HKSAR v. CHAN KAI SING

HCMA 1258/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1258 OF 1999

(ON APPEAL FROM TMCC 4209/1999)

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J U D G M E N T

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1. The Appellant was charged with two offences which occurred in November of 1999. The first was Driving whilst Disqualified, the second was Using a Motor Vehicle without Third Party insurance. He was stopped by the police and initially told them that he knew he was disqualified but that he had just been driving to earn some money.

2. The Appellant pleaded guilty. In mitigation, the Magistrate was told that the Appellant was aged 29, was separated from his wife, that he was the sole breadwinner of the family and had to support a son of 7 and his parents. He told the Magistrate that prior to the offence he had been unemployed for 6 months and had come to an arrangement with a friend whereby he was to work as a delivery worker whilst his friend drove the vehicle. His friend had not taken up that employment at the time of the offence and therefore the Appellant had driven the vehicle in question. The Appellant's lawyer asked the Magistrate to consider a non-custodial sentence, i.e. a fine or Community Service Order.

3. In sentencing, the Magistrate had before him the fact that the Appellant had pleaded guilty to the charges and he considered that the only appropriate sentencing option was an immediate prison term. In particular, he found that the Appellant had been driving again 2 weeks after his disqualification. He considered, quite rightly, that this was a flagrant breach of the original court disqualification order and the road traffic regulations. He noted, again correctly, that by driving whilst uninsured the Appellant would pose a serious risk to other road users' rights and interests in the event of any road accident. He took a starting point for each offence of 6 weeks imprisonment and reduced that by one third to 28 days imprisonment to reflect the Appellant's pleas of guilty. The periods of imprisonment were order to run concurrently.

4. He then turned to the question of disqualification. For the first offence, under section 44(2)(a) of the Road Traffic Ordinance, Cap. 374, he was obliged to disqualify the Appellant for at least 12 months, that is the charge of driving whilst disqualified. For the second charge, driving without third party insurance, unless there were special reasons, he was obliged to impose a minimum period of 12 months. He found that no special reasons had been advanced on behalf of the Appellant which would enable him to avoid the period of disqualification. He considered that in the circumstances of this particular case a 15 months disqualification order was appropriate for each charge and he ordered the disqualification to run from the date of his sentences.

5. In doing so the Magistrate was in error, because he failed to take into account the provisions of sections 44(3) of the Road Traffic Ordinance and 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 which establish that any disqualification order under section 44(2)(a) of the Road Traffic Ordinance and section 4(2)(a) of the Motor Vehicle Insurance Ordinance has to be consecutive to any previous disqualification order imposed for driving whilst uninsured. In this Appellant's case, he had been disqualified for 12 months at North Kowloon Court on 28 October 1999, which was about 2 weeks before he was arrested for this offence.

6. The Magistrate realised this error when he was preparing his Statement of Findings and said that if he had realised it at the time of sentencing, he would in all probability have ordered a 12 month disqualification period for each of Charges 1 and 2 to run concurrently, instead of the 15 month disqualification that he had in fact ordered on Charges 1 and 2.

7. Given that the Magistrate had already noted this matter and given that if he had realised the disqualification had to be consecutive he would have imposed a 12 month period, I have decided that I should allow this appeal to the extent of ordering a 12 month disqualification in respect of each of Charges 1 and 2 to run concurrently, but to run consecutively with the earlier disqualification order imposed in NK 006220/99 on 28 October 1999. The sentence of imprisonment remains the same and will be served by the Appellant.