HKSAR v. TSE YIU BUN SPENCER

HCMA852/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 852 OF 1999

(On appeal from Western Magistracy Case No. WSC 4711 of 1995)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy on 21-7-95 of one count of Driving whilst Disqualified, contrary to Section 44(1)(b) of the Road Traffic Ordinance, Cap 374 [RTO 441b] and Driving a Motor Vehicle Without Third Party Insurance, contrary to Section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272 [MVI41]. He was fined $1000.00 on the first charge and disqualified from holding or obtaining a driving licence for 3 years from 7-1-97 to 7-1-2000. He was fined $3000.00 on the second charge, but the Magistrate did not impose any period of disqualification, choosing to exercise his discretion not to do so because of special circumstances he believed to exist in relation to that offence.

2. On 28-7-99 the Appellant applied to the Magistrate for leave to appeal out of time against the period of disqualification imposed on the first charge. The Magistrate granted leave. After considering the grounds of appeal I allowed the appeal by substituting for the original period of disqualification a period of 12 months, for the offence under RTO 441b, to run from 11-2-96 to 11-2-97.

3. The matters advanced by Mr Clement for the Appellant were not disputed by Mr McWalters, who appeared for the Secretary for Justice. The basis of the appeal was that the 3 year period of disqualification imposed on 27-3-95 was not within the Magistrate's powers. The Magistrate had made two errors in sentencing Appellant, apparently due to inadvertence on his part. Those errors can be traced, in all probability, to the way Appellant's Traffic Convictions and Fixed Penalty Payment Citations Summary (Pol.577) [Summary] was recorded by the police.

4. It appears to be the practice that this Summary is presented to inform a Magistrate of a defendant's traffic record and it is not usual for the Certificates of Trial to be produced to substantiate each prior conviction. Usually the Summary is entirely adequate for sentencing purposes and the defendant has an opportunity to advise the Magistrate whether or not the summary is accepted as an accurate record. The details, of necessity, are brief and in this case the Magistrate erred in relying on them. It is necessary to look at the Appellant's traffic convictions prior to that the subject of this appeal.

5. The Appellant was first sentenced by Mr M.D. Hill on 7-1-93.He was disqualified for 12 months for driving whilst disqualified under Section 12(2)(b) of Cap.375 the RTO (Driving Offence Points). He was disqualified for the same period for an offence under MVI41 and the periods of disqualification were ordered to run concurrently. In fact the Magistrate had no power under Section 12(2)(b) to disqualify, although there was such power under MVI41. Nothing turns on that error as the disqualification was imposed correctly for the MVI41 offence. The disqualification began on 14-1-93 and was to expire on 14-1-94.

6. Appellant was sentenced for further offences on 11-2 -93 by Mr G.A. Andree-Wiltens. For driving whilst disqualified contrary to s.12(2)(b) of Cap 375 the RTO (Driving Offence Points) he was sentenced to 6 months imprisonment, suspended for 3 years, and for driving without third party insurance MVI41 he received the same sentence. He was disqualified for 3 years in respect of the second offence, MVI41, and that disqualification was ordered to run concurrently with the disqualification order imposed by Mr Hill. The disqualification period would thus expire on 11-2-96.

7. On 25.7.95 Appellant appeared before Mr Saunders, charged with driving whilst disqualified, contrary to RTO 441b, and driving without third party insurance, MVI41, to which offences he pleaded guilty. The magistrate imposed a disqualification of 3 years on the charge under RTO 441b and, in the mistaken belief that the disqualification imposed by Mr Andree-Wiltens was consecutive to that imposed by Mr Hill, he ordered the new disqualification to start on 7-1-97 some 11 months after the previous disqualification would in fact expire. The Summary (Pol.577) did not record whether or not the previous disqualification was consecutive or concurrent, that information appeared only on the Certificate of Trial.

8. There is no power to order a disqualification to start at some future date; a disqualification can only be ordered to run concurrently or consecutively to one already existing. If the Magistrate had seen the Certificate of Trial relating to the previous case, or if the Summary had been more detailed, the error would not have occurred, as it would have been clear that the earlier orders were concurrent. The Appellant was thus given back his licence for a period of 11 months: it was taken away again when the period of disqualification imposed by Mr Saunders began.

9. A further error appeared in the Magistrate's Reasons for Sentence (Bundle 30-lines 29-35) where he declared that he was obliged to disqualify the Appellant for a further minimum period of 3 years by virtue of s.44(2)(b) RTO.

10. RTO 44(2)(a) provides that a person convicted for the first time under RTO 441b of driving whilst disqualified, shall be disqualified for a period of not less than 12 months from holding or obtaining a licence and RTO 44(2)(b) provides that for a second or subsequent conviction the disqualification is to be for a period of not less than 3 years. The period of disqualification shall be in addition to any other period of disqualification ordered under any other provision of the RTO. Thus the disqualification is mandatory and minimum sentences are prescribed for first and repeat offences under RTO 441b.

11. S.4(2)(b) of MVI Third Party Risks Ordinance provides that a person disqualified under s.4(1) MVI shall for the purposes of the R.T.O. Cap 374 be deemed to be disqualified by virtue of a conviction under that ordinance.

12. However s.44(2) RTO makes it clear that the minimum periods of disqualification at s.44(2)(a) and (b) apply to "a person convicted of an offence under this section". (my underlining) This was Appellant's first conviction under s.44(1)(b) RTO, the other convictions where disqualification were imposed having been under s.4(1) MVI. Thus, although disqualification was mandatory, the correct minimum sentence was 12 months. Again the Summary (Pol.577) may have led the Magistrate into error as the sections under which charges are laid are not recorded. Alternatively, the Magistrate may have believed that the deeming provision of s.4(2)(b) MVI obliged him to treat the offence he was considering as if it was a second offence under s.44(1)(b).

13. It remains for this court to rectify those two errors and decide what period of disqualification should have been imposed on the Appellant. From the Magistrate's Reasons it is clear that he would not have disqualified Appellant for the s.44 offence if he had not been obliged to. He exercised his discretion not to disqualify Appellant for the offence of driving without third party insurance, finding that special reasons existed to support that course.

14. Those reasons were the short distance driven for the purpose of parking: the lack of any speed element; the lack of intention to drive further on public roads and the fact that Appellant was unlikely to have come into contact with other vehicles.

15. On that basis and taking into account the Magistrate's expressed sympathetic stance, I agree with Mr Clement that it is unlikely that the Magistrate would have imposed more than the minimum mandatory period of disqualification for a first offence. The disqualification for the RTO 441b offence would therefore have been 12 months, to run from the expiry of the disqualification order made by Mr Andree Wiltens, namely 11-2-96, until 11-2-97.

16. It is desirable that this matter be regularised even although the correction is not now of any practical effect. However, it enables the Appellant, to return to the road having disentangled himself recently from further disqualification - see Mag. App. No. 175/99. Accordingly I allow this appeal to the extent of substituting for the original disqualification a period of 12 months on the charge of Driving Whilst Disqualified, contrary to s.44(1)(b) of the Road Traffic Ordinance Cap. 374, such period to run from 11-2-96 to 11-2-97.

17. It would appear desirable that where from the Summary (Pol.577), subsisting disqualification periods appear, a Magistrate contemplating the imposition of a further period of disqualification checks the Certificate(s) of Trial before doing so. A copy faxed from the sentencing Magistracy would be sufficient to clarify the position.