HKSAR v. LAU YIN CHUN LUCILLA

HCMA444/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.444 OF 2004

(ON APPEAL FROM KTS2465 OF 2004)

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J U D G M E N T

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1. The appellant pleaded guilty on 25 March 2004 to a summons which alleged that she, being the driver of a private car, did cause or permit the said vehicle to travel at a speed of 116 kilometres per hour, which exceeded the speed limit indicated by a speed limit sign as prescribed by Figure No.7 in the Schedule of the Western Harbour Crossing Bylaw, made under the Western Harbour Crossing Ordinance, Cap.436 ("the Ordinance"). The speed limit in force at the time was 70 kilometres per hour. She was fined $1,200 and disqualified from holding or obtaining a driving licence for all types of vehicles for a period of six months. The order was made by Mr Chan Yan Tong sitting in Kwun Tong Magistracy. On 8 April 2004, the appellant applied for a review of the order but the application was rejected by the magistrate. The appellant now appeals against the order of disqualification on the ground that the magistrate had no power to impose such an order under the Bylaws of the Ordinance.

2. The power enabling the Western Harbour Tunnel Company Limited ("the Company") to make bylaws was given to it by section 32 of the Ordinance. Section 32(4) provides that bylaws made under that section may provide that a contravention of any specified provision thereof shall be an offence and may provide penalties therefor not exceeding a fine of $5000.

3. The offence itself was created by section 7 of the Bylaws made under the Ordinance and the penalty section in section 25 provides that a person who contravenes, inter alia, section 7 shall be guilty of an offence and shall be liable on conviction to a fine at level 2.

It is significant to note that neither under section 32(4) of the Ordinance nor under section 25 of the Bylaws is there provision for the penalty to include a disqualification order from holding a driving licence.

4. It is common ground between the parties on appeal that prosecutions for offences committed contrary to the Bylaws made under the Ordinance can be initiated by the Company in the name of the Company and the procedure is that the Company has to lay an information before a magistrate and a summons is then issued against the particular defendant. On the hearing date of the summons the Company is represented by a solicitor from the same firm as Mr Philip Tang who appeared before me on the appeal. It is also common ground that if an offence not covered by the Bylaws is committed by a person, for example, dangerous driving or careless driving, which the company considers sufficiently serious, then the matter may be referred to the police who, after inquiries, may initiate a prosecution under the Road Traffic Ordinance or indeed any other ordinance if an offence other than a driving offence was committed.

5. In the instant case, what was alleged against the appellant was simply that she had driven in excess of the speed limit in force at the time and there is no allegation that she had committed any other offences. When the magistrate imposed the disqualification order, he relied upon section 69(1)(h) of the Road Traffic Ordinance, Cap.374, which says :

"(1) Without prejudice to any other provision relating to the penalty that may be, or is required to be, imposed for an offence, a court before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court thinks fit -

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(h) any offence during the course of which, or in order to escape apprehension for which, he uses a motor vehicle."

6. In R. v. Ching Tai Wai [1987] 3 HKC 573 the facts were quite different in that the two drivers involved in that case had each caused criminal damage to the other vehicle after each driver had alighted from the vehicle that he was driving. In addition to fines the magistrate also invoked section 69(1)(h) of Cap.374 to disqualify both drivers from driving. Garcia J held that the magistrate did not have the necessary jurisdiction from the section to exercise his discretion in imposing the disqualification order and, at page 575, he said :

"... This section, in my view, is aimed primarily at the specific use by the driver of a vehicle to commit an offence, such as robbery, or of a get-away car to escape apprehension. ..."

7. Mr Leung, appearing for the appellant, submits that the magistrate was influenced by section 41 of the Road Traffic Ordinance which said that if a person driving a vehicle exceeded the relevant speed limit by more than 45 kilometres an hour, he shall be disqualified for a period of not less than six months, unless special reasons are present. In the instant case, as it happened, the appellant exceeded the speed limit of 70 kilometres per hour by 46 kilometres, one kilometre more than the 45 specified in section 41 above. As it happened also, the speed limit in the Western Harbour Crossing Tunnel was increased from 70 kilometres per hour to 80 kilometres per hour on 1 November 2003, exactly one month after the date of commission of the present offence.

8. Quite clearly, the magistrate was of the view that the offence of speeding committed by the appellant was an offence during the course of which she used a motor vehicle.

The offences specified in section 69(1) which would enable a magistrate to disqualify a defendant are :

(a) any offence under the Road Traffic Ordinance in connection with the driving of a motor vehicle;

(b) an offence of failing to give information to the Police about the identity of a driver of a vehicle;

(c) stealing a motor vehicle;

(d) taking a conveyance without authority;

(e) going equipped for stealing committed with reference to the theft or taking of motor vehicles;

(f) contraventions of regulations relating to the obligations of taxi drivers and prescribed taxi fares;

(g) any offence of using on a road a motor vehicle in contravention of any regulation as to brakes, tyres or steering gear; and

(h) any offence during the course of which, or in order to escape apprehension for which, he uses a motor vehicle.

9. In my judgment, where the offence is one under the Road Traffic Ordinance and in connection with the driving of a motor vehicle that is clearly covered by subsection (a). In addition, the offence of failing to provide information to the police on the identity of a driver of a vehicle under section 63(6) of Cap.374 is also included. The other offences which are covered relate to the obligation of taxi drivers and the control of taxi fares and also offences under regulations made under the Road Traffic Ordinance relating to brakes, tyres or steering gear of vehicles. In my judgment, the offence envisaged by the legislature under subsection (h) must be a criminal offence not covered by subsections (a) to (g) inclusive and must be an offence during the course of the commission of which a motor vehicle is used or a motor vehicle is used to enable the defendant to escape apprehension for the former. An example of such an offence is, for instance, where a vehicle is used to cause injury to another person.

10. In my view, the subsection does not cover a normal driving offence which, as in this case, was created not under the Road Traffic Ordinance but under another ordinance. In my judgment, therefore, the magistrate had no jurisdiction to impose the order for disqualification and, therefore, the appeal against that order must succeed and the disqualification order is hereby quashed. The appellant is awarded her costs of the appeal, to be taxed, if not agreed, and to be paid by the Company.