HKSAR v. LAM SAI LIN

HCMA1080/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1080 OF 2000

(ON APPEAL FROM NKCC 5475 OF 2000)

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J U D G M E N T

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1. The appellant was charged with permitting a vehicle to be driven by a person without a driving licence, contrary to sections 42(3) and 42(4) of the Road Traffic Ordinance, Cap.374, Laws of Hong Kong. The particulars alleged that on 10 August 2000, at Prince Edward Road West at the junction of Sai Yee Street, the appellant did permit a private car to be driven on a road by a person who was not a holder of a relevant valid driving licence.

2. The appellant pleaded guilty and was fined $5,000. There was, however, a further order for qualification for three years. Upon the appellant's review, the learned magistrate reduced the disqualification period to two years. The appellant now sought to appeal on the disqualification order.

3. The hearing was originally in Chinese but both counsel had prepared written submissions in English. I shall therefore also give my judgment in English.

4. The main grounds of appeal were firstly that the magistrate had no power to disqualify for such an offence. Even if he did, he should have exercised his discretion not to disqualify and, alternatively, there were special reasons in the present case for not imposing any disqualification order. Finally, it was argued that the disqualification period was manifestly excessive. Having heard counsel and read the submissions, I would agree with the appellant on the second point. But before I go into this ground, I shall briefly deal with the jurisdiction point first.

5. The learned magistrate had given basically two reasons as to why he believed he had the power to disqualify under section 69(1) of the Road Traffic Ordinance, Cap.374 ("the Ordinance"). He pointed out that because section 42(3) was placed in Part V of the Ordinance which was entitled "Traffic offences", and these offences were mainly concerned with the manner of driving, such as careless driving and speeding, therefore, the legislature must have intended that all these were subject to section 69(1)(a). With respect, I found I could not accept this to be a valid reason. Under this part, as counsel for the appellant said, there were also offences such as tampering with motor vehicle (section 49), interfering with traffic signs or road markings (section 50) and prohibition of unauthorized markings or signs (section 51). Such offences had nothing to do with the manner of driving, yet they were included under Part V. It was doubtful whether section 69(1)(a) could apply to such offences simply because they were listed under Part V.

6. The learned magistrate also relied on a common sense reading of the section to support his conclusion. He wrote in the Statement of Findings (in Chinese) that :

「...最重要的，就是光看第42(3)條的內文，亦可以常理得悉如果有關人等沒有無牌駕駛有關之汽車，根本沒有任何人可以干犯第42(3)所列之控罪。所以毫無疑問，第42(3)條當是第69(1)(a)條所指的"與駕駛汽車相關的罪行"。」

7. It was true that the charge did involve driving of a vehicle, but the question was whether the appellant, who was not herself the actual driver, could be disqualified under section 69(1). In my judgment, it would be ultimately a question of statutory interpretation.

8. Section 69 provides that :

"(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 before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court thinks fit -

(a) any offence under this Ordinance in connection with the driving of a motor vehicle;

(b) an offence under section 63(6);

(c) stealing a motor vehicle;

(d) an offence under section 14(1) of the Theft Ordinance (Cap.210) in respect of a motor vehicle;

(e) an offence under section 27 of the Theft Ordinance (Cap.210) committed with reference to the theft or taking of motor vehicle;

(f) a contravention of any of the following provisions of the Road Traffic (Public Service Vehicles) Regulations (Cap.374 sub.leg.), namely regulation 37(a), (b), (c) and (d) (relating to the obligations of taxi drivers) and regulation 47 (relating to prescribed taxi fares);

(g) any offence under any regulation made under section 9 of using or causing or permitting the use on a road of any motor vehicle or trailer in contravention of any provision or requirement of any such regulation as to brakes, tyres or steering gear, except where the convicted person proves that he did not know and had no reasonable cause to suspect that the facts of the case were such that the offence would have been committed;

(h) any offence during the course of which, or in order to escape apprehension for which, he uses a motor vehicle."

9. Subsections 1(b) to (h) were specific situations which the legislature found that a disqualification order ought to be imposed. By contrast, section 69(1)(a) was a general stipulation. I had considered the wording of the related section, particularly section 69(1) and (1)(a). I must say that the very wide wording adopted by the legislature did seem to allow the interpretation employed by the learned magistrate, which the respondent supported. The present offence could be said to be an offence under the ordinance "in connection with the driving of a motor vehicle". It was committed by the appellant permitting the other defendant to drive the vehicle in question. This would be so even bearing in mind that the section was penal in nature and a more cautious approach to interpretation should be favoured.

10. Regarding the authorities on this point, Mr Chong, for the appellant had diligently found and skillfully analysed a number of cases. He frankly stated that the decision of Bewley J (as he then was) in R v. Leung Ka Hing, HCMA362/1989 (unreported) was against him.

11. In that particular case, the appellant was convicted in the magistracy of the same offence as the present one, i.e. permitting a vehicle to be driven by a person who was not the holder of a driving licence, contrary to sections 42(3) and (4) of the Road Traffic Ordinance, Cap.374. Apart from the fine, the appellant was disqualified for 12 months.

12. On appeal, the same issue was raised by counsel regarding the power to disqualify. Having considered the wording of section 69, the learned judge gave, inter alia, the following judgment :

"There is no doubt that 'permitting' is a substantive offence. I do not think therefore that it was the intention of the legislature to include it under the 'aiding and abetting' provisions of subsection 3. The latter would cover the case of a friend of a driver, who was not the owner of the vehicle, but who encouraged the driver to drive knowing that he had no driving licence. It would be unjust to penalise such a person, unless he was actually in the car at the time. Not so in the case of an owner permitting the driver to drive. That is a more serious matter.

The phrase 'in connexion with the driving of a motor vehicle' is a wide one. As a matter of common sense and ordinary use of language, I think it must catch someone who hands over his car to be driven by another and thereby permits him to drive." (R v. Leung Ka Hing, MA No.362 of 1989 at page 3)

13. I noted that Mr Chong tried to argue that this decision was reached without reference to previous authorities. He invited this court to adopt the authority of R v. Cheung Chor Suen [1982] HKC 250 which turned on the interpretation of the similar section but in connection with another offence. There, Macdougall J (as he then was) stated the following :

"I think as a matter of common sense as well as one of statutory interpretation that the legislature plainly intended disqualification under the provisions of s 23(1)(a) to be a punishment appropriate to and directed at persons whose driving has resulted in a breach of the law. Neither the driving of the appellant nor that of his friend, who was actually the driver of the vehicle when it became involved in the collision, was in any way related to the defective condition of the vehicle."

14. In interpreting and applying the section, apparently Bewley J was concentrating on the plain and ordinary meaning of the wording of the section while Macdougall J was trying to ascertain the intention of the legislature behind the particular section.

15. The respondent, however, argued that Macdougall J's decision was reached without reference to Yip Wai Kay. And in so far as the appellant also sought to rely on Ho Kwan Pui v. R [1960] HKLR 122, the basis of the decision by Macfee J was subsequently questioned by Huggins J. (See Yip Wai Kay v. R [1969] HKLR 335.)

16. The difficulties involved in these and the other authorities cited appeared to be that the actual charge involved might have affected how section 69(1)(a) had been interpreted by the courts. The question became one of whether the particular charge should actually attract a disqualification. Nevertheless, Mr Chong had proposed that the authorities showed that there was a pattern behind the cases. He argued that the test for deciding whether an offence under the Road Traffic Ordinance was connected with the driving of a motor vehicle and falling within the ambit of section 69(1)(a) was whether the offence as created necessarily alleged that the offender to be a driver. He further postulated four practical situations to illustrate his analysis. I had heard and considered his able submission in this regard. However, I considered that ultimately one must return to the actual wording of the section to find the answer, instead of artificially fitting the situation into the different categories.

17. I took the view that the basic approach must be a consideration of the plain words of the section to ascertain the legislative intent. Having done so, as I had stated earlier, I found that the very wide wording of section 69(1)(a) would permit the interpretation adopted by the learned magistrate. The present offence was, literally speaking, one "in connection with the driving of a motor vehicle", as without the driver driving the vehicle, there could be no "permitting" committed. In this connection, Macdougall J's analysis was, with respect, placing unnecessary restriction on the plain and natural meaning of the section.

18. Therefore, despite Mr Chong's very persuasive submissions to the contrary, I would find against the appellant on the jurisdiction point. I found that the magistrate did have power to impose the disqualification order under section 69(1)(a) for the present offence. However, I tend to agree with the appellant on the question of discretion. I came to the view that the learned magistrate had not properly exercised his discretion in imposing the disqualification.

19. The reason given by the magistrate to disqualify was as follows :

「本案之被告身為車主，應該意識到將車借出而無採取任何步驟確認駕駛者擁有基本的駕駛資格，其後果可以極之嚴重。其明知有險而故意犯險的行為，等同魯莽。為了防止此種情況，本席認為適宜的處理方法，是取消其駕駛資格。此舉一來可以警告被告本身，更可令社會人事以此為戒，不可隨便將其名下車輛借出。此外，本席更下令被告罰款$5,000。」

However, I doubt that whether, without further evidence, it was possible for the learned magistrate to conclude that the appellant had actually been reckless. According to the agreed facts, based upon which the appellant had pleaded guilty, it was stated that the 1st defendant knew his driving licence had expired but he did not tell the appellant about it. Furthermore, under caution, the appellant said she remembered accompanying her boyfriend, the 1st defendant, to renew his driving licence some 10 yeas ago and therefore she thought that he had kept on renewing his licence when it was due, so she did not check his licence at the time.

20. Disqualification was a serious order to make. In section 69(1)(g), the legislature found it necessary to provide a "defence" for the convicted person to resist the disqualification order. Section 42(3) was a strict liability offence. Hence, when the court came to decide whether a disqualification order was justified, factors similar to those mentioned in section 69(1)(g) would also be relevant matters. However, in the present case, the learned magistrate seemed to have placed too much emphasis on the deterrence factor and based his decision, perhaps unjustifiably on the presence of recklessness on the part of the appellant. I found he had failed to exercise his discretion in an appropriate manner, although he did have the power to disqualify in these circumstances.

21. Therefore, I would allow the appeal on this ground. I found it would be necessary to further consider whether the length of disqualification was too long.

22. The order of disqualification would be quashed. I shall order that the driving licence be returned to the appellant as soon as practicable. The order for the fine shall remain. There be no order as to costs for this appeal.