account the facts of this case and the mitigation advanced on behalf of the defendant the sentences shall be as follows:-

Charge 1

16.I take a starting point of three years imprisonment which will be reduced to two years to reflect the guilty plea.

Charge 2

17.This is a serious offence and was committed with the intent to avoid detection.  It was also a potential hazard to other road users since it prevented the proper identification of a vehicle.  Nevertheless this is a first conviction for this offence and I take a starting point of two years imprisonment which will be reduced to 16 months to reflect the guilty plea.

Charge 3

18.This is another serious offence creating a potential hazard to road users but again a first offence and accordingly I take a starting point of 9 months imprisonment which I reduce to 6 months to reflect the guilty plea.

19.In addition as required by the section and in the absence of any special reasons the defendant will be disqualified from holding or obtaining a licence to drive a motor vehicle for a period of 18 months.

Charge 4

20.The requirement to report a traffic accident is a necessary part of road traffic enforcement and the system of compulsory third party insurance.  However I bear in mind in this case the damage was minor.  There was no injury to person and there has been no claim arising there from.  I take a starting point of 6 weeks which I reduce to 4 weeks to reflect the guilty plea.

Charge 5

21.I take a starting point of 9 months which I reduce to 6 months to reflect the guilty plea.  The defendant will be disqualified for the period of 18 months but such period will run concurrent to the period of disqualification in charge 3.

Charge 6

22.I take a starting point of two years imprisonment which I reduce to 16 months to reflect the guilty plea.

Charge 7

23.I take a starting point of two years imprisonment which I reduce to 16 months to reflect the guilty plea.

Charge 8

24.This involved the use of a false taxi identity plate.  These plates are installed to facilitate the identification of a driver by a passenger in case of complaint.  The use of the false identity plate by the defendant undermined this system but does not in my view create the same kind of hazard as using false number plates.  I will therefore adopt a lower starting point of 6 months which I reduce to four months to reflect the guilty plea.

25.I have considered the aspect of totality but as commented by the Court of Appeal in CACC89/2004 whilst the driving without third party insurance arises out of the theft it does create a separate hazard to road users.  In that appeal as in the present case the defendant had driven the taxi for a year before being arrested.  I will therefore adopt a similar approach approved by the Court of Appeal in that case.

26.In the circumstances the orders will be as follows.

27.The sentences in respect of the 2^nd charge, the 4^th charge, the 6^th charge, the 7^th charge and the 8^th charge will run concurrent to the 1^st charge.  The sentences in respect of the 3^rd and 5^th charges will run concurrent with each other but consecutive to the other sentences making a total period which the defendant has to serve of 2 years and 6 months imprisonment.  As stated above the total period of disqualification will be 18 months.

28.In respect of the disqualification the defendant is warned about the consequences of driving during that period. He is also required to surrender his driving licence.