HKSAR v. TIN FUNG

HCMA 696/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 696 OF 2000

(ON APPEAL FROM ESCC 2379/2000)

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J U D G M E N T

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1. This Appellant was convicted in the Magistracy of various charges the most serious one being that he was driving a vehicle exceeding the permitted gross vehicle weight. Charges 2 to 6, which do not concern the court, related to minor disrepair of the vehicle, or to mechanical defects. The vehicle was found overloaded by 67% of the permitted gross vehicle weight and the facts were admitted by the Appellant before the Magistrate.

2. The Magistrate, rightly, took a serious view of the offence of overloading. He noted that it was the second conviction that this Appellant had sustained for this offence; on the earlier occasion, 5 months before, he had been fined. The Magistrate imposed a sentence of 4 months' imprisonment for the overloading, but suspended the sentence for a period of two years. He also ordered that the Appellant be disqualified from holding or obtaining a driving licence for a period of two years. The Appellant appeals against the disqualification in particular.

3. While accepting that the Magistrate was right to treat the Appellant severely and while accepting that the suspended sentence as a deterrent sentence was entirely proper in the circumstances, I am concerned that the Magistrate imposed the disqualification, which was not mandatory, immediately, without giving the Appellant, who was unrepresented, any chance to make formal representations in respect of the disqualification. It was obvious from the facts before the Magistrate that this Appellant was working as a courier using a vehicle which he was endeavouring to buy. The period of disqualification, therefore, was an extremely serious blow to his livelihood.

4. Disqualification was not a mandatory penalty in respect of this offence although it was open to the Magistrate to disqualify the Appellant in the circumstances. However, the case of R v. Suleyman Emmin (1995) 16 C App R(S) 63 commends as good practice that where the court has in mind to disqualify a driver, the defence should be alerted so that submissions on the issue can be made. Here this was not done and I consider that in the circumstances the Appellant has a genuine grievance about the disqualification. The Magistrate should have warned him of his intention, and, if requested, should have allowed him time to obtain representation in respect of the disqualification. After considering the matter overall I am of the view that the penalty of the imposition of a sentence of imprisonment is, in this particular case, sufficiently severe to deal with the very serious nature of the offence. I note that Appellant has served 3 months of the disqualification.

5. Accordingly, I allow the appeal to the extent of discharging the order of disqualification. The rest of the sentence remains unchanged.