R. v. SIU KAM YUEN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 965 OF 1995

______________

________________

J U D G M E N T

________________

1. This is was an appeal against a sentence, and in particular an order for disqualification imposed for allowing another person to drive his vehicle without there being any insurance cover.

2. When he came to sentence the Appellant, the learned Magistrate made a mistake. He imposed a disqualification order on the Appellant, but imposed it for the offence of allowing his vehicle to be driven when it was not licensed, which does not carry a disqualification, instead of for permitting his vehicle to be used without insurance cover. He did not spot the mistake until writing his Reasons for Sentence prior to the appeal. That meant, of course, that the order for disqualification was unlawful and could not stand. However, as I pointed out to Mr Selwyn Yu who appeared on the appeal, I had the jurisdiction, on appeal against sentence, to increase a sentence. As clearly the learned Magistrate had made an error, and as clearly a disqualification order lay in relation to the offence of allowing his vehicle to be driven without insurance cover, I should, as the appellate court, increase that sentence to include a disqualification order.

3. However, I allowed Mr Yu to argue on the basis that there were special reasons why a disqualification order should not be imposed in this case. Mr Yu pointed out to me that in the Brief Facts, which of course were agreed facts, it was stated that:

"D2 (the Appellant) was later located on 14.8.95 and Exhibit 4 was taken from him, in which, he admitted that he had already known D1, his employee, was not a valid Driving License Holder and on 1.8.95, he had given an instruction to D1 to drive away the above-mentioned vehicle which had been parked at one end of the bridge in the Shek Hang Village in order not to cause obstruction at there."

4. In his Reasons for Sentence, when stating why he would not find that there were special circumstances allowing him to exercise his discretion not to disqualify in this case, the learned Magistrate said: "The vehicle was not being moved a short distance, for example, a few feet." It was not, with respect, a matter of how far the vehicle was in fact moved, but how far the appellant was found to have allowed the unlicensed driver to drive the vehicle. The Brief Facts clearly state that that was limited to driving the van so as to remove the obstruction to a bridge. That was a significant factor to be taken into account in deciding whether or not he should exercise his discretion not to impose a disqualification order.

5. This was a remote area of the New Territories and the evidence was that the appellant only intended that the vehicle should be driven a very short distance indeed. In these circumstances, I felt that I should not, as the appellate court, increase the sentence for the offence of allowing his vehicle to be driven without insurance cover by imposing a disqualification order, as the learned Magistrate had clearly intended to do.