THE QUEEN v. CHU KEUNG-SING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 1054 OF 1985

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BETWEEN

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JUDGMENT

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1. On the lst of March the appellant was speeding. He exceeded the speed limit by 29 k.p.h. He was travelling 99 k.p.h. in a 70 k.p.h. zone. For that offence he was summonsed to which he pleaded guilty. He was fined $900.00, penalised in costs for his absence on the first occasion and he was disqualified from driving every type of vehicles for 12 months.

2. He had two previous convictions of a similar nature, one in, I am told, 1983 and another in 1985. He was fined on the first occasion, $350.00 and on the second $200.00. His computerized records of traffic convictions were placed before the learned magistrate and are here to-day. There is no evidence, one way or the other, what type of vehicle the appellant was driving on each of those two occasions in 1983 and 1985. As for his present conviction, the appellant had at the material time the use of a private car.

3. In the records of appeal, at page 4, as recorded by the learned magistrate, the appellant described himself as an electronics salesman. In mitigation, it was said that the offence was committed on his way to his wife in hospital in response to a call.

4. With leave of the Court, counsel for the appellant supplied particulars to the effect that the appellant has since 1977 been, what may best be described as, a professional driver: From 1977 to 1984, he was an employed driver for Cenon Co. Ltd.; from September 1984 to April 1985 he was engaged as a salesman cum driver by Kenco Electronics Ltd.; from 1985 May onwards he has been engaged as a van driver by Real Base Co. Ltd. A letter from the last-mentioned limited company was submitted.

5. All this additional evidence was not objected to by the Crown. Mr. Wong appearing for the appellant referred me to the case of R. v. Mo Wing, a judgment of which was delivered by the Court of Appeal on 22nd November 1985. In those proceedings, such misgivings there were on the proper interpretation of section 69(2) were finally laid to rest. That the Court indeed enjoys a discretion in the selection of categories of vehicle to be brought under pain of disqualification cannot now be doubted. It is patently clear that the learned magistrate was never fed the sane information as I now have; nor did he, so I was told, have the benefit of the judgment of the Court of Appeal, which resolved the unsettled views as regards section 69(2).

6. Counsel for the respondent did not seek to have the instant appeal stood adjourned for proper enquiries to be made or for further information to be supplied. Counsel acknowledged the force of the Respondent's arguments and was content to leave the matter in the hands of the Court.

7. In the light of all these circumstances, with only evidence against the appellant in the use of a private car, there is no valid reason why judicial discretion should not be exercised in his favour by limiting disqualification to only the category of private cars alone so as to enable the appellant to continue to use other categories for the purposes of his calling and livelihood. It is hoped that in the use of other permitted categories within the ambit of his driving licence, the appellant will exercise more caution than he had been in the past. I am prepared, therefore, to accede to counsel's request and exercise my discretion as requested. I order that this appeal be allowed, sentence set aside to the extent that disqualification for the period set by the learned magistrate be limited only to the classification of private cars.