HKSAR v. LIU WAI HO

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 854 OF 1998

(On Appeal from WSC 9407 of 1998)

____________

____________

______________

J U D G M E N T

______________

1. I allowed the appeal of the Appellant on the 11th December 1998 and I now give my reasons.

2. The Appellant was charged with and pleaded guilty to three traffic offences, namely driving while disqualified; driving a motor vehicle without third party insurance and driving in a prohibited zone. He only appealed against his sentence in respect of the 7 days' imprisonment under charge 1. The particulars of charge 1 are as follows:

"Liu Wai Ho you are charged that on the 25th day of July 1998 (Des Voeux Road Central injunction with Ice House Street Central) in Hong Kong. You did drive a vehicle namely a private car displaying registration mark GG761 while you were disqualified from holding or obtaining a driving license under the Road Traffic (Driving-offence Points) Ordinance."

3. In his oral reasons given in court on 20th August 1998, the learned magistrate relied on what was described by him as the 'dreadful driving record'. The dreadful driving record was that of three previous disqualifications from driving ordered under Section 12(2)(b) of the Road Traffic (Driving-offence Points) Ordinance. In addition to the 'dreadful driving record', the learned magistrate had also considered the mitigation that was advanced on behalf of the Appellant. The Appellant said that at the relevant time he was a stable rider employed by the Jockey Club. On the morning of the day, he committed the offences charged, he had received a phone call and had been requested to take a friend who lived at the Jockey Club staff quarters at Shatin Racecourse to the ferry pier in Central because his friend's girlfriend was said to be attempting suicide. The Appellant was also at the staff quarters when this call was received. He could not get hold of a taxi because the location was said to be quite remote and so he offered his services. That in short was the reason given by the Appellant in driving as he did whilst disqualified.

4. In his written reasons, the learned magistracy referred to the case of R. v. Chan Hon Kiu MA913 of 1986 at page 7 of the judgment:

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

5. Having examined the explanation proffered by the Appellant, the learned magistrate then came to the conclusion that this was a case of flagrant breach.

6. Leading counsel Mr. Ching Y. Wong, S.C. together with his able junior Mr. Herbert Au Yeung had advanced a number of arguments. In the end, I was persuaded by two main arguments, (1) the dreadful driving record referred to by the learned magistrate was that of three previous disqualifications order under Section 12(2)(b) of the Road Traffic (Driving-offence Points) Ordinance, there had never been any previous convictions for driving whilst disqualified, and (2) the present case did not fall within flagrant breach.

7. As to the first argument, leading counsel had referred me to a number of decisions. R. v. Woo Kou CA422 of 1986; R. v. Ng Fung King Cinderella 1993 2 HKCLR 219; R. v. Queen 1981 3 Criminal Appeal Report(s) 245.

8. These decisions confirmed a well-established sentencing principle that previous convictions merely disentitled a defendant to any sympathy from the court they are not a ground for increasing the normal sentence for that offence.

9. As to the second argument, that the act of driving constituted a frequent breach of the disqualification order. The learned magistrate did not regard the explanation as amounting to an emergency which would have justified his act of driving. I am not convinced that it amounted to a flagrant breach. What is and what is not a flagrant breach must depend on the facts of each case, taking into account various factors, such as the reasons for driving and the manner of driving etc. It would be unrealistic to lay down any hard and fast rule.

10. I, therefore, allow the appeal to the extent that the 7-days' imprisonment is to be suspended for a period of six months. Leading counsel for the Appellant had applied for costs of this appeal. Having heard arguments from both the Respondent and the Appellant, I decline to make any order as to costs.