HKSAR v. FUNG KWAI YING

HCMA 653/2009

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 653 OF 2009

(ON APPEAL FROM KCCC 3706/2009)

____________

BETWEEN

____________

_______________

J U D G M E N T

_______________

1.  On 6 July 2009, the Appellant pleaded guilty to two offences, namely driving whilst disqualified, contrary to Section 12(2)(b) of the Road Traffic (Driving-Offence Points) Ordinance, Chapter 375, Laws of Hong Kong and secondly using a vehicle without third party insurance contrary to Sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Chapter 272, Laws of Hong Kong.

2.  The Appellant was sentenced to a term of 12 weeks’ imprisonment on each charge which the learned Magistrate ordered to run concurrently with each other. In addition, she was disqualified from holding or obtaining a driving licence for a period of 2 years in respect of the second charge.

3.  Mr Wong who appeared on behalf of the Appellant does not seek to argue that the term of imprisonment imposed on the Appellant was wrong in principle or manifestly excessive, indeed as I have been informed, the Appellant was released from prison on 30 August 2009. It is the period of 2 years’ disqualification on the second charge, one year over and above the minimum, that it is argued is too long in all the circumstances.

4.  The facts of the case were extremely straightforward. The Appellant was stopped for a random breath test in the early morning of 3 May 2009 whilst driving her taxi. She passed the test. However, the officer conducting the test after consultation with the traffic console, discovered that the Appellant was disqualified from driving at the time. She had been disqualified on 8 December 2008 for a period of 6 months. The Appellant therefore had approximately a month to run on the disqualification order. The offence of driving whilst disqualified triggered the second offence of driving without third party insurance.

5.  An Appeal against sentence is a rehearing. There is no burden on the Appellant to establish that the period of 2 years’ disqualification was either wrong in principle or manifestly excessive. On the facts as presented before the learned Magistrate, taking everything into account, this court is entitled to come to its own view as to the appropriate length of disqualification.

6.  The learned Magistrate in his reasons for sentence alluded to the fact that driving without third party insurance is a serious offence. Indeed it is, that is why he no doubt saw fit to impose a sentence of 12 weeks’ imprisonment in addition to the period of disqualification that he ordered. The fact remains, however, that this offence was triggered by the offence of driving whilst disqualified.

7.  The Appellant was disqualified in December 2008 pursuant to the Road Traffic (Driving-Offence Points) Ordinance, Chapter 375, Laws of Hong Kong. However, I accept from Mr Wong that the Appellant does not have a particularly bad driving record. Indeed her record of previous driving convictions indicate that the vast majority relate to speeding offences very much at the lower end of the scale.

8.  Mitigation was put before the learned Magistrate that included the fact that the Appellant was a 59 years old divorcee and that she had been a taxi driver for some 10 years. It is also apparent that he considered the fact that the Appellant had only one skill in order to earn a living, that of driving.

9.  Whilst I believe the learned Magistrate was correct in ordering a period of disqualification over and above the minimum of 12 months, in my judgment a disqualification order for 2 years in the particular circumstances of this case is too long. Unless the facts of a particular case indicate excessively bad driving which in itself causes danger to the public or where a person has previous criminal convictions involving serious motoring offences, then it seems to me a court should not impose a period of disqualification extending for a substantial period beyond any release from prison.

10.  In the present case, as things stand, the Appellant will have to wait until 5 July 2011, nearly 1 year and 10 months after her release from prison until she is able to resume her occupation as a taxi driver.

11.  For these reasons, I will allow the appeal against sentence to the extent of substituting a period of 15 months disqualification in place of 24 months on the second charge.