THE QUEEN v. WAN KIT MAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1190 of 1991

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BETWEEN

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J U D G M E N T

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1. On the 28th November 1991 the appellant was disqualified from holding or obtaining a driving licence for a period of six months from that date pursuant to section 8(3) (b) of the Road Traffic (Driving offence Points) Ordinance, Cap.375. He now appeals against that order. The only ground of appeal is set out in his notice of appeal as follows:-

"Even though 15 driving-offences points have been accumulated by his fixed penalty offences, the appellant should not be disqualified under S.8 of the Road Traffic (Driving Offence Points) Ordinance, Cap.375 after he has duly paid in accordance with the fixed penalty ticket (i.e. liability for the offence can be discharged by presenting this notice ..... and pay the fixed penalty within 21 days ..... ) in the light of Rule (6) of Article 11 of the Hong Kong Bill of Rights Ord."

2. Mr Watson, who appears for the appellant, argues that the appellant should not be punished twice. It is his contention that the Road Traffic (Driving Offence Points) Ordinance has been wholly repealed by s.3(2) of the Hong Kong Bill of Rights and Articles 10 and 11 thereof. The right for a licence to drive a motor vehicle on a public road is a valuable right and may only be taken away by due process of law. The Fixed Penalty (Criminal Proceedings) Ordinance s.3(8) provides that where a person has paid the fixed penalty "he shall not be liable to be prosecuted or convicted for the scheduled offence specified in the notice". This is a clear and unequivocal statement that no further consequences shall flow in respect of that offence. All liability is extinguished. The Road Traffic (Driving Offence Points) Ordinance, Cap.375, s.4(1) provides that subject to s.6(2), where a person - (a) is convicted of a scheduled offence; or (b) becomes Liable to a fixed penalty in respect of a scheduled offence, he shall incur the appropriate number of points in respect of that offence. Section 8 provides for disqualification where 15 or more points have been incurred within two years.

3. Mr Watson submits that s.4 violates the Bill of Rights and is repealed by it. S.4 (1) (a) (i.e. the incurring of points when a person is convicted of a scheduled offence) though not directly in point in this appeal, is "illuminative in that on the face of it it directly contravenes Article 11(6) of the Bill of Rights by authorising an offender to be punished again for an offence for which he has already been finally convicted in imposing penalty points that lead to disqualification." It is true, says Mr Watson, that S.4(1) (b) (which is directly in point in this appeal) is not caught by Article 11 as a person paying a fixed penalty is not liable to be prosecuted or convicted, but this is absurd and in a true and liberal interpretation of the Article, a person who is not liable to prosecution and conviction should not be placed in a more disadvantageous position than a convict. He submits that the greater includes the lesser and on a true construction a person not liable to prosecution and conviction must not be punished at all.

4. Mr Watson points out that it was submitted by the Crown and apparently accepted by the learned magistrate that the imposition of points leading to disqualification by a purely executive act is not punishment but a consequence of proceedings civil in nature. If this be true, despite being in consequence of the Fixed Penalty (Criminal Proceedings) Ordinance, then the whole purpose of the Bill of Rights could be avoided by, e.g. calling a flogging or penal incarceration a civil administrative correction or some such term. He submits that the word "punished" means in respect of a person, the deprivation of a right he would otherwise enjoy as a citizen.

5. Mr Watson refers to Article 10 of the Bill of Rights entitled "Equality before court and right to fair and public hearing". This states "All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law."

6. Mr Watson submits that this article is breached by the Road Traffic (Driving Offence Points) Ordinance in that it permits the award of penalty points leading to a penal sanction of criminal punishment (disqualification and deprivation of a right or licence) and at civil law (similarly) by the imposition of the executive without the intervention of a court or tribunal. He submits that it appears to be repugnant to common sense, law and justice that a person solemnly assured by statute that he should not be prosecuted or convicted for an alleged offence and his liability will be discharged on the payment of a sum by way of penalty, should suffer further punishment/civil disability without at least being informed, e.g. by endorsment on the Fixed Penalty Notice.

7. Miss Yasmin Mahomed, Crown Counsel, appearing for the respondent, submits that the appellant does not get disqualified for six months by way of executive action. There is a competent tribunal. He is summoned to go before the magistrate. He is therefore able to have his say. This is in accordance with s.10. With regard to the fixed penalty ticket, he can decide not to pay and elect to go to court. He can plead not guity or plead guilty, it is his choice. The disqualification is a civil consequence arising from having 15 points. She relies on the Crown's skeleton submission which had been tendered before the magistrate by Senior Assistant Crown Prosecutor Mr S.R. Bailey, which is in the following terms:-

"THE ISSUES

    The issue is whether an order of disqualification from holding or obtaining a driving licence under Section 8 of Cap.375 (by reason of a person accumulating 15 or more points within a relevant 2 year period) is inconsistent with Article 11(6) BOR by reason of amounting to 'double punishment' for an offence - and if so, the effect of such inconsistency under Section 3 of the BOR.

Elements of Article 11(6) BOR

2.    Article 11(6) protects a person from being:

(a)     tried or PUNISHED again

(b)     for an OFFENCE

(c)    for which he has already been FINALLY CONVICTED or acquitted.

Crown Submissions

3.     It is submitted that:

(a)     a disqualification under Section 8 of Cap.375 does not amount to punishment within the meaning of Article 11(6) BOR;

(b)     the payment of a fixed penalty notice under Cap.240 absolves a person from liability for prosecution or conviction of an offence;

(c)     the accumulation of 15 points within a 2 year period is not itself an offence;

(d)     nothing in Article 11(6) BOR prohibits multiple penal consequences flowing from a single act; and

(e)     there is no 'final' disposition of a traffic infringement until the expiry of 2 years after the date of the offence.

'Punishment'

4.     It is submitted that an order for disqualification under section 8 of Cap.375 does not constitute 'punishment' within the meaning of Article 11(6) BOR. The disqualification is a civil consequence of accumulating 15 driving-offence points within a 2 year period.

See :- ROSS v REGISTRAR OF MOTOR VEHICLES

(1973) 14 CCC (2d) 322

(Supreme Court of Canada)

(5)    Article 11(6) BOR is directed only to sanctions of a criminal nature imposed by a court in sentencing a person convicted of an offence. It does not extend to all punitive consequences of a conviction - particularly where such consequences are civil in nature.

See :- Re BULMER and SOLICITOR-GENERAL OF ALBERTA

(1987) 36 DLR (4th) 688

Re WORKMAN and THE QUEEN

(1987) 37 CCC (3d) 187

6.     The accumulation of 15 driving-offence points within a 2 year period is not a criminal offence - it entails no 'conviction'. The proceedings are entirely civil in nature and result in a civil disability. In no sense is a person summonsed under Section 8 of Cap.375 'tried or punished again for an offence' within the meaning of Article 11(6) BOR.

'Offence'

7.     Article 11(6) BOR protects a person against trial or punishment again for 'an offence for which he has already been finally convicted or acquitted'. Article 11(6) BOR recognises the pleas of autrefois acquit and autrefois convict. In the case of a person who pays the amount demanded on a fixed penalty notice, there is no offence for which he has been 'convicted'. Section 3(8) of Cap.240 specifically provides that a person who pays the full amount of a fixed penalty notice '... shall not be liable to be prosecuted or convicted for the scheduled offence specified in the notice'. In the circumstances of a person (such as the present respondent) who has paid fixed penalty notices there is simply no '... offence for which he has already been finally convicted....'. Payment of the fixed penalties discharged his liability to prosecution or conviction.

Multiple Penal Consequences

8.     Even if a person who is liable to disqualification under Section 8 of Cap.375 was treated as if he had been convicted of offences, the reference in Article 11(6) BOR to 'finally convicted' recognises that a single act may have multiple penal consequences. Disqualification does not flow from any single driving offence but from the accumulation of 15 points within a 2 year period. This is a quite separate issue from the penalties imposed for individual driving offences. The offender is subject to disqualification for repeated violations of the traffic laws within a limited (2 year) period. The essence of the disqualification is a civil sanction for misconduct over an extended period.

9.     The reference to 'finally convicted' in Article 11(6) BOR has two aspects:-

(a)     the same conduct may have more than one aspect/consequence :-

WIGGLESWORTH v R

(1987) 37 CCC (3d) 385

(Supreme Court of Canada)

It is submitted here that the individual driving offences and the liability to disqualification for accumulation of driving-offence points are different matters - separate one from the other - not alternatives; and

(b)     the payment of a fixed penalty notice does not amount to a 'final' disposition of an offence. Liability for the fixed penalty carries with a liability to driving-offence points under the schedule to Cap.375. There can be no 'final' disposition until expiry of the relevant 2 year period (i.e. to ascertain if the number of points giving rise to disqualification has been accumulated). Nothing in Article 11(6) BOR prohibits multiple penal consequences.

See :- R v Green

         (1983) 5 CCC (3d) 95

Conclusion

10.     It is submitted that nothing in the Road Traffic (Driving-Offence Points) Ordinance, Cap.375 nor that Ordinance taken with the Fixed Penalty (Criminal Proceedings) Ordinance, Cap.240 is inconsistent with the Bill of Rights (and in particular Article 11(6))."

8. Mr Watson retorts that there is nothing on the fixed penalty ticket which enables the offender to make an intelligent choice. He is not warned of the possible disqualification consequence which may flow from his paying the fixed penalty fine.

9. I have considered these submissions of counsel. In I fact there is only one ground of appeal and that is that the disqualification of the appellant under s.8 of the Road Traffic (Driving Offence Points) Ordinance Cap.375 must be considered as having been repealed as being inconsistent with Article 11 para.6 of the Bill of Rights Ordinance.

10. In my judgment, there is nothing in the Road Traffic (Driving Offence Points) Ordinance which is inconsistent with Article 11 para.6. This Ordinance is concerned with road safety and with the protection of the public from drivers who have shown by their conduct that they provide a potential danger, to members of the public.

11. In the first place, he has not been finally convicted or acquitted in accordance with the law and penal procedure of Hong Kong. The Fixed Penalty (Criminal Proceedings) Ordinance provides a way in which a person can, by paying the full amount of a fixed penalty, render himself not liable to be prosecuted or convicted for a scheduled offence.

12. However, that does not mean to say that he has not committed an offence. The whole basis of proceedings under this Ordinance is predicated upon the commission of a scheduled offence. The payment by him of a fixed penalty is indicative of the fact that he does not dispute having committed the offence. By so paying, he is not liable to be prosecuted or convicted for the scheduled defence. There are thus two ways in which a person may be punished for a scheduled offence. Either by prosecution and conviction and subsequent sentence, or by the proceedings under the Fixed Penalty (Criminal Proceedings) Ordinance, where he pays the fixed Penalty. Under both forms of procedure, disqualification may follow. In either case, a disqualification can hardly be described as punishing again.

13. On the question whether disqualification under s.8 can be regarded as punishment, the Canadian cases suggest that it should not be so regarded.

14. The Canadian Constitution Act of 1982 includes in Schedule B Part I the "Canadian Charter of Rights and Freedoms". Section 11(h) provides:-

"Any person charged with an offence has the right

...

...

(h)     if finally acquitted of the offence, not to be tried for it again and if finally found guilty and punished for the offence, not to be tried or punished for it again; ..."

15. It is therefore similar to Article 11 para. (6) of our Bill of Rights. Section 245(1) of the Motor Vehicles Act of the Yukon Territory provides:-

"(1) Subject to section 247.1, upon the conviction of a person of an offence under section 237 or 238 of the Criminal Code (Canada) in respect of a motor vehicle anywhere in Canada, he is disqualified from holding an operator's licence under this Act,

(a)     for not less than three months from the date of the conviction where he.has not been convicted of an offence under section 237 or 238 of the Criminal Code (Canada) in respect of a motor vehicle committed anywhere in Canada in the period of five years immediately preceding the date of the offence,

(b)     for not less than one year from the date of the conviction, where he has been convicted of one offence under section 237 or 238 of the Criminal Code (Canada) in respect of a motor vehicle committed anywhere in Canada in the period of five years immediately preceding the date of the new offence, or

(c)     for not less than two years from the date of the conviction, where he has been convicted of more than one offence under section 237 or 238 of the Criminal Code (Canada) in respect of a motor vehicle committed anywhere in Canada in the period of five years immediately preceding the date of the new offence."

16. In the case of Re Workman v. The Queen 37 C.C.C. (3d) 187, Borins J. said:-

"With respect to the s.11 (h) issue, it is my opinion that the disqualification provided by s.245 of the Motor Vehicles Act does not constitute 'punishment' within the meaning of that term in s.11(h) of the Charter but is a civil disability. In this regard, I rely, once again, on the Egan case, and by analogy on R. v. Wigglesworth (1984), 11 C.C.C. (3d) 27, 7 D.L.R. (4th) 361, 38 C.R. (3d) 388."

17. The Egan case was in fact a decision of the Supreme Court of Canada in it Appellate Jurisdiction.

18. In Re Bulmer v. Solicitor-General of Alberta 36 D.L.R. (4th) 688, McFadyen J. at p.690 commented as follows:-

"The issue whether provincial legislation providing for the automatic suspension of an operator's licence upon conviction for the offence under the Criminal Code constitutes an additional punishment for the offence, thus infringing upon the power of the Parliament of Canada to legislate in the field of criminal law has been decided by the Supreme Court of Canada. In the Provincial Secretary of P.E.I. v. Egan et al., [1941] 3 D.L.R. 305, 76 C.C.C. 227, [1941] S.C.R. 396, the Supreme Court of Canada considered whether similar licence-suspension legislation was in conflict with the Criminal Code provisions which authorize the imposition of an order prohibiting the person convicted of the offence from operating a motor vehicle on a highway in Canada. While the appeal was dismissed on other grounds, Rinfret J. commented on this issue and characterized the provincial licence-suspension legislation as follows at p.321 D.L.R., p.414 S.C.R.:

'The provincial legislation in question in this case is, with pith and substance, within the classes of subjects assigned to the provincial Legislatures; it is licensing legislation confined to the territory of Prince Edward Island.

It is not an additional penalty imposed for a violation of the criminal law. It provides for a civil disability arising out of a conviction for a criminal offence.'"

Later in his judgment McFadyen J. Further commented:-

"In Ross v. Registrar of Motor Vehicles et al. (1973), 42 D.L.R. (3d) 68, 14 C.C.C. (2d) 322, [1975] 1 S.C.R. 5, the Supreme Court of Canada considered an apparent conflict between federal legislation which permitted the issuance of a restricted prohibition, being one which prohibited the person from driving at certain hours or for certain purposes, and Ontario legislation which imposed an automatic absolute suspension of the operator's licence of that individual for a fixed period.

Pigeon J. giving the judgment for the majority of the Supreme Court of Canada relied on the decision of the Supreme Court of Canada in P.E.I. v. Egan and the decision of the Privy Council in Lymburn v. Mayland et al., [1932] 2 D.L.R. 6, 57 C.C.C. 311, [1932] A.C. 318, and stated as follows at p.80 D.L.R., p.13 S.C.R.:

'It should now be taken as settled that civil consequences of a criminal act are not to be considered as "punishment" so as to bring the matter within the exclusive jurisdiction of Parliament.'"

19. Later, after referring to the case of Re Barry et al. v. Alberta Securities Commission 25 D.L.R. (4th) 730, 67 A.R.222, 24 C.R.R.9, a decision of the Alberta Court of Appeal, he obtained some assistance from.the judgment of Stevenson J.A. as follows:-

"In the Barry case Stevenson J.A. sets out some useful guidelines for determining whether proceedings are criminal or quasi-criminal in nature or are merely civil proceedings. Stevenson J.A. held that the distinction between a criminal or quasi-criminal proceeding and a regular tort proceeding was whether the object of the legislation was to punish for the commission of the prohibited act or to protect the public by the regulation of future conduct. Where the real object of the legislation is the protection of the public by a scheme for regulating the future conduct of individuals who have committed past infractions, the proceedings does not come within the protection s.11 although the effect may be punitive."

20. If principles in the Canadian cases were to be followed in Hong Kong, clearly a disqualification should not be considered a punishment.

21. In my judgment disqualification is not a punishment but a civil consequence of an offence. However, even if a disqualification is to be regarded as a punishment, a person would not be punished again if he incurs a disqualification under the Road Traffic (Driving offence Points) Ordinance, Cap.375, s.8. A single act may have more than one consequence. A person would have to be finally punished, before it could be said that he has been punished again. The Supreme Court of Canada made it clear in Wigglesworth v. The Queen that where the law permits a variety of sanctions to be imposed in conjunction with other forms of punishment, a person is not finally punished until all possible penal consequences for the offence are exhausted. See Porter v. The Queen 48 C.C.C. (3d) 252 and Wigalesworth v. The Queen (Supra).

22. The appellant's sole ground of appeal does not refer to Article 10 of the Bill of Rights Ordinance and it is not really therefore necessary for me to comment on the argument in relation to that article. However, it does appear to me that Miss Mahomed's arguments as to the choice which a person has when proceedings under the points ordinance are commenced, certainly enable him to be heard.

23. For the above reasons the appeal is dismissed and the disqualification confirmed.