HKSAR v. TSUI WAI NIN

HCMA1294/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1294 OF 2000

(ON APPEAL FROM TMCC 3617 OF 2000)

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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 charges of careless driving, being Charge A; driving a motor vehicle with an alcoholic concentration in his breath exceeding the prescribed limit, being Charge B; driving while disqualified, being Charge C and using a motor vehicle without third party insurance, being Charge D. In respect of those offences, the appellant was sentenced to various levels of fine and a totality of four months' imprisonment. In addition, in respect of Charge B, he was disqualified from holding or obtaining a driving licence for two years. In respect of Charges C and D, he was similarly disqualified for 12 months in respect of each. As far as the totality of the disqualification period was concerned, the learned magistrate ordered that the period of disqualification for Charges B and D would operate from the date of the appellant's sentencing, whilst the period of disqualification in respect of the Charge C offence was ordered to operate from the end of the two years' disqualification imposed in respect of Charge B. That is a total period of disqualification of three years.

2. The facts of the case were that in September 2000, the appellant, a professional driver, collided with a motorcycle whilst attempting to turn right off Castle Peak Road between Yuen Long and Tuen Mun. The rider of the motorcycle was injured. Both vehicles were damaged. An ambulance and police arrived. The appellant apparently left the scene but was stopped by police as he was driving back towards Yuen Long. He was breath tested. That test revealed a concentration, initially, of 110 mg of alcohol in 100 ml of breath, some five times the prescribed limit. In a subsequent test, at the police station he was taken to, the appellant returned a test of 106 mg of alcohol in 100 ml of breath.

3. Five months earlier the appellant had been convicted of careless driving and of driving a motor vehicle with an alcoholic concentration in his breath exceeding the prescribed limit, and had been disqualified from holding or obtaining a driving licence for a period of 15 months. At the time of the present offences, therefore, the appellant was disqualified from driving.

4. Mr Fok, for the appellant, urges upon me one ground in his appeal against sentence and that is that the learned magistrate erred in principle by ordering the disqualification period of 12 months in respect of the offence the subject of Charge C, to run consecutively to the disqualification period imposed in respect of the offence the subject of Charge B. Mr Fok makes no complaint as regards any other aspect of the learned magistrate's sentencing.

5. So far as the present offence the subject of Charge C is concerned, i.e. driving whilst disqualified, that offence was contrary to the provisions of section 44(1)(b) of the Road Traffic Ordinance, Cap.374. Section 44(3) of that Ordinance says this about the disqualification period for such an offence :

"(3) The period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance." (emphasis added)

6. The offence the subject of Charge B, of driving with an excessive concentration of alcohol in the breath, was contrary to the provisions of section 39A of the Road Traffic Ordinance, Cap.374, that is, the same Ordinance. On the face of it, section 44(3) would, in its clear terms, seem to apply so as to not only entitle the learned magistrate to order the two periods of disqualification to run consecutively to each other, but to require him to do so, as he did.

7. However, Mr Fok has brought to my attention a number of authorities relating to judgments of single judges in this court. Those authorities are relied upon by Mr Fok as support for his argument that where driving disqualification periods are imposed following convictions for offences arising out of the same driving incident then regardless of the terms of section 44(3), those periods of disqualification should be ordered to run concurrently.

8. It is important to note that in all of those cases, the sole offences before the court were the two of driving while disqualified and using a motor vehicle without third party insurance.

9. In R v. Lau Hon Tung, MA21/1990 (unreported), which is perhaps the originating authority as far as this area of sentencing is concerned, Ryan J said :

"It is a practice of the court to pass concurrent sentences for two offences arising out of the same facts. As the Crown quite properly concedes in this matter the two offences did arise from the same transaction, the offence of using a motor vehicle without third party insurance arose entirely out of the fact that the appellant was found to be driving while disqualified. In the circumstances, I am satisfied that the magistrate was wrong to impose consecutive disqualifications. ..."

10. In two more recent cases, R v. Lam Siu Fung [1995] 2 HKC 261 and R v. Tang Sik Hung [1995] 1 HKC 723, this court found that section 44(3) did not allow an order that the period of disqualification pursuant to an offence under section 44(1) of the Road Traffic Ordinance, operate in addition to an order for disqualification made pursuant to an offence contrary to section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

11. In my view those judgments were really dealing with the issue as to whether section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance operated to bring an order for disqualification under that Ordinance within the ambit of the Road Traffic Ordinance by deeming any such order to be an order pursuant to the Road Traffic Ordinance, so that section 44(3) of the latter Ordinance applied to require that consecutive disqualification periods be ordered; the point being of course that section 44(3) only operates to make a disqualification period imposed under section 44(1) of the Road Traffic Ordinance consecutive to any other disqualification period made pursuant to the provisions of that same Ordinance.

12. Any views expressed in those judgments as to the operation of section 44(3) being restricted to making periods of disqualification imposed under section 44 be in addition only to pre-existing orders for disqualification are plainly obiter.

13. In the present case, the offences before the magistrate were both pursuant to the provisions of the Road Traffic Ordinance. That immediately, in my view, distinguishes the reasoning of the judgments in the cases of R v. Lau Hon Tung, R v. Tang Sik Hung and R v. Lam Siu Fung (supra). Further, these offences were independent of one another in a way that the offences of driving while disqualified and using a vehicle without third party insurance are not. Whilst these offences arose, or more accurately, were exposed as a result of the same incident, to my mind, they were wholly independent and different in nature, and contrary to quite different provisions of the Road Traffic Ordinance.

14. Crucially, in my judgment, the terms of section 44(3) are clear and unambiguous. The subsection refers to the period of disqualification imposed under the section "being in addition to any other period of disqualification". Again, my emphasis is added. If the legislature had wished to restrict the operation of the subsection to only specific other periods of disqualification, then in my view, that would appear expressly in the subsection. The obvious intention of the legislature was that any period of disqualification from driving imposed as a result of a conviction for an offence contrary to section 44(1) of the Road Traffic Ordinance run in addition to any period of disqualification imposed for any other offence contrary to the provisions of the Ordinance regardless of whether those offences overlapped in time or in their circumstances or not. In my view, that is because the legislature was well aware of the serious practical consequences which could be occasioned by a person driving while disqualified.

15. Accordingly, in the present case, the learned magistrate, in ordering that the period of disqualification imposed in respect of the offence of the appellant driving whilst disqualified commence at the end of the period of disqualification imposed in respect of the offence of driving with more than the prescribed concentration of alcohol in his breath, was doing no more than was plainly required by the terms of section 44(3) of the Road Traffic Ordinance.

16. For those reasons, the appeal is dismissed.