THE QUEEN v. CHAN CHONG KIN

IN THE SUPREME COURT Or HONG YONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL No. 1095 OF 1985

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BETWEEN

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JUDGMENT

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1. The appellant pleaded guilty on the 25th November 1985 to an offence contrary to section 41(1)(a) of the Road Traffic Ordinance, Cap. 374 of driving his motor cycle on the 17th June 1935 on a road at a speed exceeding 70 km.p.h. In fact the speed at which he rode was 105 km.p.h.

2. He was convicted, of the offence and was fined $1,000 and, in the words of the Magistrate "disqualified from holding or obtaining a driving licence for all classes except Class I for 12 months and thereafter until passed driving test."

3. He appeals against sentence.

4. The record states -

"2 previous convictions, similar - acknowledged."

5. The dates of those admitted previous convictions is not set out in the record of proceedings but attached to the file is the Royal Hong Kong Police Traffic Conviction and Fixed Penalty Payment Citations Summary.

6. That record shows the following entries, among others:

7. Thus he has 3 fixed penalty offences for exceeding the speed limit and 2 convictions for the same offence. The conviction on the 25th November 1985, the subject matter of this appeal, was his 3rd conviction.

8. Section 41(2) of Cap. 374 provides that a person who is convicted of a third or subsequent offence under this section or under section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of not less than 12 months.

9. The proviso has no application to this appeal.

10. The only question before the court was whether the appellant has been convicted thrice of this offence and whether his last conviction was within 3 years of the date of his conviction the instant case.

11. The relevant dates are not those when the offences took place but when the convictions were entered. Fixed penalty proceedings are not relevant to mandatory disqualification under section 41. That the date of the commission of the offence is immaterial is seen from the proviso to section 41(2) which enacts:

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

No reference is made of the proviso to the date of the commission of last the last offence. It is restricted to the date of the conviction.

12. In this case the 2 earlier convictions were, as I have already stated on the 23rd May 1985. The dates of the offences were on the 8th December 1982 and the 18th February 1983 respectively. For some unknown reason there was a delay in bringing these offences to court.

13. Thus it was mandatory for a disqualification order to be made, the last conviction (as well as the first) being within 3 years.

14. There is power to limit the disqualification by reason of section 69(2) of the Ordinance. The most recent authoritative case on this point is that of the Court of Appeal in R. v. Mo Wing (Court of Appeal No. 746/85.)

15. Under section 69(2)(b) of Cap. 374 the discretionary power of disqualification is limited "to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed."

16. Thus, in this case, it was to be limited to motor cycles.

17. The magistrate sought fit to impose disqualification for all classes except private cars for 12 months.

18. His order should have been expressed in terms of motor cycles and accordingly his order of a 12 month disqualification is amended accordingly to motor cycles, such disqualification to continue thereafter for that period until he has passed the test of driving competence, as provided for by section 70 of the Ordinance.

19. To this limited extent this appeal succeeds.