HKSAR v. TSE YIU BUN

HCMA175/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 175 OF 1999

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J U D G M E N T

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1. The appellant was convicted on 2nd February 1999 of driving while disqualified and driving without valid third party insurance cover. He was in part disqualified for a period of three years pursuant to s.44(1)(b) of the Road Traffic Ordinance, Cap.374. The appeal is against conviction in respect of both of the offences.

2. The appellant has a history of disqualification and clearly is no stranger to road traffic offences. On 11th February 1993, he was convicted of an offence contrary to s.12(2)(b) of Cap.375 and at the same time convicted of an offence under s.4(1) of Cap.272 for driving without valid third party insurance. In respect of the second charge, he was disqualified for a period of three years' imprisonment, concurrent to a term for which he was already disqualified, that ran from 11th February 1993 to 11th February 1996. On 21st July 1995, he was convicted of driving while disqualified, contrary to s.44 of the Road Traffic Ordinance. The penalty under that Ordinance under sub-section (2)(a) is disqualification for a period of not less than 12 months in a case of a first conviction and under sub-section (2)(b) for a period of not less three years in case of a second or subsequent conviction under that section.

3. The learned Magistrate in that case disqualified the appellant for a period of three years from holding or obtaining a driving licence and made that order in error. The appellant had no previous disqualification under s.44 of that Ordinance and therefore a disqualification under sub-section (2)(b) of s.44 was wholly improper and ultra vires the legislation. The longest period of disqualification that could have been imposed at that time was a period of 12 months disqualification under sub-section (2)(a). That being so, when the appellant was arrested in respect of this matter, and when he faced the magistrate, he was not subject to any period of disqualification that was not ultra vires under the legislation. Since he was not disqualified as a matter of law at that time, he could not have been convicted nor could he have been further disqualified.

4. The appeal must be allowed in respect of both offences and the sentences are set aside.