HKSAR v. LIU YIM HUNG

HCMA267/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 267 OF 1998

(On appeal from ESC 589 of 1998)

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J U D G M E N T

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1. The appellant was convicted on his own pleas of driving whilst disqualified, driving without 3rd party insurance and driving in excess of the speed limit.

2. In respect of the first offence, a sentence of four months' imprisonment was imposed. In respect of the second offence, a sentence of two months' imprisonment, concurrently, and in respect of the third offence, there was a fine of $1,000. There was also a disqualification, but I do not think that we are concerned with the disqualification here.

3. The argument on behalf of the appellant is that the sentence is manifestly excessive, particularly the sentence of 4 months for driving whilst disqualified and it is argued that perhaps the Magistrate was swayed by mitigation which was ultimately unwise, in that matters were advanced to the court as mitigation which were not really very good mitigation at all.

4. I think it is important to remember that the reason why a sentence of imprisonment is imposed in a normal case for driving whilst disqualified is that the offence itself is a disobedience of a court order. In the normal case, if a person disobeys a court order, he has to go to prison for it. So I think that the Magistrate was quite right, on the basis of the previous decided authorities to sentence the appellant to a custodial sentence. The question, of course, is whether it was too long a sentence.

5. Quite clearly, the Magistrate has considered the various aspects of the case, and in particular the fact that the appellant had been convicted less than a month before for the commission of an offence of driving with excess alcohol and he had been disqualified then. The Magistrate said that the effect of the disqualification would, undoubtedly, have been explained to him, but in order to collect a debt, he chose to ignore and flout the order of the court, thus committing the offence for simple economic reasons.

6. In other words, this is not like various cases which have come before the courts in the past where there is some kind of mitigating factor, such as illness on the part of a family member. The appellant in this case simply had no good reason to be driving his car at all. The learned Magistrate said that he "found the case a serious and blatant an offence of driving whilst disqualified as it was possible to imagine".

7. With respect, I think that is perhaps overstating the matter a little bit. There was no particular aggravation in the manner of driving. The appellant committed a simple speeding offence on a road which, in many parts of that road, has a much higher speed limit and there is no evidence of any other bad driving, apart from the simple speeding. I think that in the circumstances of this case, where the appellant was a person of clear record - at least up to the time when he was convicted of the alcohol offence - the starting point was too high.

8. The object of imposing a prison sentence for breach of a court order is to ensure compliance with the court order and I think that a starting point of three months would have been sufficient in the circumstances. I would not interfere with the sentence on the insurance offence because that, in itself, is a serious matter. In the circumstances, therefore, I propose to vary the sentence on the 1st charge, allowing the usual discount for the plea of guilty to two months' imprisonment.

9. The further question is whether the sentence should be suspended. This argument was advanced to the learned Magistrate by counsel who appeared for the appellant after he had been in prison, awaiting the report. The learned Magistrate bore in mind the authority of Barnes J in the case of CHAN Hon-pui, Crim. App. 913/86. He found that though the appellant had not suffered imprisonment before, the breach had been flagrantly committed and no factor operated to diminish the culpability.

10. I cannot say that the learned Magistrate was wrong in not suspending the sentence, given the fact of such flagrancy and lack of factors operating to diminish the culpability. I accept that the appellant may have family circumstances, and indeed business circumstances, which, arguably, would provide good reasons for allowing him to remain at liberty under a suspended sentence, but, with respect, these are no different circumstances than those enjoyed by many other persons who drive motor vehicles on the road. Everyone has family and most people have business commitments.

11. I cannot say that the learned Magistrate was wrong in failing to suspend the sentence. Accordingly, I do not propose to suspend the sentence today but as I have said, the sentence on the 1st charge will be reduced to two months and the other orders will remain the same.