HKSAR v. BALI, SHARAN PAL SINGH

HCMA 425/2016

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 425 OF 2016

(ON APPEAL FROM FLS 2944 OF 2016)

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J U D G M E N T

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1.  The Appellant pleaded guilty to one charge of failing to give information on demand contrary to s 63(1)(a) and (6)(a) of the Road Traffic Ordinance (Cap. 374) ( the Ordinance) before a Special Magistrate [1] on 11 July 2016. The Appellant was fined $9,000. He now appeals the sentence.

Grounds of Appeal

2.  The Appellant is not legally represented and did not file any grounds of appeal.  It is stated in his Notice of Appeal (Form 102) that the sentence was too severe.  He complains that the fine is excessive.  There was no complaint as to his affordability of the fine as his income is $40,000 a month.  In his oral submissions before me the Appellant expressed grievance as to the view formed by the Special Magistrate of him and the finding that his failure to provide particulars was deliberate.  

Summary of Facts

3.  The driver of a vehicle with registration number SN 9026 was suspected of having committed the offence of speeding in excess of 27 km/h on 27 September 2015.  The Appellant was the owner of this vehicle. 

4.  A statutory demand notice, in accordance with s 63(4) of the Road Traffic Ordinance (Cap 374) was served on the Appellant (as owner of the vehicle) on 21 December 2015 for him to produce a signed, written statement in the form specified in the notice giving the name, address, and driving licence number of the driver of the said vehicle at the time of the alleged offence and his relationship, if any, to such driver within 21 days after 21 December 2015 to the specified police officer PC 54775.  The Appellant failed to provide the particulars of the driver as required.

Special Magistrates Reasons for Sentence

5.  The Special Magistrate highlighted the maximum penalty of the offence was $10,000 and 6 months’ imprisonment.  He noted the Appellant’s driving and traffic records and was of the opinion that his record was appalling.  

6.  He cited and followed the principles laid down by the Court in HKSAR v Yeung Wai Yin, Hera HCMA 433/1998. 

7.  In his reasons for sentence, the Special Magistrate gave detailed reasons for arriving at the sentence of which he admitted was on the high side. He noted that the Appellant was a repeat offender with a long list of driving offences including one similar offence. 

8.  He took the view that the Appellant knew the rules of the game and had utilised this loophole in the law.  Consequently, he adopted a deterrent sentence to issue a clear warning to the public that an owner, and in particular suspected drivers, should be discouraged from buying the driver out of criminal liability or buying a driver out of the driving offence points with the need for repeat offenders of this kind to be heavily punished.

9.  The Special Magistrate took the view that the Appellant was the suspected driver and that his failure to provide the requested particulars was a deliberate act for the purposes of buying out driving offences points. 

Respondents Submissions

10.  Mr Leung Public Prosecutor for the Respondent submits that the Special Magistrate was correct in applying the principles for the offence as per Yeung Wai Yin Hera (supra) and that a deterrent sentence was applicable for the reasons stated. 

11.  However, Mr Leung conceded that the fine of $9,000 upon the Appellant after his guilty plea was excessive as it had the effect of adopting a starting point of $13,500 which is clearly above the statutory maximum of $10,000.  He submitted that there should be a downward adjustment of the fine. 

Discussion

12.  Section 63 of the Ordinance places an obligation on the owner of a vehicle to give certain information, in this case the details of the driver of the vehicle with registration number SN 9026 on 27 September 2015.  The maximum penalty under s 63 for failing to do so is $10,000 and 6 months’ imprisonment. 

13.  Deputy Judge To (as he then was) said in Yeung Wai Yin Hera (supra)

“In order that our road traffic laws can be effectively enforced, owners who fail to provide particulars of the drivers must be given a substantial sentence to deter them from frustrating the purpose of the law, or buying out criminal record or driving offence points for the driver. ….

Cases where the identity of the driver is material are cases where the driver will be subject to other criminal or civil liability or will incur driving offence points.”

14.  In his oral submissions at this hearing, the Appellant submitted that his failure to provide particulars was not deliberate.  He said that he had lent his car to two friends, he had asked his friends to provide him with their particulars but they did not do so, therefore in those circumstances he pleaded guilty and told the Special Magistrate in mitigation that it was his mistake. 

15.  From the transcript of the hearing before the Special Magistrate it can be seen that the Appellant was asked if he had anything to say in mitigation. He replied “Nothing, Sir, Nothing.”  He was asked if he had a job and he replied “It’s my mistake.” Given the opportunity to advance further mitigating factors he replied “Nothing, Sir, It’s my mistake…”  It is clear that the Appellant made no mention of lending his car to his friends nor that they failed to provide him with particulars before the Special Magistrate.  If he had done so, this may well have been a defence to the charge and in any event the plea of guilty would have been equivocal.  The Appellant is a legal executive by occupation.  I am satisfied that those statements were not said before the Special Magistrate as the Appellant made an unequivocal plea of guilty to the charge knowingly revealing little or nothing in mitigation.  I reject his further plea in mitigation before me. 

16.  The special Magistrate was correct to find that that the Appellant’s failure to provide the particulars was deliberate and to draw the irresistible inference that the Appellant did not want to incur any driving offence points.  It was appropriate for the Special Magistrate to draw that conclusion on the basis of the Appellant’s appalling driving record and previous similar conviction, noting:

“he had been disqualified from driving under the Driving Offence Points Ordinance for 3 times. He got 2 fixed penalty tickets for jumping red lights and 10 fixed penalty tickets for speeding in the past.”

17.  The Appellant was suspected of speeding in excess of 27km/h over the limit.  The maximum sentence in respect of that offence is $450 and 3 driving offence points.  At the present hearing, Mr Leung confirmed that the Appellant was qualified to drive on 27 September 2015 (the date of the speeding offence) and if he had incurred these driving points it would not have resulted in his disqualification. 

18.  By referring to Yeung Wai Yin Hera (supra) the Special Magistrate was correct in adopting a fine of $4,500 as the starting point if the Appellant had a clear record.  The Appellant had one previous similar record in 2014 to which he was fined $1,000 (the Special Magistrate remarking that he was dealt with leniently).  The Special Magistrate was entitled to take that into account and make an upward adjustment of the starting point. 

Conclusion

19.  The Appellant’s failure to provide particulars was deliberate, he was a repeat offender, the Special Magistrate was correct to impose a deterrent sentence and state that repeat offenders should be heavily punished.  The identity of the driver in this case was material, if the driver was the Appellant he would have incurred driving offence points. 

20.  The sentence imposed upon the Appellant was manifestly excessive as it exceeded the maximum fine.  The appeal is allowed to the extent that there be a downward adjustment of the fine and the fine to be imposed taking into account the Appellant’s guilty plea is one of $6,000.