THE QUEEN v. CHING TAI WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 972 OF 1987

________________

________________

________________

JUDGMENT

________________

1. The appellant was jointly charged with another defendant (2nd defendant), on one count of disorderly conduct and each of them was further charged separately with one count of criminal damage. Both of them were acquitted of the first count but each was convicted of the charge of criminal damage and the appellant was sentenced to pay a fine of $500 and also ordered to pay the sum of $230 as compensation to the 2nd defendant. In addition, he was disqualified from driving all classes of vehicle for one month. The 2^nd defendant was similarly fined $500 and ordered to pay compensation to the China Motor Bus Co. Ltd. In the sum of $200. He was also disqualified from driving all classes of vehicle for a period or one month. The appellant is a driver of a bus of the China Motor Bus Co. Ltd. whilst the 2nd defendant is the driver of a public light bus. On the 19th of August this year, both of them were driving their respective vehicles along Shaukiwan Road in the same direction, when a minor collision occurred, which resulted in the nearside rear view mirror of the China motor bus being damaged. The public light bus stopped further along the road to discharge some passengers, and the appellant taking advantage of this, drove his vehicle across the path of the public light bus, alighted and went up to speak to the driver of the PLB demanding that he pay compensation for the damage that he done to the rear view mirror or the China motor bus. This was done in loud and abusive language and the 2nd defendant refused to accede to his demands and upon hearing the refusal, the appellant pushed the offside rear view mirror of the public light bus putting it out of alignment. He also grasped one of the two windscreen wipers of the PLB and forced them both deliberately down below their normal position causing damage in the sum of $230. Following this, the appellant returned to his bus and began to drive off. In the meantime, the 2nd defendant had himself alighted from the PLB ran alongside the moving China motor bus, slapped the nearside rear vision mirror of the bus causing the glass to drop on the ground which shattered upon impact. The cost of the damage to the China motor bus was estimated at $200. The appellant now appeals only against sentence, in particular, the order of disqualification imposed on him by the learned magistrate. In his statement of findings, the magistrate sought to support the disqualification order on the appellant and also on the 2nd defendant, relying upon S. 69(1)(h) of the Road Traffic Ordinance, Cap. 374. The section reads as follows:-

"69(1) Without prejudice to any other provision relating to the penalty, there may be or is required to be imposed for an offence. A court before which a person is convicted of any of the following offences may order him to be disqualified for such period as court thinks fit.

                   xxx                xxx                   xxx

(h) any offence during the course of which, or in order to escape apprehension, for which he uses a motor vehicle.”

2. He took as a starting point the inference that the appellant by his subsequent conduct in causing damage to the public light bus, had formed such intention whilst he was in charge of the China motor bus. With respect, I think that the magistrate had not differentiated between the words "being in charge" and the word “use” as appears in the above-mentioned provision. The appellant would have been in charge of the bus until he had delivered it to another driver if he had been on shift duty or to the company's depot after he had finished for the day; and if the words "being in charge of" were equated with the word “use” as set out in the section, unfair results would flow from such an interpretation. If, for example, the appellant had alighted from his bus in the course of his duty to inspect some defect in the vehicle and if whilst doing so, he assaults one of the passengers in an altercation, can it be said that he had used his vehicle in committing the offence as provided in the above-mentioned section I think not. This section, in my view, is aimed primarily at the specific use by the driver of a vehicle to commit an offence, such as robbery, or of a get-away car to escape apprehension. From the facts round by the magistrate in the present case, in my view, the intention to damage the PLB was formed after the appellant had been refused compensation by the 2nd defendant for the damage which he had caused to the rear view mirror of the CMB as a result of the minor collision. He was then still in charge of the China motor bus but certainly did not use the vehicle to commit the offence.

3. In my judgment, the magistrate did not have the necessary jurisdiction from the section to exercise his discretion in imposing the disqualification order. Accordingly, the appeal against sentence is allowed to the extent that the disqualification order against the appellant is revoked.