HKSAR v. WO ON SONYA

HCMA1282/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1282 OF 2004

(ON APPEAL FROM NKCC 8776 OF 2004)

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J U D G M E N T

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1. This is an appeal against sentence.

2. On 9 November 2004, the appellant pleaded guilty to one charge of driving whilst disqualified, one charge of using a vehicle without third party insurance and one charge of speeding.  She was sentenced to three months’ imprisonment suspended two years, $5,000 fine and disqualified from driving for two years consecutive to the existing disqualification period in respect of charge 1.  She now appeals against the period of disqualification in respect of that charge.

3. The facts of the case are straightforward.  On 6 October 2004, the appellant was spotted speeding by police officers.  She was stopped and it was found that she had been disqualified for driving for 12 months by a court order dated 7 June 2004 in respect of a charge similar to charge 2 of the present case.

4. There was extensive mitigation forwarded by counsel on her behalf to the learned magistrate, which in essence was this.  The appellant was the managing director and owner of a design and production company which, at the material time, had a contract to install outdoor festival lighting.  She was told earlier on the day in question that the installation was defective and public safety was at risk.  She was required to attend an urgent meeting.  She could not get any taxi for over 20 minutes and decided to drive instead.

5. The Grounds of Appeal dated 12 January 2005 alleged that the magistrate erred in finding that there existed no special reasons in the appellant’s case that the vehicle was used in an emergency, and that the disqualification period was excessive in the circumstances of the present case.

6. Skeleton submission of the appellant dated 28 February 2005 further alleges that the magistrate “erred in relying on an issue not raised at the trial thus depriving the Appellant from an opportunity to answer to the same”, and “the learned Magistrate erred in attaching weight to the issue as he had”.  I note that there has been no amendment to the Grounds of Appeal whatsoever embodying such grounds but by a Notice of Motion filed on 28 February 2005, an application is made to this court to adduce further evidence pursuant to section 118(1)(b) of the Magistrates Ordinance, which I allowed.  The respondent did not oppose this application.  And, according to that section, a judge on hearing magistracy appeal may receive such additional evidence if he or she thinks it necessary.  Further, according to section 119(d) of the Magistrates Ordinance, a judge on appeal “may make any such order in the manner as he or she thinks fit”.

7. To put it briefly, it is alleged that the magistrate in his Statement of Findings relied heavily on the fact of the appellant’s choice to drive in defiance of a court order just after the day that an appeal was heard and dismissed.  That fact was never raised at the hearing before the magistrate, counsel for the appellant was deprived of an opportunity to address the magistrate on this issue.  In the premises, the magistrate should not have relied on this fact at all.  I am of the view that it is in the interest of justice to afford counsel an opportunity to address the court on this issue and that was the reason why I allowed additional evidence to be adduced in the appeal today by way of an affirmation of the appellant dated 26 February 2005.

8. Whilst the appellant does not dispute the fact that she drove on the day after her appeal against the previous disqualification order was dismissed, it is now submitted to me that the appellant was indeed unaware of her appeal being dismissed when she drove on 6 October.

9. It is submitted that hearing of the appeal on 5 October had been postponed from September 2004.  On 4 October 2004, the appellant wrote again to have the hearing of the appeal adjourned due to business commitments.  With no reply from the court and she “assumed that the appeal case would be adjourned to a later date” and thus did not turn up on the schedule date.  Unknown to her, the appeal was heard in her absence and was dismissed.  According to paragraph 12 of the skeleton submission : “The Appellant did not know that the case had been heard in her absence and dismissed on 5 October 2004 until the same was disclosed in the learned Magistrate’s Reasons for Sentence.”  Counsel for the appellant went on to say that when the appellant drove on 6 October, she was not aware the appeal was dismissed so it could not be said that the driving on 6 October was a flagrant or serious disregard of the court order.

10. Whilst the allegation that the appellant only learnt of the appeal being dismissed after this fact was disclosed in the magistrate’s Statement of Findings could bolster the appellant’s allegation that when she drove on 6 October she was unaware that her appeal had been dismissed, one can immediately detect a flaw in this argument.  That argument would necessarily mean that during the appearance before the learned magistrate on 9 November which was about a month after the scheduled date of that appeal, nothing has been done to find out what had happened to that appeal.  This apparent apathy on the part of both the appellant and counsel leaves me with a sense of unease.  Would the result of that appeal not have a bearing on the mitigation, if not the plea, in the present case?  Was this simply a case of incompetence or dereliction of duties on the part of counsel, or a case of crucial material damaging to the defence being deliberately withheld from the magistrate?  I do not wish to make any unnecessary conjecture.  Then what do I make of the allegation that the appellant was unaware of her appeal being dismissed when she drove on 6 October 2004?  I am of the view that there is no difference whether she knew or not.  Taking her allegation at its highest, it was still abundantly clear to her when she drove on 6 October that the previous disqualification was still in force.  No matter whether she was aware at the time of her driving that her appeal was dealt with the previous day, the fact remains that she was only disqualified some three months before she took the wheel again and in no way could she be said to have forgotten about the existence of that disqualification order.

11. According to section 44(2) of the Road Traffic Ordinance, on first conviction of driving whilst disqualified, a person shall be disqualified for a period of not less than 12 months.

12. The learned magistrate clearly took a serious view of the first charge.  In his oral reasons he said this :

“Undoubtedly, you know, and would have been told, that this is a very serious matter, driving in contravention of a court order not to drive, and compounded by the fact that you are driving uninsured.  So were there to have been an accident, and you or others killed or seriously injured, no one is covered.  That is why it is serious, and that is why the authorities suggest custodial sentence.”

This particular point was reiterated on page 3 of the Statement of Findings.  That, undoubtedly, is the gravamen of the offence of driving whilst disqualified.

13. Time and again, the higher court have expressed concern that reasons given at the hearing were at variance with the Statement of Findings.  Whilst seeming placing of weight on the appellant’s choice to drive just after the day that an appeal against the existing disqualification order was dismissed when that matter was not raised at the hearing was unfortunate, having heard counsel on this issue, I am of the view that this piece of mitigation does not afford any ground for allowing the appeal.

14. No doubt the impressive references of the appellant, her high education, her position of responsibility are matters which go to her favour, these could equally go against her.  She should all the more so well appreciate the likely consequence of any breach of the court’s order.  This was the second time she had driven without third party insurance in total disregard of risks posed to other road users.

15. Counsel tried to mitigate again on behalf of the appellant on materials which had already been submitted for consideration of the learned magistrate.  I must stress that this appeal is not a rehearing.  The learned magistrate bore in mind the mitigation but concluded, in my view, quite rightly that even taking all the mitigation of the appellant on its highest, the appellant could not be said to have acted both reasonably and proportionately to avoid a threat of death or serious injury.  No doubt she could have avoided the breach.  I cannot agree more with the respondent’s submission that the appellant, in allegedly avoiding a threat of death or serious injury, turned a blind eye herself to risk exposed to other road users by her choice of driving whilst disqualified.  The appellant was indeed lucky that it was a narrow escape from the clang of the prison gates.

16. I refer myself to the case of R. v. Tang Sik Hung [1995] 1 HKC 723, where Leong J (as he then was), dealt with disqualification orders.  At page 728C, he said this :

“A distinction should be drawn between cases of driving whilst disqualified and such like cases where there was no evidence of bad driving and cases where the actual manner of driving was the essence of the offence. … The object of disqualification is to keep the offender off the road for a period of time because of his manner of driving.  Thus, where there is bad driving, the period should be longer.  Whereas in the present case, the driving manner was never questioned, there is no ground for imposing the maximum disqualification under section 4.”

It is noted that the driving complained of in that case was that the appellant who had been disqualified from driving for 12 months for a charge of permitting another person to use a vehicle without insurance, was found by police officers sitting in the driver’s seat of a motor car causing obstruction on the road.  In the present case, the appellant was found to be speeding.  In the case of Tang, Leong J was of the view that an overall period of two years’ disqualification was appropriate, even accepting that the driving manner of the appellant was never doubted.

17. I echo the view that the purpose of disqualification is to remove from the roads for a fixed period someone who, because of poor driving behaviour, is not regarded as a suitable person to drive during that time for obvious risks that he or she may pose to other road users.  The overall period of two years’ disqualification here in the present case, even taking into account the consecutively nature to the existing period of disqualification, is not a day too long.

18. Whist the difference between the magistrate’s oral reasons and written Statement of Findings does give rise to some concern, I conclude that the period of disqualification is neither manifestly excessive nor wrong in principle.  There is no basis for me to interfere with the sentence imposed by the magistrate in respect of charge 1 in particular the disqualification order which is entirely fair and proper in the circumstances of the present case.  This appeal is dismissed.