THE QUEEN v. LEE FOOK-CHOI

Headnote

Appeal from sentence of disqualification for 12 months from driving all classes of vehicles for conviction on charge of reckless driving - professional driver for 23 years - first serious road traffic offence - S. 70(1) of the Road Traffic Ordinance provides that where a period of not less than 6 months disqualification is imposed the court shall order the person disqualified to retake the driving test - as there was no evidence to show that the appellant was not a competent driver period of disqualifi-cation reduced so that S. 70(1) would not bite.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 647 of 1985

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BETWEEN

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JUDGMENT

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1. The appellant was convicted by a Magistrate on the 13th June 1985 of a charge of reckless driving and two other road traffic offences. In respect of the reckless driving charge he was originally sentenced to three months' imprisonment, but on review the sentence was varied to a fine of $2,000, one month's imprisonment suspended for twelve months and to disqualification from driving all classes of vehicles for twelve months. The appellant originally appealed against his conviction and sentence on this charge, but at the hearing abandoned his appeal against conviction. The appeal against sentence has been restricted to the period of disqualification.

2. There is no appeal in respect of the other two offences.

3. I allowed the appeal to the extent that the period of disqualification be reduced to allow it to be terminated as from the date of the hearing of the appeal. I said that I would give reasons for my decision later and I shall now proceed to do so.

4. The facts reveal that on the 20th September 1984 at about 5.20 p.m. the appellant disobeyed a signal given by a police officer to stop the public light bus that he was driving in the area of Taipo.  Not only did the appellant continue to drive but he accelerated and zig zagged the vehicle towards the police officer. He passed the police officer at a speed of about 25 m.p.h. The driving clearly amounted to reckless driving and a period of disqualification was warranted. The appellant explained that he had driven in that manner because he had earlier that day received a fixed penalty ticket.

5. The appellant is a married man aged 46 with four children. He and his family are buying the public light bus by way of hire purchase. The appellant has held a driving licence for 23 years. In fact the appellant holds separate licences to drive a private car, a public light bus, and a public omnibus.  Formerly he was a driver with the Kowloon Motor Bus Company.

6. The appellant has a number of fixed penalty citations for technical infringements of the road traffic laws, the majority of which relate to the picking up and setting down of passengers, but he has no previous conviction for a serious road traffic offence.

7. The power to disqualify is conferred by Section 69 of the Road Traffic Ordinance which where relevant provides:-

As a result of his disqualification for twelve months, the appellant renders himself liable to a Court Order under Section 70(1) of the Ordinance which is a mandatory requirement to retake the driving test.  The section reads:

"70(1) Where a person is disqualified for a period of not less than 6 months the court shall, whether or not such person has previously passed the test of competence to drive prescribed under this Ordinance, order him to be disqualified until he has, after the date of .the order, passed that test."

8. Although it is necessary to apply for an order before the section can take effect the court has no discretion to refuse an order. This is a new section which took effect on the 25th August 1984 when the new Road Traffic Ordinance came into force. There is no equivalent to this section in England. However, Section 93(7) of the Road Traffic Act 1972 gives a discretionary power to the Court in England in a case where there is a provision for a mandatory or discretionary disqualification to order the person convicted to remain disqualified until he passes a test of competence to drive. It is clear from the English authorities that an order for disqualification until the passing of a driving test should not be imposed as part of the penalty for the offence for Section 93(7) is not intended to be punitive. In R. v. Donnelly (1975) RTR 243. The headnote reads:

This case was followed in R. v. Banks (John) (1978) RTR 535 where it was held:

"(2) That the order that a driver convicted of a motoring offence should take a test of competence to drive under section 93(7) of the, Road Traffic Act 1972 was appropriate only in cases of age or infirmity or where the circumstances of the offence were such that the offending driver was not a competent driver; and, that, since there was no reason to suppose that the appellant was incompetent to drive, the order under section 93(7) would be quashed. Per curiam Section 93(7) of the Road Traffic Act 1972 is not designed to be punitive."

9. An example of the serious consequences that could arise if a period of not less than 6 months disqualification is imposed would be where a person has three convictions for speeding within a period of three years. This will be observed from the provisions of Section 41 of the Ordinance which reads:-

10. As a result if a professional driver with an otherwise impeccable driving record should be convicted within a period of 3 years of three offences of exceeding the speed limit by only 1 kilometre an hour on each occasion, he will be subject not only to the mandatory disqualification for 12 months, but also to the risk of an order being made under section 70(1) to retake the driving test. Upon the expiry of the disqualification period several further months will necessarily have to elapse before the test can be taken. The hardship that would be suffered by a professional driver is self-evident apart from the exercise in futility for a competent driver to be retested. Having regard to the serious consequences that may arise as a result of this draconian penalty the legislature may wish to consider whether that was its intention when the legislation was passed.

11. In this case the appellant is undoubtedly a competent professional driver who until the present offence had a good driving record. In these circumstances there can be no justification for requiring him to retake the driving test. I therefore allowed the appeal by reducing the period of disqualification below 6 months in order that the appellant did not become subject to an order being made under S. 70(1).