HKSAR v. KWAN CHUNG WA

HCMA471/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 471 OF 2005

(ON APPEAL FROM KTCC 2116 OF 2005)

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J U D G M E N T

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1. The appellant pleaded guilty to three charges, namely, (1) driving whist disqualified; (2) using a vehicle without third party insurance; and (3) picking up passengers in a restricted zone.  He was sentenced to 6 months’ imprisonment and 12 months’ disqualification on Charge 1, 2 months’ imprisonment and 18 months’ disqualification on Charge 2, and an absolute discharge in respect of Charge 3.  The sentences of imprisonment and disqualification were ordered to run concurrently.  He now appeals against the sentences of imprisonment in respect of Charges 1 and 2 on the grounds that they are too severe.

2. The appellant was driving a public light bus, picking up and alighting passengers in a restricted zone.  He was stopped by a police officer who discovered that he had been ordered by a court to be disqualified from driving under the points system just some three weeks ago.  The appellant claimed to act as a relief driver and had driven for some seven hours prior to being stopped.  

3. The respondent, in reply, submitted that given the appellant’s bad driving record and the circumstances of the present case, it is not wrong in principle to impose an immediate custodial sentence.  Counsel for the respondent concedes that the starting point adopted by the magistrate is on a high side but submitted that given the aggravated circumstances, and taking into account the maximum term of imprisonment in respect of the Charge 1 is 12 months, the overall 6 months on a plea in respect of two charges is justified.  However, he draws to my attention that section 12(2)(b) of the Road Traffic (Driving Offence Points) Ordinance (“the Ordinance”) does not empower a court to make a disqualification order, thus the order so made in respect of Charge 1 is wrong in principle.  

4. The magistrate listened to mitigation advanced by the appellant.  He was drawn to the attention that the appellant had three previous criminal convictions, one of which was similar to Charges 1 and 2.  His driving record, comprising some 12 pages, was described as “appalling” by the magistrate. 

5. I find the following passages from various judgments helpful :

(a)	In the case of HKSAR v. Lui Wing Han, HCMA502/1997, Yeung J said :
	“	Driving while disqualified and hence, without third party insurance, is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.
		A term of imprisonment for driving without third party insurance is normally called for.  Whether such term of imprisonment will be suspended or not is a matter for the trial judge to decide depending on the circumstances of each case….”
(b)	In HKSAR v. Liu Yim Hung, HCMA267/1998, Deputy Judge Muttrie said :
	“	… 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….”
(c)	The next case is HKSAR v. Ng Suen Wai, HCMA375/2003, Beeson J whilst stating that the distinction between someone who had been disqualified due to accumulation of driving points and someone disqualified after a conviction for a serious driving offence was unjustified, said :
	“	The courts, rightly, treat breaches of disqualification orders very seriously.  A major component of punishment for such breach must be deterrence, both specific to the offending driver and, importantly, as a means to discourage other drivers from following similiar driving practices….”
	She then went on to say :
	“	… The negating of third party cover, means the presence of disqualified drivers on the road is a serious danger to others.”

6. I share the magistrate’s view that this was a bad case of driving whilst disqualified as the appellant, driving a public light bus at the time when he knew full well that he had been disqualified a short time ago, demonstrated that he turned a blind eye to the fact that passengers were left without any protection of insurance should any accident occur, the risk of which, given his appalling driving record, cannot be said to be negligible. 

Therefore, apart from a flagrant disregard of court’s order of disqualification, he was indeed in breach of trust which passengers reposed in him and indeed expected from him as a competent and insured driver. 

7. The respondent has correctly pointed out to be that for cases of this sort imprisonment sentences are the norm and indeed, are inevitable. 

8. It is worth noting that in most, if not all, of the cases cited, a starting point of three months was adopted and reduced to two months on a plea of guilty.

9. I then referred myself to the case of HKSAR v. Chan Wai Bun, HCMA1174/2004.  The appellant there was a taxi driver.  He was charged for stopping in a restricted zone and it was discovered that he drove whilst disqualified and thus without third party insurance.  Referring herself to previous authorities, Deputy Judge Toh concluded that a starting point of three months’ imprisonment reduced to two months’ on a plea in respect of the driving whilst disqualified charge was appropriate.

10. Whilst the appellant here had one similar record of driving whilst disqualified and using a motor vehicle without third party insurance, that was back in 1990, he was fined and disqualified on that occasion.  I see nothing peculiar in the personal circumstances of the appellant which takes this case out of the ordinary for a suspended sentence to be imposed. 

11. I find immediate custodial sentence in respect of the first two charges appropriate and not wrong in principle.  However, the starting point of 9 months’ imprisonment in respect of Charge 1 seems to be out of line with the existing authorities.  I am of the view that a starting point of 3 months is justified and on a plea guilty, reduced to 2 months.  Furthermore, Charge 1 was brought under section 12(2)(b) of the Ordinance which does not empower a court to impose a disqualification order. 

12. So I allow the appeal against sentence in respect of Charge 1 to the extent that the sentence of imprisonment and disqualification are quashed and replaced by 2 months’ imprisonment.  The appeal against sentence in respect of Charge 2 is dismissed.  The sentence of imprisonment in respect of Charges 1 and 2 to run concurrently.