R. v. SZETO WAI KIN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No.346 of 1996

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J U D G M E N T

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1. The appellant pleaded guilty to three charges, namely, failing to give information to the police within 21 days on demand, permitting an unlicensed vehicle to be driven and permitting a vehicle to be driven without a registered third party insurance policy. He was fined $7,000 on the first charge, $2,000 on the second, and $1,000 on the third and in respect of this last charge, he was disqualified for 12 months and was required to resit a driving test. It is against the disqualification and the requirement to resit the driving test that the appellant now appeals before me.

2. The facts were admitted. In the early hours of 17th September 1995, vehicle DN793 was involved in a traffic accident in which some persons were injured. The driver of that vehicle and four passengers left the scene and abandoned the vehicle. About an hour or so later, the appellant arrived at the scene and used his car key to open the vehicle. The police were at the scene and he told them that he had lent the car to a person on the day before, that he did not travel in the car but took a taxi and followed it and that his friend then returned his key to him and left. The appellant denied he was the driver of the vehicle which was involved in the traffic accident. However, he failed to give the particulars of the driver to the police despite their demand and the lapse of 21 days. He also failed to produce an insurance policy to the police when he was asked to do so. This is not surprising because the vehicle licence had expired in September 1994, that is, a year ago. The previous owner told the police that he had sold the vehicle to the appellant in October 1994 and it was a few days before the accident that the appellant asked the previous owner to sign the relevant forms.

3. It is quite clear that the appellant obtained the car in October 1994 and it was only a few days that he wanted to regularise the position. He was, therefore, well aware by approaching the owner to sign the forms, that the vehicle involved did not have a valid licence. And yet, according to him, he lent the vehicle to his friend. He must also be well aware that there was no valid insurance policy. He also deliberately refused to give particulars of the driver to the police. The excuse or explanation given was that he simply did not know who drove the vehicle at the material time.

4. Counsel for the appellant drew my attention to what happened before the learned Magistrate. It appears that after the pleas had been taken and the facts had been admitted, the lawyer representing the appellant made his mitigation and the court fined the appellant on the three counts. It was then the prosecution drew the court's attention to the mandatory disqualification in s.4 of the Motor Vehicle Insurance (Third Party Risks) Ordinance. The court then reviewed the sentence in respect of the third offence and asked defence lawyer to make submission. In the transcript, it was recorded that the lawyer made no submission and stated that there was no special reason to avoid disqualification. Counsel before me submitted that he was not suggesting that there was any special reason but that there was a mitigating factor such that the court should not disqualify the appellant.

5. Before me there is an affirmation by the appellant saying that he was in fact employed by a company as a driver and he wanted the court to limit his disqualification to private cars only so that he could continue to earn a living.

6. Counsel for the prosecution submitted that I may not have a power under s.4(2)(a) to restrict the disqualification to certain categories of vehicle. Neither party had researched on this particular issue. But looking at the particular section, it does appear to me that if the court has the power and the discretion to impose or not to impose a disqualification for special reason, then I should think that the court should also have the power also to limit the disqualification to certain categories of vehicle. Before the point is thoroughly argued, I do take the initial view that I have such a power.

7. The next question I have to decide is whether it is a proper case that I should accede to Counsel's submission. When I look at the evidence put before me, particularly the letter from the employer, it seems that first of all, the lawyer for the appellant in the court below did not tell the court that the appellant's job as a ferry office assistant involved driving a commercial van. The letter from the employer did not say what sort of vehicle he was supposed to drive. It simply said that he was working as a driver. So there seems to be a discrepancy between what the appellant's lawyer said and the letter from the employer.

8. The appellant is a young man. There is nothing to suggest that if he is not able to drive the company van, he will lose his job or would not be able to earn a living. I do not think firstly, what was said on his behalf is a special reason, and secondly, it is a mitigating factor at all. The learned Magistrate was quite right to disqualify him. I see no reason why he should exercise his discretion in refusing to do so.

9. However, I do think that the offences involved of this case do not reflect on the driving skill of the appellant. I do not understand why he was required to take a new test at the conclusion of this disqualification period. So on that issue, I would allow the appeal in part and quash that particular requirement.