THE COMMISSIONER FOR TRANSPORT v. KAT, NIGEL LOUIS IAN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1084 of 1991

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BETWEEN

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J U D G M E N T

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1. This is an appeal by way of case stated under section 105 of the Magistrates Ordinance Cap. 227.

2. The magistrate has set out the questions of law which arose before him as follows:-

"At the Magistrates Court in the said Colony at Western on the 23rd day of October 1991 I was asked to make an amendment to a summons arising from a complaint preferred by the Commissioner for Transport (hereinafter called the respondent) against Nigel Louis Ian Kat (hereinafter called the appellant) under section 8(2) of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375 (hereinafter called the Ordinance), charging for that he, the appellant, being the holder of Hong Kong driving licence No. KO50283 having incurred in Hong Kong under the Ordinance 16 driving offence points in respect of offences committed within the period 3rd November 1989 to 2nd December 1990, was liable to be disqualified from holding or obtaining a driving licence under section 8 of the Ordinance. I ruled against the appellant whose application to amend it was and the summons was returned to the Special Magistrate at western for disposal. On 8th November 1991 the appellant was duly convicted of the offence, and it was adjudged that he be disqualified for a period of 3 months.

2.    And whereas the appellant, being dissatisfied with my ruling and alleging himself to be aggrieved by such determination as being erroneous in point of law has, pursuant to section 105 of the Magistrates Ordinance, duly applied to me in writing to state and sign a case setting forth the facts and the grounds of such determination as aforesaid, in order that he may appeal therefrom to a Judge of the High Court.

3.    Now therefore 1, the said Magistrate, in compliance with he said application and the provisions of the Magistrates Ordinance, do hereby state and sign the following case.

4.    Upon the hearing of the application to amend it was agreed on the part of the appellant and respondent as matters of fact that:

(1)    The offences committed, convictions and/or fixed penalties and dates shown on driving-offence points certificate reference CDO12388/91 were correctly shown as at 8th February 1991. The first offence committed was, on 3rd November 1989.

(2)    On 26th February 1991, a fixed-penalty ticket QY450219 (2) for offence code 5A was issued to the appellant. This was paid on.27th February 1991. 5 driving-offence points were thereby incurred by the appellant on 27th February 1991.

(3)    On 11th March 1991, the respondent issued a driving-offence points certificate. It does not show the 5 points incurred by the appellant on 27th February 1991.

(4)    On 16th April 1991, a fixed-penalty ticket MY400247 (5) for offence code 05 was issued to the appellant. It was paid on 17th April 1991. 3 driving-offence points were thereby incurred by the appellant on 17th April 1991.

(5)    on 28th June 1991, the appellant obtained the summons specifying the 4 offences shown on the certificate. It does not specify the offences committed on the 26th February 1991 or 16th April 1991.

5.    It was contended by the appellant that the complaint and summons were defective, in that they failed to comply with ss.8 (1) and 8(2), and were inconsistent with ss.6 (1) and 8(3) of the Ordinance insofar as they failed to include two offences committed by the appellant falling within 2 years of 3rd November 1989. An application was therefore made by the appellant for me to amend the summons and the complaint pursuant to s.27 of the Magistrates Ordinance, Cap. 227.

6.    I, however, being of the opinion that the complaint and summons were not defective, refused the application. My reasons for doing so were as follows:-

The intention of the Ordinance is to penalize the motorist who regularly offends over and above the fines he incurs for each individual offence by taking him off the road for a mandatory period. When the motorist achieves a target of 15 points the respondent is required to apply for a summons to issue. Inevitably this takes time as administrative procedures are completed and statutory obligations are complied with. It defeats the intention of the Ordinance and common sense to suggest that during this period the offending motorist can offend as many times as: he likes with impunity so long as theoffences are all within a space of 2 years.

Such interpretation is not in my view obstructed by the words of the Ordinance which I found do not compel the inclusion of these later infringements in the complaint and summons which the respondent must pursue once 15 driving offence points are reached or first exceeded; such later driving points are preserved for subsequent use if within the 2 years from the date they are incurred another 15 points are reached or exceeded.

7.    The questions of law arising on the above statement for the opinion of this Court therefore are:-

(1)    Whether driving-offence points incurred by a driver in respect of offences committed after those which within the same 2 years have incurred driving-offence points up to or in excess of a total of 15 are to be included in the complaint of the respondent on application for a summons under section 8(2) of the Ordinance, and/or in the summons issuing upon that complaint;

(2)    Whether such driving-offence points are not to be taken into account in a disqualification under section 8(3) of the Ordinance

(3)    Whether the entries in the register of points kept by the respondent which relate to such offences are, upon such disqualification, to be cancelled and the points incurred in respect of those offences are to have no effect, whether so included or otherwise, by virtue of s.6(1) of the Ordinance."

3. It is convenient for me to set out s.8 and s.6 of the Ordinance. Section 8 provides:-

"8.    (1)     Subject to sections 4A, 5 and 6, where 15 or more.points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding or obtaining a driving licence in accordance with this section.

    (2)    Where the circumstances mentioned in subsection (1) arise in relation to any person, the Commissioner shall apply to a magistrate by way of complaint for the issue of a summons and a summons may be issued specifying the date of the commission of, and the number of points incurred in respect of, each offence mentioned in subsection (1).

    (3)    Upon the hearing of the summons and upon being satisfied that the circumstances set out in subsection (1) apply to the person on whom the summons was served, the magistrate shall order him to be disqualified from holding or obtaining a driving licence -

    (a)    for a period of 3 months from the date of the order if no previous disqualification has been imposed on him under this Ordinance; and

    (b)    for a period of 6 months from the date of the order if any previous disqualification has been imposed on him under this Ordinance,

unless the magistrate is satisfied, having regard to all the circumstances not excluded by subsection (4), that there are grounds to order a shorter period of disqualification or not to order him to be disqualified.

    (4)    No account shall be taken under subsection (3) of -

    (a)    any circumstances that are alleged to make the offence not a serious one;

    (b)    hardship, other than exceptional hardship; or

    (c)    any circumstances which, within 2 years immediately preceding the issue of the summons under subsection (2), having been taken into account under subsection (3) in ordering a shorter period of disqualification or not ordering a disqualification.

    (5)    (deleted)

    (6)    Any disqualification imposed under subsection (3) shall apply to the driving of all classes of motor vehicles shown on the driving licence.

    (7)    Where a person is disqualified under this section, his driving licence, international driving permit, domestic driving permit and domestic driving licence, if any, whether obtained before or during the period of disqualification, shall be of no effect so long as the disqualification continues in force."

4. The Ordinance provides for the cancellation of points in s.6 as follows:-

"6.    (1)     Where a person is disqualified from holding or obtaining a driving licence under section 8, the Commissioner shall cancel those entries in respect of that person in the register of points which relate to the offences mentioned in subsection (1) of that section and the points incurred in respect of those offences shall have no effect.

    (2)    Where a person, on being convicted of a scheduled offence, is disqualified under the Road Traffic Ordinance from holding or obtaining a driving licence

    (a)    no points shall be incurred in respect of that offence or any other offence of which he is convicted on the same occasion; and

    (b)     the Commissioner shall cancel any entries in respect of that person in the register of points which relate to offences committed before the commission of the offence in respect of which that person is disqualified and the points incurred in respect of those offences shall have no effect."

5. It is perhaps helpful. for me to include also at this stage s.7 which deals with a notice of points, this provides:-

"7.    (1)     Subject to sections 4A, 5 and 6, where 8 or more, but less than 15, points have been incurred by a person, the Commissioner shall serve on that person a notice informing him -

(a)    of the number of points incurred by him; and

(b)    that if 15 or more points are incurred by him in respect of the offences which are committed within a period of 2 years of each other, he will be disqualified from holding or obtaining a driving licence.

(2)    The operation of section 8 shall not be affected by a failure to comply with subsection (1)."

6. The way in which points are to be calculated is set out in s. 8A as follows:-

    "8A. Calculation of points

    In calculating the number of points incurred for the purposes of sections 7 and 8, where 2 or more of the offences in respect of which points have been incurred are constituted by the same, or substantially the same, act, -

    (a)    only that offence attracting the highes number of points; or

    (b)    where those offences each attract the same number of points, only one of those offences,

shall be taken into account."

7. Section 9 provides for a certificate which may be produced in evidence giving particulars of the convictions of a person or the scheduled offences for which a person became liable to the fixed-penalties. The certificate is also to give dates upon which the person was convicted or became liable to the fixed-penalties; the dates of the commission of the offences in respect of which the person was convicted or became liable to the fixed-penalties; and the number of points incurred in respect of each of the offences.

8. Mr Kat, who appears in person, argues that under s.8(3) the court must be satisfied that the circumstances set out in subsection (1) are there. In other words, there must be 15 or more points. He may be so satisfied by the certificate under s.9. However, he argues that the certificate must comply with s.8(1). The summons in this case did not specify the offences set out An paragraph 4(2) and (4) of the "Case Stated" which were committed within the two year period on the 26th February 1991 and the 16th April 1991 respectively, and in respect of which points were incurred by the appellant on the 27th February and the 17th April respectively.

9. Mr Kat argues that for this reason the summons was defective and the magistrate was bound to amend it under s.27 of the Magistrates Ordinance. The liability to disqualification under s.8(1) was a continuous liability and did not stop once 15 points had been incurred. This is because the words of the Ordinance are "where 15 or more points have been incurred". Under subsection (3) of s.8 the relevant date for being satisfied that the circumstances set out in subsection (1) applied to the person on whom the summons was served is the date upon which the hearing of the summons takes place. That must include all the offences incurred up to that time. In this respect Mr Kat relies on the short report of R v. Brentwood Justices, ex parts Richardon in the Times of January 1st 1992.

10. Mr Kat supports his argument by drawing my attention to the fact that there are two periods of disqualification in subsections (3)(a) and (b), neither of which depend upon the number of points over 15 which may have been incurred. He stresses the words in s.8(1) "in respect of offences which were committed within a period of 2 years of each other". The construction of this subsection is crucial, he says.

11. It is Mr Kat's contention that s.6(1) only refers to offences mentioned in subsection (1) of s.8. The whole purpose of this subsection is to enable an offender to start off with a clean sheet once he has served his disqualification period.

12. If it had been the intention of the legislature that entries of points in respect of offences committed after 15 points had been achieved, but before the summons was issued, were not to be cancelled under s.6(1), it would have been not difficult to draft. The wording of the Ordinance is however clear and it does not preserve these points.

13. In support of his arguments, he maintains that his interpretation does not provide a "carte blanche" to drivers because under the Road Traffic Ordinance disqualification is available or mandatory upon a single conviction for the more serious scheduled offences. Higher fines are available in all cases upon prosecution. The choice between proceeding by way of fixed penalty or by prosecution lay with the police on each occasion. He argues that the result is not an absurd result and even if an odd result is produced by applying the natural meaning of the words, the correct course is for the legislature to amend it and not for the court to do so. He has cited to me a number of authorities on the subject of the construction of statutes.

14. Mr Coghlan, for the respondent, takes issue with Mr Kat. He agrees with the remarks of the magistrate in paragraph 6 that there are bound to be administrative delays in the issue of a summons. The application to the magistrate to amend the summons is misconceived. Section 8 means that once 15 or more points have been incurred in respect of an offence within a two year period, then the Commissioner is obliged to apply. Section 8(2) only requires the issue of a summons in respect of each offence falling within subsection (1). The 15 or more points incurred in subsection (1) must be the number of points incurred at the time when the Commissioner is obliged to apply for a summons. The ordinance does not compel the inclusion of later infringements, argues Mr Coghlan. He supports the magistrate's findings.

15. In my judgment having regard to s.19 of the Interpretation and General Clauses Ordinance, the magistrate and Mr Coghlan are clearly right in their interpretation of the Ordinance. The obligation to apply for a summons occurs in s.8(2) when the circumstances mentioned in subsection (1) arise; not beforeand not after. They arise once 15 points or more have been. incurred within a two year period. The summons must specify the date of the commission of, and the number of points incurred, in respect of each offence mentioned in subsection (1). That must mean the number of points incurred "where the circumstances mentioned in subsection (1) arise" and no more. In other words, at the time when 15 or more points have been incurred.

16. The words "or more" are not meant to imply continuous liability but cater for the situation where the number of points incurred may at the stage of liability exceed 15 points. The reference to a two year period does not mean that once 15 points have been incurred a motorist can continue to incur numerous points and yet have his slate wiped clean at the conclusion..of the two year period. That two year period merely refers to the duration of time in which it is possible to incur points which give rise to the liability. That stage may be reached before the expiry of the two year period. The emphasis throughout the Ordinance is on the time at which the liability occurs, not at which the two year period expires. That is why a notice is necessary under s.7. Such a notice must be issued at any time during the two year period when 8 or more points have been incurred. The cancellation of points under s.6 relates only to offences mentioned in subsection (1) of s.8, i.e. points calculated under s.8A which add up to 15 or more points at the stage where liability occurs.

17. I derived no assistance from the cited report from the Times where the Court was concerned with different legislation.

18. The answers to the questions are as follows:-

(1) No.

(2) Such points are not to be taken into account in a disqualification under s.8(3) of the Ordinance.

(3) No.

19. For these reasons the appeal is dismissed.