HKSAR v. YIM HON CHUNG

HCMA 52/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 52 OF 2001

(ON APPEAL FROM TWCC 3462/2000)

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J U D G M E N T

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1. The Appellant was convicted in the Magistracy of two counts, one of Driving while Disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374, and one of Using a Motor Vehicle without Third Party Insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272.

2. The Appellant initially appealed against conviction and sentence, but as he made a non-equivocal plea of guilty in the Magistracy, the appeal against conviction was abandoned at this hearing. He pursued his appeal against sentence.

3. On the first charge, the Magistrate imprisoned the Appellant for 6 months. A sentence of 6 months imprisonment was also passed in respect of the second charge; the sentences were to be concurrent. On the first charge, the Defendant was disqualified from holding or obtaining a driving licence for all classes of motor vehicles, for three years consecutive to a term that he was currently serving, which would take his disqualification up until 7 November 2007; on the second charge he was disqualified from holding or obtaining a driving licence for all classes of motor vehicles for a period of 3 years. Both periods of disqualification were to be concurrent.

4. The Magistrate also ordered that the Appellant had to take a driving test before obtaining a full driving licence giving as reasons, that he had a bad driving record in general, and more importantly, he would have been disqualified for a continuous period from 8 November 1999 until 7 November 2007, a period of 8 years.

5. It was conceded by the Respondent that the Magistrate was wrong in principle to order the Appellant to take a driving test in the circumstances of this case. Accordingly, that order is quashed. It was not a case where such an order should have been made, on the basis of R. v. Donnelly (1965) 60 Cr. App. R. 250 and R. v. Tsui Kwan-fai MA 1094/91.

6. As to the sentences of imprisonment of 6 months it was argued on behalf of the Appellant that they were manifestly excessive, although counsel conceded that an immediate custodial sentence was not wrong in principle.

7. It is acknowledged that the Appellant has a poor driving record. He was first disqualified in 1996 for 3 months under the driving offence points system. His conviction record shows that he was sentenced for an offence of soliciting passengers on 8 November 1999 and disqualified for a period of 12 months.

8. On 14 February 2000 he was convicted of driving whilst disqualified and using a motor vehicle on road without third party insurance. On the first of those charges he was sentenced to 7 days imprisonment and disqualified from holding a driving licence for a period of 12 months; he was fined $3,000.00 on the second charge and disqualified from holding a driving licence for a period of 20 months. Both periods of disqualification were to run concurrently and the disqualification on the first charge was ordered to run consecutively to the term of disqualification imposed in November 1999.

9. On 22 August 2000, the Appellant was again convicted of driving whilst disqualified; a Community Service Order of 100 hours was imposed. He was disqualified from holding or obtaining a driving licence for a period of 36 months, consecutive to his previous period of disqualification. For the second offence of using a motor vehicle on the road without third party insurance he was fined $3,000.00 and disqualified from holding a driving licence for a period of 12 months. That disqualification was to run concurrently with the one on the first charge, but consecutively to the previous periods of disqualification.

10. The present offences were committed about a month later, on 27 September 2000. The Magistrate rightly regarded this as a flagrant breach of a court-ordered disqualification and considered that 6 months was the minimum appropriate sentence, after giving him full credit for his plea of guilty.

11. There is nothing that inclines me to believe that this sentence was excessive, or wrong in principle. These were very serious offences. The Appellant knew full well what he was doing when he was driving whilst disqualified. He was a menace to other road users because he was driving without third party insurance. He was a persistent re-offender, who had no intention of abiding by the disqualification period. This appeal is without merit.

12. The appeal against sentence is dismissed. I confirm that the order that he takes a further driving test is quashed.