THE QUEEN v. YAU MAN YICK

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 676 OF 1985

________

BETWEEN

________

__________

JUDGMENT

__________

1. The appellant pleaded guilty to a charge of what can be best described as "speeding". He was travelling 106 k.p.h. in a restricted zone of a 70 k.p.h. limit.

2. His plea before the learned Magistrate was accepted, and he was duly convicted and sentenced. He was fined $1,000, disqualified from driving all types of vehicle for a period of 12 months and ordered to be retested. The 12 months' disqualification was imposed under Section 41(2) of the Road Traffic Ordinance, which reads :

"A person who is convicted of a third or subsequent offence under this section or under section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of not less than 12 months

Provided that when a period of not less than 3 years has elapsed since his last previous conviction for such as offence, the court may deal with the offence as a first offence."

3. The appellant appeared in the Magistracy in person. Subsequent to his conviction and sentence, he had himself legally represented on his application for a review. With equal care and patience, the learned Magistrate entertained the application, but ultimately rejected it for Lack of merits; hence, the present appeal.

4. On facts, little could admittedly be said for the appellants It was submitted before this Court with leave by way of one of the additional Grounds of Appeal to which Counsel for the Crown did not object, that no disqualification could be meted out unless the two or more requisite previous convictions specified in Section 41(2) of the Road Traffic Ordinance stemmed exclusively from either the current provision or Section 15 of the repealed Ordinance.

5. An analogy was sought to be drawn from the provisions in Section 36(2), whereby convictions under it and its repealed predecessor are kept distinctly apart. Section 36(2) is in the following terms :

"A person convicted of an offence under this section shall be disqualified for a period of not less than 2 years in the case of a second or subsequent conviction or of a conviction subsequent to a conviction under section 11(3) of the repealed Ordinance unless the court or magistrate for special reasons orders that he be disqualified for a shorter period or that he not be disqualified

Provided that when a period of not less 5 years has elapsed since his last previous conviction of an offence under this section or under section 11(3) of the repealed Ordinance, the court or magistrate may deal with the offence as a first offence."

6. It was urged upon me that the Legislature must have intended throughout the Ordinance, not merely in Section 36(2) but also in Section 41(2) to put convictions into two water-tight compartments, as it were, for the imposition of a disqualification.

7. There seems to be a need in Section 36(2) for a special treatment, so to speak, in drafting. The emphasis is on convictions. It requires in all two convictions, that is to say, either both under the current section or with one previous conviction under the repealed Ordinance for that Section 36(2) to spring into operations Convictions under different sections are distinct and have to be kept clear of one and other in Section 36(2). Proven offences committed under different provisions would result in different convictions, but when offences of the same kind, such as speeding offences, are spoken of as a class, the sources of their creation would be quite irrelevant. To put it shortly : Section 41(2) refers to speeding offences as a generality, but Section 36(2) descends into specific speeding convictions under different provisions, which are not to be confused. The drafting of Section 36(2) could well have been attempted in the same way as Section 41(2), viz. "A person who is convicted of a second or subsequent offence under this section or under Section 11(3) of the repealed Ordinance relating to reckless driving causing death..."(The telescoped version is adopted for emphasis). It is essentially a matter of drafting preference which accounts for the decidedly different approach under Section 41(2). Section 41(2) in effect speaks of "a third or subsequent offence relating to the speed at which any vehicle shall be driven on any road" under one section or another. (The underlining and rearrangement are mine). It is all too easy to criticize with hindsight. There may well be room for improvement in the draftsmanship for Section 41(2), but the real question posed for the learned Magistrate, as it was reiterated before this Court, was what that sub-section meant.

8. Confining to that part of Section 41(2) presently under consideration viz. "A person who is convicted of a third or subsequent offence ......... under Section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road ....", it would appear that there could be no further charges preferred or convictions recorded under that repealed Section 15. If Mr. Kan were correct that convictions for offences under the two sections must be taken separately, the last-mentioned portion of Section 41(2) would be wholly superfluous and ineffective. The Legislature is not to be presumed to have made reference to Section 15 of the repealed Ordinance in vain.

9. Section 41(2) and Section 36(2) are evidently dissimilar in format and the language is designed to cater for that difference.

10. In my view, no analogy can properly be drawn from Section 36(2) for the true construction of Section 41(2). Furthermore, the language in Section 36(2) does not per se militate against the interpretation put upon Section 41(2) by the learned Magistrate.

11. This matter does not arise for the first time before this Court. It has been ventilated before my brother, Mr. Justice Penlington in R. v. Leung See-pui. Magistracy Appeal No. 357 of 1985 judgment of which was deliyered on the 14th May 1985. Penlington, J. examined the sections involved and came to a conclusion adverse to the appellant.

12. There is no material before me that has or would cast any doubt on the conclusion so reached by the learned judge. If only on account of judicial comity, I can see no reason whatsoever, not to follow his conclusion on exactly, the same section. In the result, the legal submissions advanced on behalf of the appellant by Mr. Kan cannot succeed.

13. I need not take advantage of the assistance offered by Mr. Kilgour, Counsel for the Crown. As I have said, there is also no substance in the rest of the Grounds of Appeal on factual matters. The appeal of the appellant must fail and the appeal is therefore dismissed.