THE QUEEN v. MA KIN-MAN

IN THE SUPRE1dE COURT OF HONG KONG

(APPELLATE JURISDICTION)

MAGISTRACY CRIMINAL APPEAL NO. 180 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty before a Magistrate on 22nd January 1985 to the offence of speeding contrary to section 41(1)(a) of the Road Traffic Ordinance Cap. 374 and admitted that he had been convicted of speeding on 18th January 1983 and 2nd August 1984. Both of the earlier offences had been committed under the Road Traffic Ordinance Cap. 220 which has been repealed and replaced by Cap. 374. The offence in respect of which the appellant appeared before the Magistrate had been committed while the appellant was driving a private car.

2. In mitigation the appellant stated that he was suffering from an asthmatic condition which rendered him unable to do any type of work other than driving and that if he lost his job because of the disqualification his wife and children would suffer. The appellant was not required to give evidence concerning those matters nor did he specify the class of vehicle that he was required to drive in the course of his employment.

3. The Magistrate imposed a fine of $600 and ordered that the appellant be disqualified from driving all types of vehicle for a period of twelve months and that, pursuant to section 70(1), he be further disqualified until he has, after the date of the order, passed the test of competence to drive prescribed under the Ordinance.

4. The appellant now appeals against the order that he be disqualified from driving all types of vehicle. Mr. Mullick who appears for the appellant contends that the Magistrate should have exercised his discretion pursuant to section 69(2)(b) of the Ordinance and have limited the disqualification to one of driving private cars.

5. It is convenient at this juncture to set forth the provisions of sections 41 and 69:

6. I pause here to observe that by virtue of the words "shall be disqualified" in section 41(2) a disqualification under that section is imposed automatically. This provision may be contrasted with section 70(1) which provides not that the defendant shall be disqualified until he has, after the date of the order, passed the test, but that "the court shall, ........., order him to be disqualified until he has, after the date of the order, passed the test." (my emphasis). Clearly therefore a court order, albeit on a of a mandatory nature, must be made before a disqualification under section 70(1) takes effect, whereas no such order is necessary in the case of a disqualification imposed by operation of law under section 41(2).

7. I mention the matter because there appears to be some division of opinion among Magistrates as to the true position. What is important is that where a disqualification comes into effect because of the operation of law the Magistrate should always draw the fact of the disqualification to the attention of the defendant so that he will not be in ignorance of the consequences of his conviction.

8. Crown counsel contends that the Magistrate had no power to limit the disqualification to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the appellant committed the offence and that therefore the appeal must be dismissed. He argues that section 69(2)(b) does not apply to a disqualification imposed under section 41(2) but is restricted to disqualification imposed in respect of offences specified in subsection (1) of section 69 excluding the offence referred to in paragraph (f) of the subsection and for which special provision has been made in section 69(2)(a).

9. While frankly conceding that this is a further matter concerning which there appears to be a divergence of opinion among agistrates, Mr. Mullick submits that section 69(2)(b) applies to a disqualification imposed under section 41(2).

10. I can find no justification for interpreting section 69(2)(b) so as to restrict its operation to the offences specified in paragraphs (a) to (e) and (g) and (h) of subsection (1). The words of subsection 2(b) are plain and unambiguous. Had the legislature intended to restrict the scope of operation of the subsection no doubt the draftsman would have inserted the words "specified in subsection (1)" after the words "imposed in respect of any other offence."

11. Accordingly I am satisfied that a court does have the power to limit a disqualification imposed under section 41(2) to the driving of a motor vehicle of the same class or description as the motor vehicle driven by the offender at the time at which the offence was committed. "The offence", of course, is the final offence which brings about the disqualification.

12. That being so, the question arises whether the Magistrate was wrong in refusing to limit the appellant's disqualification. Mr. Mullick contends that the words "if the court thinks fit" in section 69(2)(b) are in effect the same as those in the corresponding provision in the old Ordinance (Proviso (a) to section 23 of Cap. 220), namely, "if the court or magistrate thinks fit", and that therefore the principles on which a Magistrate should proceed in determining whether a disqualification should be limited have not been changed by the new legislation.

13. The discretion conferred on a court to limit a disqualification must necessarily be exercised judicially. I refer to what was said by Blair-Kerr J. in Cheung Chi-shing v. R. [1964] H.K.L.R. 1 that disqualification is imposed primarily for the protection of the public. Equally there can be no doubt, as appears frog the same judgment, that a disqualification also operates as a very severe penalty, especially in the case of a professional driver.

14. However, as O'Connor J. pointed out in Li Chi-wai v. The Queen [1981] H.K.L.R. 29, the effect of a disqualification will not usually weigh very heavily where the individual has demonstrated that he is a danger to other persons using the road. Moreover, dangerous professional drivers are a greater public menace than non professionals because they are likely to be on the roads for longer periods thus exposing the public to risk over a greater period of time.

15. I respectfully agree with O'Connor J. that professional drivers who drive in a manner which puts the public at risk are not entitled to preferential treatment that would provide them with opportunities to do so, for the danger that arises in permitting such persons to drive is not dependent on the class of vehicle they choose to drive.

16. Having said that however, it is plain that the existence of a discretion in the court indicates a clear recognition by the legislature that there must be circumstances in which justice would be done by limiting the disqualification.

17. In my view, the degree to which an offender is a danger to other persons using the roads can to some extent be assessed by an examination of his previous traffic record. The more numerous or more serious are his previous offences the greater the danger he is likely to be to other road users. Likewise, if the speeding offence which brought about his disqualification is a relatively serious one it suggests that in view of his previous speeding record the offender is deliberately flouting the law and that the danger he presents to the public is such that it would not be proper to exercise the discretion in his favour.

18. If, on the other hand, the speed involved in the operative offence had been marginally in excess of the permitted limit or the offence had been committed in circumstances in which it might reasonably be said that the offender's driving occasioned minimal danger to other road users, or where, for example, the offender had at the time of the commission of the offence been driving a seriously ill person to hospital, the court may be justified in taken the view that the offender is not likely in the future to present a danger to other road users.

19. By far the most usual plea advanced by a person disqualified as a consequence of his third or subsequent speeding conviction is that he is a professional lorry or bus driver and that therefore an unrestricted disqualification would cause undue hardship to him or to his family or to both. I pause here to emphasise that this plea can only arise where the speeding offence which brought about the disqualification was committed while the offender was driving a vehicle of a class or description other than that which he drives to make his living. If he had committed the offence while driving a vehicle of the same class or description as that used by him in earning his living the court would have no discretion under section 69 (2)(b) to restrict the disqualification to driving vehicles of another class or description or other classes or descriptions.

20. All too often the plea is glibly made by the offender from the well of the court or is advanced by his solicitor or counsel without calling the offender to give evidence as to the relevant facts. The court should normally require the offender to give such evidence. What an unsworn offender may have been prepared to tell the court or his solicitor in private may well be very different from that which he is prepared to tell the court from the witness box.

21. The onus is on the offender to satisfy the court that the disqualification should be limited. Indeed it would be unusual for the prosecution to have knowledge either of an offender's personal or family situation, or of the circumstances of his employment and whether he might reasonably be expected to work in another capacity for his employer or to find alternative employment and such the like.

22. After the court has all the matters relied upon by the offender fairly before it and has assessed the degree of danger presented by him to other road users, it must decide whether it would be justified in putting them at risk by allowing the offender to drive on the roads even though his driving may be confined to a particular class or description of motor vehicle. The discretion should be exercised sparingly. The greater the risk presented by an offender the less likely it will be that a court will exercise its discretion in his favour. Where an offender fails to satisfy a court that it would be justified in limiting the disqualification but considers, for example, that because he is a professional driver a disqualification will operate more severely on him than it would on others, it would be proper for the court to reduce the amount of the fine that it would otherwise impose.

23. It is with these principles in mind that I heard evidence from the appellant in support of his contention that the Magistrate should have limited the disqualification to the driving of private cars.

24. The appellant testified that he had contracted asthma some three months before the imposition of the disqualification but that it had not been until a week after his appearance before the Magistrate that he had sought medical attention. He produced a letter from a doctor to the effect that he was suffering freer asthma and was not fit to perform heavy manual labour. No indication was given as to the likely duration of the appellant's condition.

25. Since his disqualification the appellant had visited several construction sites and factories in search of work. He claimed that the salaries offered by the factory proprietors were inadequate and that in any event he was unfitted for work on a construction site. He is still out of work and his former employer is unable to transfer him to a position which does not involve him in performing heavy manual labour.

26. The appellant has accumulated a bad traffic record in the period of a little more than three years during which he has held a driving licence. He has been convicted of eight offences against the Road Traffic Ordinance and has had six fixed penalty citations in respect of which he has made payment. Six of these offences involved disobeying traffic lights or signs and four related to speeding.

27. I am aware of the view expressed by Leonard J. in Sin Yiu-kong v. The Queen [1979] HKLR 294 that fixed penalty citations in respect of which payment has been, made should not be taken into account for the purpose of sentencing. Although I am in respectful agreement with Leonard J. that the payment of a fixed penalty citation does not rank as a conviction I am unable to agree that a court is bound to ignore such a citation in assessing the appropriate penalty to impose in relation to subsequent offences. Indeed Baber J. in Ng Hin-leung v. The Queen Criminal Appeal No. 682 of 1979 expressed doubts as to the correctness of Leonard.J.'s decision. However, on the facts of the case before him Baber J. was not called upon to decide the matter.

28. Mr. Mullick contends that I should ignore prior fixed penalty citations in respect of which payment was made by the appellant because it may be that the appellant had not in fact committed the alleged offences but had merely paid the fixed penalties in order to avoid inconvenience. It seems to me that the same argument could be advanced in respect of offences for which an offender had been prosecuted in that he might have pleaded guilty in order to avoid the inconvenience and expense involved in a contested hearing. That the fixed penalty legislation might have been introduced in order to save valuable court time and reduce inconvenience to the Crown and offenders alike does not appeal to me as being a sufficient reason to ignore fixed penalty citations for which payment has been made when determining how an offender should be dealt with on conviction for a subsequent offence. In my view a court may take such citations into account in the same way and for the same purposes as it is entitled to take into account previous convictions.

29. The appellant did not impress me as being a credible witness. Some of his answers in cross-examination were absurd and others were manifest lies. Indeed some of his evidence tended to contradict his basic assertion that he was unable to perform manual labour. He has failed to satisfy me that the disqualification should be limited to the driving of private vehicles. The appeal is therefore dismissed.