THE QUEEN v. LAM SIU FUNG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 110 OF 1995

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JUDGMENT

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1. The appellant pleaded guilty before a magistrate to:

2. A. Driving whilst disqualified;

3. B. Driving without third party insurance; and

4. C. Failing to comply with traffic sign.

We are not concerned with C. In respect of A, he was sentenced to 6 months' imprisonment and disqualified from holding or obtaining a driving licence in respect of all types of motor vehicles for 3 years and as to B, he was disqualified from holding or obtaining a driving licence in respect of all types of motor vehicles for 2 years. The disqualification imposed on B was ordered to run consecutively to the disqualification imposed on A. The appellant only appeals against the disqualifications on the ground that the magistrate was wrong to order the disqualifications to be consecutive and that he had no power to make such an order.

5. A number of decisions were cited in argument. In R. v. Lau Hon Tung [1990] M.A. No. 21, Ryan J. held that where the offences of driving without third party insurance and driving while disqualified arose out of the same transaction, the disqualification should run concurrently. In R. v. Tung Koon Ming [1985] M.A. No. 879, O'Conner J., after referring to R. v. Bain [1973] R.T.R. 213 and R. v. Messe [1973] R.T.R. 400, held that unless there was statutory power, disqualification was to run concurrently. Statutory power existed in s. 44(3) of the Road Traffic Ordinance (Cap. 374) and that was restricted to driving while disqualified or obtaining a licence while disqualified. In R. v. Tang Sik Hung [1994] M.A. No. 653, Leong J. was of the view that there was no power to order a disqualification under s. 4 to run consecutively. It would be contrary to the intention of the legislature if a disqualification under s. 44(2) can be ordered to run consecutively to one under s. 4. In his opinion, s. 44(3) only applies where there has been a prior disqualification so that a disqualification under s. 44(2) would be in addition to the disqualification on that prior occasion. Otherwise, all the disqualifications should be concurrent and s. 44(3) does not apply where there are two or more offences arising out of the same transaction for which disqualification has been ordered.

6. I respectfully agree. Accordingly, the appeal is allowed and the disqualification imposed on charge B is to run concurrently with the disqualification imposed on charge A.