HKSAR v. KIM, JUN-HOE

HCMA 449/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 449 OF 2004

(ON APPEAL FROM KCCC 4645/2004)

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J U D G M E N T

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1. The Appellant was convicted on his own pleas of 3 offences in the Magistrate's court and these 3 offences were motoring offences. The first charge was driving whilst disqualified; the second was using a vehicle without third party insurance and; the third was driving his private car when a rear seat passenger was not securely fastened with a seat belt.

2. He was duly sentenced on the first charge to 14 days' imprisonment and disqualified from driving for 12 months consecutive to the existing 18 months disqualification he was serving.

3. The Appellant today appeals against his sentence on the first charge only in relation to the 14 days' imprisonment.

4. The learned Magistrate in assessing to the sentence to be imposed had rejected the mitigation advanced on the Appellant's behalf that he forgot that he had been disqualified because the learned Magistrate noted that the disqualification with for a period of 18 months which was imposed on the 4 September 2003 and on the date of the offence which was 7 March 2004, he could not possibly had forgotten that, then.

5. The learned Magistrate however accepted that the Appellant was driving his car to a garage for repair. The learned Magistrate also took into account the record of the Appellant and that he was a breadwinner of the family and had a responsible job. And therefore instead of imposing a sentence of 21 days he reduced it to 14 days.

6. The learned Magistrate also considered whether there were exceptional circumstances that may cause him to suspend the sentence. And the learned Magistrate in the last paragraph of his Reasons for Sentence had said that he did not consider the fact that the Appellant had overseas interests and had family responsibilities would justify suspending the sentence.

7. The counsel for the Appellant, Mr Poon, has appealed against the sentence of 14 days on the ground that the learned Magistrate had failed to consider or make a finding that the breach of the disqualification order had been flagrantly committed.

8. Mr Poon has urged this court to take into account the meaning of flagrant as being "openly and obviously wicked; glaring; or scandalous". I do not agree. "Flagrant breach" in motoring offences, in my opinion, refers to an obvious and deliberate or blatant breach rather than a scandalous or wicked or glaring breach. I adopt the word of Madam Justice Beeson in the case of HKSAR v Ng Suen-wai¹, Madam Justice Beeson had this to say at page 5 of her judgment:

"The Shorter Oxford English Dictionary gives the meaning of 'flagrant', in respect of an offence or an offender, as "glaring, notorious, scandalous, blatant". From my reading of the cases it appears "flagrant" is used to mean "blatant" in the sense of obvious and deliberate, by magistrates and judges who have used the term. "Flagrant" accurately describes the conduct of this particular offender."

9. The other ground of appeal advanced, by Mr Poon, on behalf of the Appellant is that there was a language barrier when the defendant was speaking to the police officer when he said he had forgotten.

10. It was pointed out to Mr Poon that, even in mitigation, counsel representing the Appellant had said that the Defendant had forgotten that he was disqualified so I see no merit in this ground. And lastly Mr Poon urges upon this court to consider that the driving manner of the Appellant was not the reason he was stopped. The reason he was stopped was only because the passenger had forgotten to put his seat belt on and so there was no allegation that he was driving badly.

11. Mr Poon referred to a case where Mr Recorder Lok had said that one of the factor to consider would be the driving manner of the particular defendant. I can only say that driving manner is one of the aspect that a sentencing in judge or magistrate had to consider when assessing the sentence. It is not a deciding factor when deciding whether to suspend a sentence or not.

12. What are the exceptional circumstances in this case that would cause the learned Magistrate to suspend a sentence. Mr Poon submits that the defendant was only concerned about the problem in the car's ignition, and he was only driving to the garage. These are not exceptional circumstances and I must say that having read the file, I do not see there are any exceptional circumstances to warrant the learned Magistrate suspending the sentence.

13. Then I have to consider whether the sentence of 14 days is manifestly excessive or wrong in principle. Without doubt, the Appellant does not have a bad driving record but this had been taken into account by the learned Magistrate, 14 days imprisonment is a sentence that is, a serious one but can I say that it was manifestly excessive? I cannot say that it is. So I see no ground therefore in interferring with the Magistrate's sentence and so the appeal against sentence is dismissed.

1 HCMA 375 of 2003