HKSAR v. YAM, WING SHUN

HCMA 389/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 389 OF 2010

(ON APPEAL FROM ESD 496/2009)

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J U D G M E N T

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1.  This is an appeal against an order disqualifying the Appellant from holding or obtaining a driving licence for 6 months pursuant to s. 8 of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375. The summons covers a total of 16 driving-offence points in respect of offences committed between 15 September 2008 and 26 October 2009.

2.  The trial was conducted in Chinese but the Appellant’s grounds of appeal and submissions were made in English and the appeal was, therefore, heard in English.

Background

3.  All the facts for the prosecution were admitted under s. 65C of the Criminal Procedure Ordinance, Cap. 221 in exhibit no. PA.  In gist, the Appellant admitted that he had incurred a total of 16 driving-offence points between the period of 15 September 2008 and 26 October 2009.

4.  On or about 16 May 2009, the Commissioner of Transport served a Notice of Point dated 16 May 2009 under s. 7 of the Road Traffic (Driving Offence Points) Ordinance on the Defendant by post at the Defendant’s Trade Square address registered with the Transport Department.

5.  The letter was not received by the Defendant and was returned to the Transport Department.  It is a little perplexing that the Appellant admitted in paragraph 4 of exhibit PA that the Trade Square address was the “Defendant’s then current residential address” on 16 May 2009.  But in paragraph 6 of the same document, it is admitted that the “Defendant notified the Transport Department of an amendment of his correspondence address to the City Garden address on 28 June 2005.  The amendment was effected on 8 July 2005.”  This apparent dichotomy was not noticed or corrected at the trial.  However of more importance is that the facts agreed was that the notice sent by the Commissioner for Transport on 16 May 2009 was never received by the Defendant and it was returned to the Transport Department.

6.  On or about 27 November 2009, the Commissioner for Transport served on the Appellant a notice dated 27 November 2009 informing the Defendant inter alia that he had incurred 13 points and that he had to attend a driving improvement course in compliance with s. 8AA(1) of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375.

7.  The Appellant completed his driving improvement course on 16 December 2009 satisfactorily. 

8.  On 19 December, the Appellant was then summonsed under s. 8 of the Ordinance to appear in Court as the Commissioner was to apply for the Appellant to be disqualified for having incurred a total of 16 driving points between 15 September 2008 and 26 October 2009.  After a hearing before the Learned Magistrate, the Learned Magistrate so ordered.

Appeal

9.  Basically the chief complaint on appeal is that the Learned Magistrate was wrong to have made the order disqualifying the Appellant for 6 months.

10.  Under s. 6A of the Road Traffic (Driving Offence Points) Ordinance, hereinafter refer to “the Ordinance” subsection (1):

“(1) subject to subsections (2) and (3), where a person is issued with a course certificate, the Commissioner shall, as soon as practicable thereafter, cause 3 points to be deducted from the total number of points that have been incurred by the person under section 4.”

(2)  No point may be deducted under subsection (1) if, on the date the person completes the driving improvement course in relation to which he is issued with the course certificate–

(a)      the person-

(i)   has not incurred any point; or

(ii)     has incurred 15 or more points; or

(b)      the Commissioner has within the past 2 years deducted points under subsection (1) from the total number of points incurred by the person.

(3)  If, on the date the person completes the driving improvement course in relation to which he is issued with the course certificate, an appeal under section 5(2) against a conviction for a scheduled offence that the person committed within the past 2 years is in progress, no point may be deducted under subsection (1) pending the determination of the appeal.

(4)  The points deducted under subsection (1)-

(a)      are deemed to have been deducted on the date the person completes the driving improvement course in relation to which he is issued with the course certificate; and

(b)      are, for the purposes of sections 7 and 8, deemed not to have been incurred by the person.”

11.  Under s. 8 of the same Ordinance, it says:

“(1) Subject to sections 4A, 5 and 6, where 15 or more points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding or obtaining a driving licence in accordance with this section.....

(4A)   Account shall be taken under subsection (1) of any deduction of points in accordance with section 6A.”

12.  Finally, I refer to s. 8AA of the same Ordinance which reads:

“(1) Subject to sections 4A, 5 and 6, where a person incurs 10 or more points in respect of offences that were committed during a period of 2 years, the person shall attend and complete a driving improvement course at his own cost­

(a) within 3 months after the date of a notice served on him under subsection (2); or

(b) if the Commissioner has fixed a longer period under subsection (3), within the period after the date of a notice served on him under subsection (2).

…

(5)  A person who, without reasonable excuse, contravenes subsection (1) commits an offence and is liable on conviction to a fine at level 2 and to imprisonment for 1 month.”

13.  The main issue on appeal is that the Appellant said that he was entitled on the satisfactory completion of his driving improvement course on 16 December 2009 to have 3 points deducted as provided by s. 6A of the Ordinance.  Therefore, when the Commissioner for Transport summonsed him on 19 December 2009, the Commissioner was in error because he at that time had only 13 driving points and not as was alleged by the Commissioner 16 driving points.

14.  Mr Chung, on behalf of the Appellant, submitted that s. 6A subsection (2) of the Ordinance where it said “no point may be deducted” confers on the Commissioner at a discretion to deduct 3 points on the satisfactory completion of the driving improvement course notwithstanding that the Appellant has incurred 15 or more points at the time he completed the driving improvement course.

15.  As Miss Chan, on behalf of the Respondent, noted the legislative intent behind this Ordinance was that driving improvement courses was specifically designed to “instill in drivers a stronger sense of road safety and good driving behaviour”.  And thus the provision was made mandatory and the deduction of points was to provide incentive to drivers to improve their driving.  A reading of the relevant section in the Ordinance does not indicate that the legislature had intended to empower the Commissioner with a discretion as to whether or not to deduct points.  I agree with the Learned Magistrate’s analysis that the word “may” under s. 6A(2) does not empower the Commissioner with a discretion.

16.  Mr Chung complaint that the notification under s. 7 subsection (1) of the Ordinance sent by the Commissioner on 12 May 2009 had never been received by the Defendant.  Had the Defendant received that notice, he would have been alerted to the fact that he had already incurred 11 points and he could then have attended a driving improvement course and 3 points would have been deducted.  When the Appellant received the notice dated 27 November 2009 informing him that he had incurred 13 points and that he had to attend a driving improvement course, on completing the improvement course on 16 December 2009，he had a legitimate expectation that he would receive a deduction of 3 points under the Ordinance.

17.  S. 6A of the Ordinance said categorically that the Commissioner cannot deduct 3 points if on the date the person completes the driving improvement course, the person has incurred 15 or more points.  The section does not give the Commissioner any discretion in the matter.

18.  Under s. 6A, it is clear that the legislation was providing for the fact that between the time when the person takes a driving improvement course or is informed that he has to take a driving improvement course and the time he completes the driving improvement course, he has incurred 15 or more points, then the Commissioner has no authority or discretion to deduct the 3 points as provided for in subsection (1) of s. 6A.

19.  In this case, the Defendant’s extra 3 points were incurred on 12 December 2008 and thus was not taken into account when the Commissioner under s. 8AA issued his notice to the Defendant to attend a driving improvement course because it was thought rightly that there is no retrospective effect for s. 8AA which became law on 9 February 2009.

20.  While I agree with counsel for the Respondent that s. 8AA was legislation which the Government has propounded for the benefit of improving driver training.  Nevertheless, in this case both s. 8AA and s. 6A should be looked at together.  In this case, the Appellant had satisfactory completed his driving improvement course.  He is, therefore, entitled to a deduction of the 3 points from his record.  The issue, thus, is a narrow one.  On the day he completed his driving course, was the computation to include the 3 points which was not included in the assessment of the Commissioner when he issued the notice to attend a driving improvement course? It is clear in a situation like this that the Defendant would have a legitimate expectation that he would obtain the deduction of 3 points from the total points which had made him liable to attend a driving improvement course.  The Learned Magistrate refers to the case of Ng Siu Tung & others v Director of Immigration [2002] 1 HKLRD 561 where the Court said:

“…to be legitimate, the expectation must be reasonable…Whether an expectation is legitimate in this sense depends, at least in part, upon the conduct of the relevant public authority and what it has committed itself to. Whether an expectation is legitimate, and to what extent, must also depend upon what the applicants are entitled to expect.”

Thus, in this case the Appellant was reasonably and legitimately expecting 3 points to be deducted from the total points which made him liable to complete a driving improvement course.

21.  Therefore, it follows that the appeal must be allowed and the disqualification set aside.