HKSAR v. TONG CHI WAH

HCMA691/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.691 OF 1998

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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 permitting a motor vehicle to be driven by a person not holding a valid licence, and permitting a motor vehicle to be used without third party insurance. He was, in the first instance, on the insurance charge fined $3,000 and disqualified from holding a driving licence for 12 months. Subsequently, there was a review of sentence when the Magistrate reduced the fine for the insurance charge to $1,500 but upheld the disqualification order.

2. The Appellant now appeals against the disqualification order on two grounds : the first being that the learned Magistrate failed to distinguish defence from mitigation - that special reasons for not imposing disqualification or reducing the period of disqualification does not amount in law to a defence. The second ground is that the learned Magistrate failed to consider or consider sufficiently that the Appellant had not only an honest, but also a reasonable belief that the 1st Defendant in this matter, who is the person that he permitted to drive the vehicle, had a valid licence on the day in question.

3. The facts of the case are that the Appellant hired out the taxi, the management of which had been contracted out to him, to the 1st Defendant in this matter. The 1st Defendant did not have a valid licence and that is why the charges were brought. The learned Magistrate set out in his Reasons for Sentence in brief form his thought processes, but it is proper to look at the rather more extensive reasons which he gave at the time of imposing the disqualification. In effect what he said was that this Appellant hiring out the taxi as a public service vehicle had a positive obligation to check that the hirer was a properly licenced driver. He went on to consider the fact as put forward by the Appellant's legal representative in support of an application to apply special reasons for non-disqualification, or for reduction of the mandatory disqualification.

4. It is clear from those reasons that the learned Magistrate did not in any way confuse a defence with a set of special reasons - there is no defence to this charge of permitting driving without insurance. What the Magistrate was saying, as I read his Reasons, was that the onus on a person hiring out a public service vehicle is under a rather greater onus to check the validity of licences than is another person. The learned Magistrate accepted that the Appellant had an honest belief that the other driver held a valid licence, but he did not hold that it was a reasonable belief. The learned Magistrate quite clearly did not fail to consider or consider sufficiently the question of reasonable belief. He went into the question of reasonable belief at some length in giving his reasons for disqualification to the Appellant at the time of imposing the disqualification. It was in the discretion of the learned Magistrate to find, or not to find, special reasons for non-disqualification or for reduction of the disqualification, and it cannot be said that he failed to exercise his discretion in a proper manner.

5. Certain cases have been cited to me in support of the proposition that this Appellant had a reasonable belief, but I think that these cases have to be taken on their own facts. What the Magistrate considered and what did not apply in those cases was that in this case the Appellant was hiring out a public service vehicle to a professional driver who, by the nature of his work is at risk at all times of committing minor traffic offences, and collecting penalty points which ultimately may result in disqualification.

6. It seems to me that the learned Magistrate was not wrong in holding that the Appellant's belief whilst honest was not reasonable. Accordingly, this appeal falls to be dismissed.