THE QUEEN v. TSOI YAU-FAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 1031 of 1985

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BETWEEN

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JUDGMENT

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1. The Appellant was convicted in the Magistrates Court on two charges: one of permitting a person to drive without a valid driving licence contrary to Section 42(1) of the Road Traffic Ordinance, and the other of permitting a vehicle to be used without third party risks insurance contrary to Section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance.

2. On the first charge he was fined $200, and on the second he was fined $300 and disqualified from holding or obtaining a driving licence for 12 months, and further ordered purusant to Section 70(1) of the Road Traffic Ordinance to undergo a further test of competency.

3. Briefly the facts of the case were that the Appellant was with his girl friend in a motor vehicle in a car park at Shek O on the night of 28th June, 1985. Two police officers on duty at the time saw the vehicle moving slowly in the car park with the headlights on. The vehicle had come to a stop before the police officers approached them. However when the officers did approach the girl was still in the driver's seat with the Appellant sitting beside her in the passenger's seat, but the motor was switched off although the headlights were still on.

4. The Appellant had pleaded not guilty to the charge and had claimed in the Magistrates Court that in fact the vehicle had not moved. This evidence was, however, rejected by the magistrate who accepted the evidence of the police officers that the vehicle had moved a short distance in the car park.

5. The Appellant originally appealed against both conviction and sentence but when the matter first came on before me last week he abandoned his appeals against conviction but continued with his appeal against sentence. His appeal against sentence was limited to appealing against the disqualification imposed in respect of the second charge. The matter of concern to the Appellant is that having been disqualified from holding a licence in respect of all classes of motor vehicles he can no longer be gainfully employed in his family's business where it is his function to drive a delivery goods van:

6. It does seem to me to be a harsh penalty for the Appellant to be deprived of a licence to drive all classes of motor vehicles because he allowed his girl friend, as an unlicensed driver, to drive a private car a few yards in a car park. On the evidence before the learned magistrate, there appears to have been no risk whatsoever in the course of that driving of anyone being injured or any property being damaged. The learned magistrate did, however, find that there were no special reasons dictating a need to avoid the mandatory disqualification provision which accompanies conviction for this type of offence.

7. The Appellant has not sought to argue that the magistrate was wrong in so finding. He seeks a limitation of the qualification. I adjourned the matter until today because at the time I thought that there was authority for the proposition that this mandatory disqualification can be limited to the class of vehicle used in the course of the commission of the offence. In this case the vehicle was a private motor car. It seemed to me that, if there were power to limit the disqualification to that class of vehicle, it should be done in the particular circumstances of this case.

8. I have now discovered that LEUNG Tak-kuen v. the Queen, (1972) HKLR 493, authorises limitation of the disqualification to the class of vehicle used during the commission of the offence. In that case the defendant had been convicted of an offence against the Motor Vehicle Insurance (Third Party Risks) Ordinance and the magistrate had imposed a disqualification in relation to all classes of vehicles. On appeal it was held that an order under this same section was not required to be all embracing, that is, that a magistrate was not required to disqualify from driving all classes of vehicles. It was said in that case that the usual order would be one limited to disqualification to the class of vehicle which the Defendant was using at the time of the commission of the offence.

9. The learned magistrate in his Statement of Findings makes no mention of having considered whether he ought to limit the disqualification in this case, and it may well be that he was of the opinion that he had no option but to impose a disqualification in relation to all classes of vehicles. The law is that he did have such an option and since, in the particular circumstances of this case I feel certain that had he thought he had such an option he would have exercised it, I think that I should do so now. Accordingly, I allow the Appellant's appeal to this extent, that the disqualification imposed by the learned magistrate will be set aside and in lieu thereof I order that he be disqualified from holding a licence in respect of private motor cars for a period of one year. The Appellant will not be required to take a further test of competency.