THE QUEEN v. CHAN HON PIU

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 913 of 1986

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty in the Magistrates Court to two charges, one of driving whilst disqualified contrary to section 44(1)(b) of the Road Traffic Ordinance and the other of driving without third party insurance contrary to section 4(1) of the Motor Vehicle Ingurance (Third Party Risks) Ordinance.

2. In respect of each charge, the magistrate ordered that the appellant be imprisoned for one month and ordered that the sentences run concurrently. In addition he made an order, in respect of each conviction, that the appellant be disqualified from holding or obtaining a licence to drive motor vehicles for 18 months.

3. At the hearing before the learned magistrate the appellant's counsel, in his plea of mitigation, conceded that the offence of disobeying a disqualification order warranted a custodial sentence, but he sought to persuade the magistrate that, in the particular circumstances of this case, that sentence should be suspended.

4. In mitigation it was claimed that the appellant drove his brother's car at a time when he, the appellant, was subjected to a significant degree of emotional stress arising out of a relative's domestic dispute. During the night he received a telephone message that his sister was threatening to commit suicide. He tried to get a taxi to go from the New Territories to Ngau Tau Kok, but his fare was refused by a taxi driver who said that if he took the appellant to Ngau Tau Kok, he would be unable to get a fare back to the New Territories. The appellant's brother was unavailable to drive the car.  Those were the mitigating circumstances which were accepted by the learned magistrate. (I was told that the appellant's wife, who accompanied him on the journey, was not the holder of a driving licence.) The learned magistrate after hearing the plea in mitigation said, inter alia:-

"Before I suspend a sentence of imprisonment I consider certain well-defined criteria, they are these:-

Are you:

Here the answer must be no. No contempt of Court which is what this offence amounts to, can reasonably be described as only of moderate gravity, it is a serious offence and for it you will go to prison for one month on each charge, concurrently."

In his Statement of Findings he said:-

"There have been cases where a sentence of imprisonment for the offence has been suspended ......... [but] I have been unable to extract the principles by which the decision to suspend was reached.

It is hoped that this opportunity to provide criteria for magistrates' consideration before suspending a sentence will not be missed."

 

5. The learned magistrate and Counsel at the hearing of the appeal have drawn my attention to the following four cases.

6. In Siu Wing-shing⁽¹⁾ the facts were that the appellant, whilst riding a motor cycle, knocked down and killed a pedestrian crossing a road from a centre island. He fled the scene but was arrested the following day when he was seeking medical treatment at a public hospital. About six weeks earlier he had been disqualified from driving a motor cycle for a period of four months on being convicted of dangerous driving. For breach of the disqualification order he was sentenced to detention in a Detention Centre.

7. Delivering judgment on an appeal against sentence, Roberts, C.J., concluded that the proper sentence was imprisonment rather than detention in a Detention Centre or the imposition of a fine. Then, after noting that the appellant's conduct constituted a "deliberate defiance" of the disqualification order, he went on to say:-

"However, in view of the appellant's age, of his clear record apart from motoring offences, of his good family background and of his history of steady employment, I believe that it would be right to suspend the sentence of imprisonment."

8. In YIU Chung-fu⁽²⁾, the appellant was sentenced in the Magistrates Court to imprisonment for one month for driving whilst disqualified. His explanation for committing a breach of the dis-qualification order was that he had received a telephone call from his pregnant wife asking him to return home immediately as she was in pain. There being no other form of transport available at the time he drove a company car. On the hearing of the appeal against sentence, Penlington, J. observed:-

"This explanation for his driving whilst disqualified only emerged after the appellant found himself facing a sentence of imprisonment. I do not think that the magistrate accepted this evidence and neither do I."

9. He then referred to Siu Wing-shing⁽¹⁾ and noted that it was there decided that, where a sentence of imprisonment must be imposed in respect of a breach of a disqualification order, that sentence

"could nevertheless be suspended where the personal circumstances of the appellant justified such a course."

10. He took account of the fact that, although the appellant was over 'the age of 21, he was still a young man with a clear record apart from his "bad motoring record" and a wife then seven months pregnant. Those circumstances led him to conclude that it was a borderline case but nonetheless one where the sentence should be suspended.

11. In R. v. TSANG Wai-man ⁽³⁾, the appellant's explanation for driving whilst disqualified was that his wife then 5-6 months pregnant had driven him to his factory that day; on arrival she felt unwell so she left the car at the factory and returned home taking the car keys with her; late that night she telephoned him asking him to return home urgently as she was feeling unwell; the appellant responded by using a spare key that he kept in his office at the factory to drive the car home; but his mission of mercy was obstructed by a police road-block check of driving licences. The learned magistrate accepted that the explanation was factual but imposed an immediate custodial sentence.

12. On appeal, Baber, J. in delivering judgment said:

"The offence of driving while disqualified does not carry a mandatory prison sentence; apparently it once did so, in the absence of special reasons, but the law was changed. The Magistrate rightly took a serious view of the Appellant's conduct. The Appellant, as was conceded, could have gone home by taxi, though finding one at such an hour might have occasioned delay. It is difficult if not impossible to criticize the sentence imposed. Defiance of a court order of disqualification deserves to be dealt with severely, and by a short sentence of imprisonment in flagrant cases. Nevertheless and with considerable reluctance I have decided that as an exceptional act of mercy the prison sentences should be set aside and a fine of $5,000 be substituted on each charge."

13. In R. v. LARSEN SHAW ⁽⁴⁾, the appellant attracted the attention of a radar machine when she was driving in excess of the speed limit along Clearwater Bay during mid-morning. The police officer who then inspected her driving licence discovered that she was driving in breach of a disqualification order made some five months earlier for a period of 12 months. In mitigation she said that it was difficult to get a taxi from her residence in Fei Ngo Shan Road. The learned magistrate sentenced her to imprisonment for two months. She then instructed a solicitor who sought a review of the sentence on the "humanitarian" ground that there was no one to look after the appellant's three year old daughter if she were sent to prison. On appeal her counsel said that she drove because she needed baby food for her daughter, she was unable to get a taxi and her husband was overseas on a business trip. Deputy Judge Evans found that those circumstances justified suspension of the sentence.

14. There is therefore ample authority to justify a decision not to impose an immediate custodial sentence for a breach of a disqualification order if a magistrate finds that the offender has never suffered imprisonment before and the breach was not flagrantly committed or, if flagrantly committed, some factor, such as immaturity, for example, operated to diminish culpability.

15. In this case the Appellant has no convictions other than for traffic offences and the breach was not flagrantly committed. It would have been quite proper, therefore, for the learned magistrate to suspend the sentence.

16. As that is what he would have done had he concluded that the authorities justified the exercise of his discretion in favour of suspension, I, therefore, allow the appeal in order to vary his order by adding to it an order for suspension.

17. The sentence will be suspended for a period of two years from 12 September 1986.

(1)    Cr. App. No. 516/79

(2)    Cr. App. No. 883/80

(3)    Mag. APP. No. 139/86

(4)    Mag. App. No. 805/86