R. v. WONG PO WING

IN THE COURT OF APPEAL

1992, No. 340
(Criminal)

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J U D G M E N T

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Hon Yang, CJ:

1. On 13 August 1992, the applicant pleaded guilty before H H Judge Moylan to one charge of taking away a conveyance without authority, contrary to S.14(1) of the Theft Ordinance, Cap. 210, and another charge of theft, contrary to S.9 of the same Ordinance. He was sentenced to 10 months' imprisonment for the first charge and two years and six months' imprisonment for the second charge, the two sentences to run concurrently.

2. In this application for leave to appeal against sentence, we are concerned only with the trial judge's order in respect of the first charge that the applicant be disqualified from holding or obtaining a driving licence or permit to drive a motor vehicle for a period of 18 months from the date of sentence. The order was made under S.69(1) (d) of the Road Traffic Ordinance, Cap. 374.

3. In his address to this Court, the applicant stresses that, with remission, he is due to be released from prison on 19 July 1993, but the disqualification will not be removed until March 1994. The only skill he has is that of driving. The lack of a valid driving licence will deprive him of his livelihood.

4. In his Reasons for Sentence, the learned trial judge noted that the applicant was in need of money to make his monthly hire-purchase payments for a vehicle he was then hiring. He therefore permitted himself to be induced by another to steal a medium goods vehicle with its load. The load consisted of silk (valued at $400,000), polyester (valued at $400,000), linen ($900,000), silk lining ($50,000), and underlying fabrics and other items (valued at $200,000). The judge found that the applicant "went about the commission of the offences in a methodical way, watching the loading of the vehicle at Tai Kok Tsui area and then following it to where it was parked, locked, in Kowloon Bay area". And "he had with him the equipment necessary to effect entry to start the engine and to drive the vehicle away".

5. However, the judge gave no reason for making the order of disqualification. Mr Saw acting for the Crown suggests that it may be that the order was made to discourage the applicant from stealing another vehicle, or perhaps taking a vehicle away for a joy-ride. We have difficulty, however, in seeing how the lack of a valid driving licence is to deter a person from driving away a vehicle when his purpose in so doing is to doing is to steal the goods which it is carrying.

6. In R. v. Wright [1979] 1 Cr. App. Rep. (S) 82, the appellant was sentenced to a total of two years and nine months' imprisonment for attempting to steal a quantity of sheet metal. He was also disqualified from driving for four years. He was previously employed as a taxi driver and wished to resume that occupation. In his judgment, Jupp, J. said (P. 83): -

" It is of course the policy of the law that once a man has served the imprisonment which is passed upon him as a punishment he should be given every help and consideration in re-establishing himself in an honest life and particularly in earning a living. A period of disqualification such as this really presents to the applicant a tremendous handicap and is, possibly, a stimulus for him going back to commit further crime in order to get money when, without this handicap, he could make money honestly as a taxi driver. Accordingly this Court is very clear that the disqualification imposed on him - and it was imposed on one of his co-defendants who had driven his own van in the second part of the enterprise - was wrong and was wrong in principle."

7. In The Queen v. WONG Wah-kwok [1989] 1 HKLR 297, Barnes, J. followed Wright.

8. We agree. We do not think that there is anything on the facts of this case to suggest that an order for disqualification should have been made.

9. We accordingly allow the application, treat the hearing of the application as hearing of the appeal and allow the appeal. The order for disqualification is set aside.