THE QUEEN v. WONG KEI KWONG

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 836 OF 1987

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JUDGMENT

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1. The appellant pleaded guilty to driving while disqualified and was sentenced to three months’ imprisonment. He was also fined and further disqualified. After serving two weeks of his sentence he was granted bail pending appeal. Through his counsel he now asks that the prison sentence be suspended.

2. The appellant is a newspaper vendor and is in partnership with his brother. They use a light goods vehicle for delivering newspapers. The appellant was disqualified under the Road Traffic (Driving - Offence Points) Ordinance.

3. On the day of this offence-the appellant's brother had a stomachache and did not feel like driving. The appellant took a chance, but was stopped at a police road block after driving for 15 minutes.

4. The appellant is 37, married with two children and the sole breadwinner. His previous .convictions are for traffic offences only.

5. The magistrate’s disqualified amounts to a contempt for a Court order.

(1) Driving while disqualified amounts to a contempt for Court order.

(2) The actual driving was in furtherance of the defendant's commercial interests rather than in any emergency situation.

6. In Chan Hon Piu v. R.[1], Barnes J. reviewed the recent Hong Kong authorities. He concluded: -

"There is therefore ample authority to justify a decision not to impose an immediate custodial sentence for a breach of a disqualification order if a magistrate finds that the offender has never suffered imprisonment before and the breach was not flagrantly committed or, if flagrantly committed, some factor, such as immaturity, for example, operated to diminish culpability."

7. This breach was a flagrant one and there were no mitigating circumstances apart from the appellants guilty plea, which was inevitable, and his lack of a criminal record. There was therefore no justification for suspending the sentence.

8. As an act of mercy, however, I propose to reduce the sentence to 14 days in order that the appellant will not have to return to prison. He has already been punished and I think it unlikely that he will offend in this way again.

9. To that extent, this appea1 is allowed.