THE QUEEN v. KO HEI WING BEN

BETWEEN

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JUDGMENT

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Preliminary

1. This was an appeal against conviction and sentence on a charge of speeding, but at the hearing the appeal against conviction was abandoned. Submissions were addressed entirely to the question of sentence, not to the fine of $1,200.00 which was imposed and which has been paid, but to a disqualification for 15 months and in particular that the disqualification was made to apply to all classes of motor vehicles.

2. Mr. McKenzie-Ross for the appellant properly said he did not seek to treat this as anything else than a serious matter where the appellant has had three previous convictions, but nevertheless submits that the circumstances of this particular appellant's background are such that the hardship imposed by in effect not allowing him to earn the living that he has up to now will impose undue hardship not only on himself, but on his family. There was no sworn evidence given in the court as to the background of the appellant, but it was said on his behalf that he earned $2,000.00 and lived with his parents. He has three younger brothers and sisters who are at school and he contributes some $1,500.00 a month to the family. Before me, Mr. McKenzie-Ross amplified that. One of his parents, his father, is a hawker; his mother is a housewife and does not earn any income and that therefore as the only other breadwinner in the family it is very important to them that he will be able to continue to drive light trucks in order to earn a living. As in all cases of appeal against sentence where a discretion has been exercised by the lower court it is necessary for the appellant to show that that discretion has not been properly exercised. A Court of Appeal should not interfere with the exercise of any discretion unless there is strong reason for doing so.

3. I find that there is considerable help in the case cited by Mr. McKenzie-Ross The Queen v. Ma Kin-man Crim. App. 180/1985 where Macdougall J. went into these matters in some depths and indeed although on sentence each case must stand on its own facts the circumstances of that case are very similar to what we have here. There were the same two previous traffic defences of speeding and under the mandatory provision of Section 41 of the Road Traffic Ordinance there had to be a minimum disqualification of 12 months. What was argued was that there was in fact no discretion to limit that disqualification to any particular class of vehicle. Macdougall J. held that the court did have discretion and I am sure he is right. What he did, however, go on to say was in that particular case the discretion had been properly exercised not to limit the disqualification to private cars.

4. The appellant here is a light truck driver and I have no doubt that it is not by any means easy for him to obtain another job at a comparable income. Disqualification has been held in previous cases to be imposed as a protection for the public and where a defendant has a long list of traffic convictions, but they do not involve offences which are of danger to the public, disqualification would be very much an exception. As has also been said, of course, however, it is undoubtedly a severe penalty and usually more severe than the fine which is imposed and that must be firmly borne in mind. Looking at the appellant's record, however, one can only say that in the fairly short period of time that he has been driving, it is a very bad record, even if one ignores the minor offences such as driving with the number plate not properly lit, driving without necessary lights or even driving with defective tyres although I think that is not an offence which one can say involves no danger to the public. Also of course those offences may possibly be something the owner of the vehicle is more blameworthy for, nevertheless although there are only the three previous speeding convictions cited to the magistrate he did have two other convictions for careless driving. He has several convictions for disobeying traffic signs. He has only been driving since August 1982 and has run up a record, which to my way of thinking; indicates quite clearly that there is a danger to the public in this man driving vehicles and in particular take into account, as the magistrate quite clearly did, has already disqualified for a period of six months. One would have thought that would have acted as a clear deterrent. It did not do so.

5. I also take into account that on this particular occasion his speed was substantially over the limit that he was driving a private vehicle and it wasn't a question that he had a late delivery to make or some other pressure on him by his employer to exceed the speed limit. He doesn't seem to have any reason. It has been suggested that the vehicle had just been repaired and may have been testing it out. I think driving a vehicle at that speed if there was any suggestion at all that the brakes were possibly defective certainly does not afford litigation.

6. This will result in hardship not only on the appellant, but on his family. It is almost inevitable in Hong Kong where families are very close, very close economic units, a disqualification on one member of any family inevitably results in hardship on all. It may be more so in .this case than in the average, but I do not think, taking into account all the factors including the current record, the particular circumstances of this case and that I cannot say the magistrate has not exercised the discretion in a proper manner. I am satisfied that the magistrate's discretion was properly exercised in this case and the appeal must be dismissed.