HKSAR v. NG SUEN WAI

HCMA 375/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 375 OF 2003

(ON APPEAL FROM ESCC 905 OF 2003)

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J U D G M E N T

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1. This Appellant pleaded guilty in the Magistracy to one charge of 'Driving whilst Disqualified' contrary to section 12(2)(b) of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375; a charge of 'Using a Motor Vehicle without Third Party Insurance' contrary to section 4(1) and 2(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272; and 'Careless Driving' contrary to section 38(1) of the Road Traffic Ordinance, Cap. 374.

2. On the 1st Charge, he was sentenced to 2 months' imprisonment and fined $2,000; on the 2nd Charge, 2 months' imprisonment and a fine of $2,000. In addition, he was disqualified from driving all classes of vehicles for a period of 12 months. He was fined $1,000 on the 3rd Charge. The sentences of imprisonment on the 1st and 2nd Charges were ordered to run concurrently. Today he appeals against the sentences of imprisonment only.

3. Although the Appellant was charged under section 8 of the Road Traffic Ordinance, Cap. 375, when he should have been charged under section 12(2)(b) of the Road Traffic (Driving Offence Points) Ordinance, Cap. 375, no issue was taken on that error by the Appellant.

4. The Appellant had been disqualified under the points system, from driving all classes of vehicles for 3 months, with effect from 11 November 2002. The disqualification order meant that the Appellant was not covered by third party insurance if driving. The basis of the points offences were Fixed Penalties for failing to comply with road markings and 3 instances of 'driving in excess of speed limit'

Facts

5. The facts were admitted. On 20 January 2003, when the disqualification order was still extant, the Appellant drove his private car, which was involved in an accident with two other vehicles. After the accident, he left his car and the scene. Some twenty minutes later, he surrendered to the police admitting that he was the driver and that he was disqualified from driving. The police checked and discovered the disqualification order.

6. The Appellant told the Magistrate that he had been at home when he received a phone call to go and collect the rental on a commercial building of which he was landlord; the rent having been outstanding for some 5 months. The Appellant hastened to do so and said he overlooked the serious legal consequences of driving whilst disqualified. It was submitted, in mitigation, that he was very anxious to collect the rent because his business was in a poor state and after being given an ultimatum by the tenant, he chose to drive to collect the rent.

7. The Magistrate categorized the driving as a flagrant breach of the disqualification order for which a custodial sentence was appropriate. He considered, rightly, that collection of outstanding rent could not be an emergency and he noted too that the Appellant had given no thought to using public transport.

8. As the Appellant had a clear record, the Magistrate adjourned sentencing for background Probation and Community Service Order suitability reports. The reports did not recommend either Probation or a Community Service Order. In passing sentence, the Magistrate took into account the plea of guilty, the Appellant's clear record, and that the previous traffic record comprised fixed penalties. He noted that the disqualification was under the points system and not for a serious road traffic offence. He noted too the content of the reports, the Appellant's family circumstances and the impact on the Appellant's business an immediate custodial sentence would have.

9. Having considered mitigation, the Magistrate took a starting point of 3 months' imprisonment as being appropriate for each of Charges 1 and 2 and reduced each to 2 months' imprisonment, giving one-third discount for the pleas of guilty. He found no exceptional circumstances which warranted suspension of the sentences.

10. An appeal against sentence was filed and bail pending appeal was granted.

11. The basis of this appeal was that the Magistrate imposed sentences which were manifestly excessive or wrong in principle, and, in particular, the factors the Magistrate took into account ought not to have led to an immediate custodial sentence. Further, as the Magistrate had remanded the Appellant for 14 days before imposing sentence, that in itself could be regarded as a sufficient deprivation of liberty. Counsel submitted that the Magistrate approached sentencing as though there was a tariff requiring immediate imprisonment, an approach which was wrong in principle. The Magistrate was said to have erred in categorising the act of the Appellant as "flagrant".

12. There was complaint by the Appellant's counsel about the conclusions of the Probation Officer in the Probation and Community Service Order suitability reports. Counsel challenged the reports for what were considered inaccurate conclusions by the officer and expressed concern that they had been relied on by the Magistrate.

13. The passages complained of were:

"Taking into consideration Defendant's weak law-abiding concept, poor consequential thinking and improper problem- solving skills, Community Service Order which is work-oriented, is considered NOT a constructive disposal to help him to reform."

14. In the Probation report, the conclusion was that the Appellant

"should be very good at balancing between the gain and loss during the process of decision-making. However he still risked transgressing law for his convenient sake. It reflects that he was very poor in law-abiding concept".

There was also reference to the Appellant and his wife having given different versions of what the Appellant had done after the accident. This was relied on by the officer as showing the Appellant still wanted to cover up the truth and shed his responsibility.

15. I agree that those comments, couched in what might be termed "sociology speak" or "Probation patois" were not particularly helpful in the context of dealing with this Appellant, but the Probation Officer was entitled to form his views and comment accordingly. There was no indication that the Magistrate relied on, or accepted, those conclusions. In any event the Magistrate was entitled to ignore the recommendations of the Probation Officer if he so chose. All the Magistrate did was note the contents of the reports as one of the factors he considered when sentencing.

16. The second point made by the Appellant was that the Magistrate relied on the fact that this was a "flagrant breach". Counsel proceeded to argue that the term 'flagrant', is treated almost as a term of art in cases such as this.

17. The Shorter Oxford English Dictionary gives the meaning of 'flagrant', in respect of an offence or an offender, as "glaring, notorious, scandalous, blatant". From my reading of the cases it appears "flagrant" is used to mean "blatant" in the sense of obvious and deliberate, by Magistrates and Judges who have used the term. "Flagrant" accurately describes the conduct of this particular offender.

18. In his submissions, Mr Bruce SC for the Appellant reviewed the various authorities in respect of these cases, noting there was no tariff for driving whilst disqualified but that it was, and had long been, viewed as a very serious offence in Hong Kong.

19. Mr Bruce argued that in cases such as that of the Appellant, who was a person of good background and family responsibilities, options other than imprisonment should be considered seriously. He criticised the Magistrate for placing too much emphasis on the disrespect towards the court order that the behaviour of driving whilst disqualified illustrated. Counsel pointed out that the Appellant was a man of good character who was in difficult financial straits because his business was hit hard by the recession. He also submitted that a distinction should be made between somebody who had been disqualified because of accumulated driving points and somebody disqualified after a conviction for a serious driving offence. All those matters were before the Magistrate.

20. Such a distinction does appear to have been accepted in some cases by Judges and Magistrates, including the Magistrate in the instant case. It is difficult to see that such a distinction can be justified except in assessing the proper length of sentence. Once a person is disqualified, whether under the driving points system, or as the result of a traffic conviction, it is an offence to drive a vehicle. The same dangers are offered to other road users by a disqualified driver, whichever basis for disqualification applies.

21. The unjustified distinction appears to have arisen because of what is regarded as the moral turpitude which leads to disqualification in one case and the comparatively "innocent" behaviour which leads to the disqualification under the points system.

22. That there should be no distinction between the two types of disqualification is supported by each offence, whether under the Road Traffic Ordinance or the Road Traffic (Driving Offence Points) Ordinance, having the same penalties. The maximum penalty under each provision is a fine of $10,000 and imprisonment for 12 months. The legislature does not make any distinction between the two offences, considering them of equal gravity.

23. The different circumstances leading to disqualification cannot make one type of order more serious than the other. Once an order is made and the driver disqualified, the purpose of disqualification is the same; 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.

24. The moral high ground cannot be adopted by someone who, like the Appellant, achieved disqualification by accumulation of points. The Magistrate correctly categorized this as a flagrant breach. The Appellant is of mature years, he knew the import of his disqualification order and the likely consequences of any breach. He chose deliberately to flout the order for a trivial reason and in circumstances in which he could have avoided the breach.

25. In HKSAR v. Liu Yim-hung HCMA 267/98, Muttrie DJ said:

"I think it is important to remember that the reason why a sentence of imprisonment is imposed in a normal case for driving whilst disqualified is that the offence itself is a disobedience of a court order. In the normal case, if a person disobeys a court order, he has to go to prison for it."

26. The courts, rightly, treat breaches of disqualification orders very seriously. A major component of punishment for such breach must be deterrence, both specific to the offending driver and, importantly, as a means to discourage other drivers from following similiar driving practices. The accident in which the Appellant was involved and which revealed his offence, demonstrates why such orders must be taken seriously. The negating of third party cover, means the presence of disqualified drivers on the road is a serious danger to others.

27. In this case, the Magistrate considered the full range of sentencing options and obtained Probation and Community Service Order reports. Despite Mr Bruce's criticism of those reports, it was for the Magistrate to accept any part, or none, of the material, or the recommendations. Similarly, it was for him to consider whether or not he should suspend any sentence of imprisonment, once he decided to impose it.

28. In R v. Chan Hon-piu [1986] HKC 422, Barnes J stated:

"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 the diminished culpability."

29. The Magistrate considered those words but found the breach was flagrant and there was no factor such as immaturity which diminished the Appellant's culpability.

30. I have considered the arguments advanced by counsel in the light of the Magistrate's reasons for sentence and taken into account the matters raised at the hearing and on this appeal. The sentence cannot be said to be either wrong in principle, or manifestly excessive.

31. Given the serious consequences of breaches of disqualification orders, it is clear that Magistrates should consider sentences of imprisonment for all breaches of disqualification, unless very exceptional circumstances exist. No exceptional circumstances existed here.

32. The appeal against sentence is dismissed.