THE QUEEN v. ONG TIN-TSANG

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL NO. 541 OF 1991

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JUDGMENT

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1. The Appellant pleaded guilty in the magistrates court to 3 offences, one of Driving While Disqualified, another of giving false information to a police officer and the third of driving without third party insurance.

2. In respect of the driving while disqualified offence, he was sentenced to imprisement for 1 month and disqualified for 18 months. On each of the other two charges, he was fined $2,000 and a further disqualification period was added in respect of the third party insurance offence.

3. The offence of giving false information to a police officer arose from the excuse he gave for not being able to present his licence when he was intercepted by a police officer at the time he committed the other offences.

4. In mitigation before the learned magistrate, he said;

"A client called me to deliver goods urgently. I couldn't find anyone else so I had no alternative but to take the car. The goods in the car were mine and not the company's and I was afraid the company would dismiss me".Later after the orders were made, he pleaded

with the magistrate for leniency saying that he was the sole breadwinner of his family and that his wife was often unwell and could not work.

5. The magistrate granted him bail when the appellant announced that he wished to appeal against sentence so the result is that he has not yet been in custody for any more than a few hours since was passed.

6. In support of his appeal against sentence Mr. Wong has relied in the main on a plea based on mercy. Mr. Sham, for the Respondent, has contented himself with saying that this was a case of a defiance of a court order and that the sentence of imprisonment for one month was neither wrong in principle nor manifestly excessive. I agree with that.

7. The appellant came to be disqualified after a conviction for careless driving which brought his points to a total which required an order of disqualification and the order made was disqualification for three months. That order was made on the 27th March 1991 and it was on the 25th April 1991 that he was detected driving in defiance of the order.

8. The magistrate rightly having decided to impose a custodial sentence had nothing before him which called for him to exercise a discretion to order that sentence to be suspended. So there is really no reason to interefere with the sentence which the magistrate imposed, but two reports have been put before me which were not put before the learned magistrate. One is the Appellant's medical history. He has been treated according to the medical certificate tendered today since 1988 with monthly onsultations for a condition described in the certificate as "anxiety neurosis". According to the ertificate, he is still suffering from that condition and still requires 'monthly follow-ups'. 1 have no doubt that if that diagnosis is accurate the condition has been exacerbated during the period etween sentencing and today.

9. The other, and in my view a more substantial matter, is that, as a result of his Conviction and sentence on these offences he has been forced to resign his position. As a result he has lost his job with a wellknown and reputable business orgainisation. The resignation took effect on the 1st ugust 1991. Having been forced to resign because of this experience he may, cone back to drive after the expiration of the period of, with a much more responsible approach to the requirements of the traffic law than he has hitherto shown.

10. It is with the hope that will be I have succumbed to the eloquent pleas from mercy made on his behalf by Mr. Wong. In the circumstances and as a act of mercy I will suspend the sentence, I therefore allow the appeal to the extent of ordering that the sentence be suspended for a period of 18 months from today.