THE QUEEN v. MA CHUN SHING

Power to disqualify from holding or obtaining a driving licence non-exercisable for a breach of the Road Tunnels (Government) Regulations, Cap. 368

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 482 of 1984

___________

JUDGMENT

___________

1. The appellant was convicted of a breach of regulation 9(g) of the Road Tunnels (Government) Regulations 1981, Cap. 368 which provides:

"No person shall in any tunnel unless directed or signalled by an authorized officer ...... cause or permit a vehicle to cross any continuous double lines marked on the surface of a road."

2. The punishment for that offence, set out in regulation 18, is a fine of $5,000 and imprisonment for 6 months.

3. He appeals against conviction only.

4. There was evidence before the magistrate for him to find the appellant guilty once he accepted the testimony of TAM Chi-chiu who testified he was forced to brake abruptly on the appellant crossing the double white line ahead of him inside the Lion Rock Tunnel. Tam was obviously annoyed at the conduct of the appellant's driving because he flashed his headlights at the appellant as they went through the tunnel and, on reaching the toll booth he shouted at the appellant through the window of his vehicle complaining of his manner of driving in having crossed the double white line. He also reported the incident to an official. In the course of his trial the appellant said that the official asked him to remain there and make a statement but since he was in a hurry he gave the official his name and vehicle registration number and drove off.

5. In his defence the appellant agreed Mr. Tam. flashed his lights at him inside the tunnel and that a report was made to the tunnel official who asked him to stay and provide a statement but he claimed he reached the tunnel ahead of Mr. Tam and did not cross the double white line.

6. The magistrate took the view there had been some competitive driving between Mr. Tam and the appellant in their approach to the entrance to the tunnel. He believed the evidence of Mr. Tam and convicted the appellant. He had the advantage of seeing the witnesses and of assessing their credibility and this court cannot say he erred in reaching the conclusion he did. The appeal against conviction is dismissed.

7. The magistrate fined the appellant $800 and ordered him to pay $l00 costs. There is no appeal against sentence. However the magistrate also made an order disqualifying the appellant from driving for one month. This order was made on the 17th July 1984.

8. In making this order of disqualification the magistrate said:

"The Ordinance prescribes a fine of $5,000 for this kind of offence and gives the court powers of disqualification (see section 5 of the Road Tunnels (Government) Ordinance, Cap. 368 and section 23(1)(a) of the Road Traffic Ordinance, Cap. 220."

9. Section 5 of Cap. 368 provides:

"Unless the contrary intention appears from this Order, the Road Traffic Ordinance shall apply to a tunnel as if a tunnel were a road within the meaning of that Ordinance."

10. Section 23(1)(a) of Cap. 220 empowers a court to disqualify from holding or obtaining a driving licence any person convicted of any offence under that Ordinance or under any regulations made thereunder in connexion with the driving of a motor vehicle.

11. In my opinion there is no power for the court to make an order of disqualification on conviction for a breach of regulation 9 of Cap. 368. All section 5 does is to bring tunnels under Cap. 368 within the definition of a road in the Road Traffic Ordinance and the power to disqualify, under section 23(1)(a) of Cap. 220 is limited to those specified offences committed in breach of Cap. 220 or in breach of regulations made under Cap. 220 which arise in connexion with the driving of a vehicle.

12. This was not a prosecution for an offence under Cap. 220 or for an offence against a regulation enacted under Cap. 220.  It was a prosecution for an offence in breach of regulation 9(g) enacted in pursuance of the powers confirmed by section 20 of Cap. 368.

13. If, for example, a driver drove his vehicle which was dangerously overladen through the tunnel and was prosecuted for that offence under the Road Traffic (Construction and Use) Regulations then he would not by virtue of section 5 of Cap. 368 be able to argue that the tunnel was not a "road" for the purpose of Cap. 220 since section 5 applies the definition of the tunnel to the Road Traffic Ordinance.

14. This actual offence was one committed in connexion with the driving (or handling) of the vehicle, (see CHEUNG Chor-suen v. R. Crim. App. 318/82 and R. v. YIP Wai-kay [1962] H. K. L. R. 335), and the Crown could have prosecuted the appellant for an offence either of careless or dangerous driving under the Road Traffic Ordinance had it so chosen when, in such circumstances, the magistrate could have considered whether to exercise his discretionary power to disqualify under section 23(1)(a) of Cap. 220. But this was not such a prosecution. Accordingly the appellant was given leave to apply for leave to appeal against sentence out of time and his application was granted. The order of disqualification being beyond the power of the magistrate it was quashed. It is ordered that any recorded endorsement of disqualification made pursuant to the magistrate's order is to be removed by the proper authority.