HKSAR v. PARDEEP SINGH

HCMA 481/2024

[2025] HKCFI 4946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 481 OF 2024

(ON APPEAL FROM FLCC 2097 OF 2023)

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J U D G M E N T

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1.  The Appellant pleaded guilty before the Magistrate for four charges, namely “Driving while disqualified” (Charge 1); “Using a vehicle without third party insurance” (Charge 2); “Failing to comply with road markings” (Charge 3); and a joint charge with the 2^nd defendant of “Doing an act tending and intended to pervert the course of public justice” (Charge 4).

2.  The Appellant was sentenced to various terms of suspended sentence, as well as disqualified from driving for 12 months. 

3.  With respect to the Charge 2 (“Disqualification Order”), the Appellant now appeals solely against the Disqualification Order on the ground that the sentence for Charge 2 was too severe.  However, the Respondent has been informed by the police that the Appellant has died, enquiries have been made with the Immigration Department.

4.  The Respondent now also submits the relevant death certificate to the Court, which certified that the Appellant had been certified dead on the 21 January 2025. 

The Facts of The Case 

5.  A light goods vehicle was parked in a bus stop amounting to a traffic offence.  Police saw it and approached the driver of the light goods vehicle.  The police checked the identity of the driver and realized that the Appellant had been disqualified from driving.  The Appellant denied as a driver.  Later on, the 2^nd defendant arrived at the scene and claimed that he was the driver.

6.  Police enquiries made with the examination of a CCTV has revealed the truth that it was the Appellant who actually drove the vehicle and stopped it in the bus stop.  Therefore, the Appellant and the 2^nd defendant have been prosecuted for the above-mentioned various offences.

7.  The Appellant is a 48-year-old Indian.  He migrated to Hong Kong in 1993.  He is married.  He has a wife, a son, and a daughter.  The Appellant is a security guard earning $15,000 per month, and he is the sole breadwinner of the family. 

The Reasons for Sentence

8.  The Magistrate referred to Charge 2, which is contrary to section 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272, Laws of Hong Kong.  The section 4(2)(a) prescribes that:

“If a person acts in contravention of this section, he shall be liable to a fine of level 3 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.”

9.  The Magistrate referred to the above sections and as a basis for making the Disqualification Order, and that the Appellant’s legal representative also had not advanced any special reason for not making such an order.  Therefore, the Magistrate saw no special reason to refrain from making the statutory disqualification order or to make an order for a period shorter than the statutory requirement. 

10.  Therefore, the Appellant was disqualified from driving for 12 months, which is the minimum required by the law. 

Respondent’s Reply

11.  The Respondent referred to HKSAR v Cheng Chee Tock Theodore [2015] 18 HKCFAR 292, the Court of Final Appeal held that the discretion whether to continue an appeal after an appellant’s death must be exercised on a principled basis.  Factors relevant to the exercise of the discretion may include:

(1)  Whether leave to appeal has been or will be granted;

(2)  The existence of an applicant;

(3)  The continuation of the appeal on a proper adversarial basis;

(4)  The interest of the applicant in the continuation of the appeal.

12.  Particularly in the factor (4), the court will consider the reason why the party applying wishes the appeal to be continued.  The financial interest of an appellant’s estate in the pending appeal may be relevant where the executors or personal representatives of the appellant apply for the appeal to be continued.  If financial interest is relied upon, the nature of that interest and its amount will be relevant to the weight to be attached to this factor.  Similarly, the applicant’s interest in restoring the reputation of the appellant may be relevant but this will be a factor to which varying weight will attach: the gravity offence of which be applied.

13.  The Respondent also referred to HKSAR v Tang Tik Hung [2018] 5 HKLRD 383, the Court of Appeal held that when a defendant/applicant had applied for leave to appeal in respect of their conviction or sentence and subsequently died before hearing of the application, the Court of Appeal still had discretion to consider application should proceed or automatically terminate and abate after considering all relevant factors.   

14.  Also in the judgment of the香港特別行政區 訴 林敬言 [2021] HKCFI 1576, this one also confirmed that the principle above governing the exercise of discretion and the relevant factors to be considered when an appellant dies after lodging an appeal is applicable to a magistracy appeal. 

15.  The Respondent says that the disqualification in this case is mandatory.  The burden of proving special reason exists not to make such an order or to order a shorter period of disqualification lies on the defendant to the civil standard case, Pugsley v Hunter [1973] 1 WLR 578.

16.  As the Appellant has been disqualified from driving, he was clearly not covered by the subject vehicle’s third party insurance policy at the time of the offence.  The Appellant could hardly argue that he was operating under any misunderstanding in light of the facts. 

17.  The Magistrate also explained the effect of the Disqualification Order to the Appellant at the hearing and demanded the Appellant surrender his driving licence, of which the Appellant raised no objection at all. 

18.  Given the subject appeal is against a mandatory sentence that is prescribed by law, the Magistrate had correctly ordered in the absence of special reasons, the present appeal does not concern any general public importance, nor is there any reason in the interest of justice, public interest or otherwise, to proceed with the hearing of the appeal.

19.  The Respondent is also not aware of any existence of any party who either wishes to substitute the Appellant or has applied for the appeal to be continued on his behalf.  In the same sense, the Respondent asked the Court to exercise its discretion to order that the present appeal be automatically terminated and abated due to the Appellant’s death. 

Consideration

20.  In HKSAR v Hui Lai Ki [2024] HKCFA 7, it was stated that the Magistracy Appeal is conducted by way of re-hearing on the evidence before the trial court.  On such re-hearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justify appellate intervention to reverse the decision of the magistrate.  For an appeal against sentence, the court also had to look into the facts, the mitigation submitted and the relevant authorities for re-hearing purpose. 

21.  Given the facts of the case that the Appellant was driving while disqualified and without third party insurance, he stopped at the bus stop and there was no special reason submitted.  The Magistrate therefore disqualified the Appellant for driving for 12 months, which warrants the statutory minimum for re-hearing purpose, the sentence was proper with sound basis and obviously not manifestly excessive.  The appeal against such disqualification order was bound to fail. 

22.  However, as the Appellant has already died, as in Cheng Chee Tock Theodore stated above, now that the Appellant is not legally represented and it was apparent that the public interest was not affected.   I therefore also exercise my discretion that the present appeal be terminated and abated due to the Appellant’s death.