ATTORNEY GENERAL v. LI MING KIT

M.A. No. 252 of 1995

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H E A D N O T E

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Criminal law and procedure - Construction of s. 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 and s. 69(2) Road Traffic Ordinance (Cap. 374) - Whether power to limit disqualification to one class of vehicles.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 252 OF 1995

(On appeal from TMS6170 of 1994)

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J U D G M E N T

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1. This is an appeal by way of case stated by the Attorney General against the decision of a magistrate limiting disqualification to private cars in respect of an offence under s. 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272.

2. On 14 November 1994, the respondent, LI Ming-kit appeared before the magistrate and pleaded guilty to a charge that on 27 February 1994, he drove a private car along Lung Mun Road near Tsing Wan Road, New Territories and failed to produce a certificate of insurance when he was stopped by the police. The magistrate imposed a fine of $1,500.00 and disqualified the respondent from holding or obtaining a driving licence for private cars only for a period of 12 months.

3. The magistrate was of the opinion that he was entitled to impose a disqualification limiting to a certain class of vehicles under s. 4(2) of the Ordinance because :-

(a) s. 4(2)(a) of the Ordinance provides that a person convicted of an offence under this section shall be disqualified from holding or obtaining a driving licence not any driving licence as provided by s. 69(2)(b) of the Road Traffic Ordinance, Cap. 274;

(b) it was held in LEUNG Tak-kuen v. R., [1972] HKLR 493 (Full Court) that a Magistrate had such a power and this was confirmed in TSOI Yau-fai v. R., Criminal Appeal No. 1031 of 1985;

(c) the Chief Justice in Magistracy Appeal No. 980 of 1992 allowed an appeal against sentence and ordered the disqualification to be restricted to one class of vehicles only.

4. The questions of law arising for determination by this Court are :

(1) Whether the magistrate was correct in holding that he was entitled to impose a disqualification limited to a certain class of vehicles under s. 4(2) of the Ordinance.

(2) Whether he was correct in law when he followed the decision of the Chief Justice in Magistracy Appeal No. 980 of 1992.

5. S. 4(2)(a) provides :-

"If a person acts in contravention of this section ... he shall ... be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the Court may determine ...."

6. S. 4(2)(b) provides :-

"A person disqualified by virtue of a conviction under this section or of an order made thereunder for holding or obtaining a licence shall, for the purposes of the Road Traffic Ordinance (Cap. 374) be deemed to be disqualified by virtue of a conviction under the provisions of that Ordinance."

7. Before it was amended in 1986, s. 69(2) of the Road Traffic Ordinance read :-

"(2) A disqualification -

(a) imposed in respect of an offence specified in subsection (1)(f) shall be limited to the driving of a taxi;

(b) imposed in respect of any other offence may, if the Court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed."

This section was amended by the Road Traffic (Amendment)(No. 2) Ordinance No. 43 of 1986. The existing s. 69(2) reads as follows :-

"A disqualification imposed in respect of any other offence specified in subsection (1) shall be a disqualification from holding or obtaining any driving licence."

8. LEUNG Tak-kuen v. R. and TSOI Yau-fai v. R. were both decided before the amendment, but even then judicial opinion on this question was divergent. In CHENG For-kar v. R. (Unreported) Criminal Appeal No. 316 of 1972, Leonard J. held that a disqualification for driving without insurance must be in respect of all vehicles. It is to be noted that the decisions in R. v. LEUNG Wan and Burrows v. Hall were not drawn to his attention. In LEUNG Wan v. R. [1964] HKLR 327, Huggins J. (as he then was) felt he was bound to follow Burrows v. Hall [1950] 2 AER 156 and said at p. 340

"I am loth to cause confusion by not following a decision of the Court of Criminal Appeal (and one which has stood for 14 years) on the construction of an indistinguishable enactment."

Burrows v. Hall was decided under s. 35(2) and s. 6 of the Road Traffic Act 1930 which conferred on the Court power to limit disqualification to the driving of a motor vehicle of the same class or description as the vehicle in relation to which the offence was committed. But this power was taken away by the Road Traffic Act 1956.

9. In my judgment, the amendment to s. 69 of the Road Traffic Ordinance in 1986 has taken away the power of the Court to limit disqualification. S. 4(2)(a) by itself does not have this power.

10. The decision of the Chief Justice in Magistracy Appeal No. 980 of 1992 was obviously decided per incuriam. The appellant was unrepresented and no arguments were heard or authorities cited. More importantly, the attention of the Chief Justice was not drawn to the amendment to s. 69(2) of the Road Traffic Ordinance in 1986. I am fortunate to have the benefit of hearing full and most helpful arguments from Mr. Kevin Browne. I am indebted to him for his assistance.

11. The appeal is allowed. The first question is answered in the negative. The second question does not require any answer. I might add, in fairness to the magistrate, that it would be difficult for him not to follow the decision of the Chief Justice and other previous decisions. He was in an unenviable position as, I am told, he was the same magistrate who was reversed by the Chief Justice.