THE QUEEN v. CHAU KWONG LOI

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY APPEAL NO. 748 OF 1988

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J U D G M E N T

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1. The appellant was convicted on his own plea of guilty in the Magistrates Court of two offences, one of driving a motor vehicle whilst disqualified from driving and the other of driving without third party insurance.

2. The offences were committed on the 23rd July. The appellant was stopped by a party of police who were doing radar patrol duty on the Tolo Highway near The Chinese University. He was driving the vehicle at about 10.25 p.m., and had with him as passengers, his wife (who was the holder of a valid driving licence) and three children apparently all under the age 10. He was stopped not because he was observed to be then committing any breach but because he was recognised by one of the officers as a person the officer had earlier charged with committing a motoring offence.

3. In mitigation it was put before the Magistrate that the appellant had that evening just returned from an overseas business trip, that his wife and children had met him at the airport that the wife then drove the vehicle from the airport to the appellant's business premises in Tsimshatsui, and that before the next leg of the journey from Tsimshatsui to their home began the wife felt too unwell to drive. It was under those circumstances that the defendant although disqualified decided to drive the vehicle. A medical certificate was tendered to the Magistrate to the effect that the wife had had a medical consultation earlier that same day.

4. It appears that the appellant has never held a valid Hong Kong driving licence but was in possession of a provisional driving licence issued in Australia.

5. In sentencing the appellant, the Magistrate took account of his motoring record which showed that he had previously been disqualified from driving. And although his record indicated that he should have at one time been charged with driving whilst disqualified, the fact of the matter is that he was never charged and has no previous conviction for an offence of driving whilst disqualified. He had appeared before the same learned Magistrate almost two months earlier on charges of speeding and driving without 3rd party insurance. The disqualification order was made consequent upon his conviction on the latter charge. The Magistrate says that when he disqualified the appellant on that occasion he not only explained the meaning of disqualification but warned him of the "dire consequences which might befall him if he were foolish enough to drive during the period of disqualification".

6. The Magistrate regarded the offence as a flagrant defiance of a court order. He came to the conclusion that the circumstances in which the appellant came to drive "could not by any stretch of the imagination be described as an emergency." With that, I agree.

7. There have been a nubmer of cases in which, although people convicted of driving licence diqualified have been sentenced to a term of imprisonment, the terms have been suspended.

8. Mr. Cheng Huan, who now appears for the appellant - he did not appear for him at the lower court  has drawn to my attention a number of cases in which on appeal sentences have been suspended. In one of those cases I had occasion to reveal early decisions in which this had been done. Since that decision there has been a decision of Bewley J. in which he on appeal, ordered today the sentences be suspended.

9. In the cases to which I referred in my earlier judgment and in that case itself, there were either personal circumstances peculiar to the particular offender or circumstances surrounding the commission of the particular offence which warranted the exercise of the discretion to suspend the sentence. The cases establish that if the breach is a flagrant. breach, and there are no such know such personal circumstances, then there is no case for an order for suspension.

10. In all of the cases except one, there were circumstances put forward by way of mitigation. In one case a man was driving late at night in order to go to a relative to prevent a threatened suicide. He was unable to get a taxi because the taxi driver was not willing to take a fare to the New Territories and run the risk of not getting a fare back to Kowloon.

11. In another case, the offender drove late at night time in order to go home to his wife who was pregnant and who had telephoned him asking him to come home urgently.

12. In all of those cases, there was some situation of emergency and a plea that alternative transport was not readily available. In this case no reason has been advanced as to why the appellant and his family could not have made their way home by train. That area of the New Territories is served by a very efficient train service available at the hour when the appellant drove.

13. In the one case where there was an order for suspension but no such circumstances existed Bewley J. suspended the sentence as an act of the mercy. In that case, the offender was the sole breadwinner of the family and the family would have suffered tremendous hardship if he had served the sentence of immediate imprisonment originally imposed. In this case, Mr. Cheng Huan has pleaded with me to extend an act of mercy to the appellant. There is no doubt that there will be hardship imposed on his family if he does have to serve the term. On the other hand, he is a mature man, obviously an intelligent man, who has built up for himself a successful business, a business so successful that he needs to employ 15 people in the running of it. There is no doubt this family do depend upon him for support but there is equally no doubt that his business can run at least for a short period in his absence. He has shown a repeated disregard for our traffic law. To my mind he merits no consideration at all as regards the exercise of a discretion to suspend the sentence. I can see nothing wrong with the sentence which the learned Magistrate imposed. In the circumstances, I see no ground for interfereing and I, accordingly, dismiss the appeal.