THE QUEEN v. LEUNG SEE PIU

BETWEEN:-

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JUDGMENT

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1. This is an appeal against sentence on a charge of speeding brought under Section 41(1) of the Road Traffic Ordinance. The whole question is not the fine imposed but the disqualification because the appellant had 3 previous convictions, two under Section 15 of the repealed Road Traffic Ordinance and one under the existing section 41. Subsection (2) of that section reads as follows:-

        "(2) A person who is convicted of a third or subsequent offence under this section or under section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of not less than 12 months:

 

        Provided that when a period of not less than 3 years has elapsed since his last previous conviction for such an offence, the court may deal with the offence as a first offence."

 

2. Mr. Kan who appears for the appellant argued that as this is a penal provision it should be given an interpretation most favourable to the appellant. That, of course, I accept. He argues that the words in the section "convicted of a third or subsequent offence under this Section or under Section 15 of the repealed Ordinance" mean that the three offences must all be either under Section 41, the new section, or under Section 15 but not both. The magistrate did not adopt that view and held that the requirement was that the three offences should be under one or the other taken together. Mr. To for the Crown. says that is a correct interpretation.

3. It is remarkable that whereas under Section 36, which relates to causing death by reckless driving, and Section 37, which refers to reckless driving, a person shall be disqualified, in one case for 2 years and the other for 18 months for a second-conviction but the magistrate in both cases is given a discretion where he considers that for special reasons there should not be such disqualification. Under Section 41, which relates to speeding and in this case breaking the speed by not a great margin, there is no discretion and on a third conviction a disqualification for 12 months follows automatically. The sections relating to the two serious offences give the magistrate a discretion, the one which relates to speeding does not. However, that is what the legislation says. Section 36 reads:-

"A person convicted on offence under this section shall be disqualified for a period of not less than 2 years in the case of his second or subsequent conviction or a conviction subsequent to a conviction under Section 11(3) of the repealed ordinance.".

I think there is no doubt what the legislature intended that the previous conviction was either under the new ordinance or under the repealed ordinance. Section 37 contains a similar provision.

"Disqualified for a period not less than. 18 months in the case of a second or subsequent conviction or of a conviction subsequent to a conviction under Section 11(1) of the repealed ordinance."

I am satisfied in fact that the magistrate was correct in that when Section 41(2) refers to third or subsequent offence under the Section or under Section 15, that means you must take the Section and the repealed ordinance together, and that if the previous convictions are either under Section 41 or the repealed Section 15 they count for the purposes of 41(2). I do not think there is any doubt therefore, and this is not a question of construing a penal statute se as to give the interpretation most advantageous to the defendant. That being so, the magistrate had no discretion and had to impose a mandatory disqualification of 12 months and also that the appellant has to be re-tested. I think this is a section which does impose a very substantial penalty for speeding as opposed to dangerous driving but for the reasons given the appeal against sentence must be dismissed.