HKSAR v. TAMANG, BHIMBAHADUR

HCMA 352/2025

[2026] HKCFI 3079

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 352 OF 2025

(ON APPEAL FROM WKCC 3912/2025)

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J U D G M E N T

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1.  The appellant pleaded guilty to one count of driving without a driving licence[1] (Charge 1), one count of driving an unlicensed vehicle[2] (Charge 2), one count of using a motor vehicle without third party insurance[3] (Charge 3), and one count of driving a motor cycle without wearing an approved protective helmet[4] (Charge 4). He was fined $1,000, $2,000, $2,000, and $1,000 respectively for Charges 1-4. The fines were deducted from bail money and any balance was to be paid within one month after his release from KCCC 1929/2025. A disqualification order of 12 months was imposed for Charge 3.

2.  The appellant now appeals against the sentence for Charges  1-4.

3.  The appeal against sentence was dismissed at the appeal hearing.  These are the reasons.

Facts

4.  The facts admitted by the appellant show that at around 11:30 a.m. on 27 May 2025, while police officers were conducting an enforcement operation against illegal electric mobility devices, the appellant was seen driving an electric bicycle (“the Bicycle”) along Cheung Sha Wan Road towards Mei Foo direction without wearing a protective helmet and without any pedalling action for about 10 metres.  The appellant was thus intercepted for inquiry.

5.  Upon enquiry, it was revealed that the Bicycle was electric-powered with a battery and cables, and the wheels were driven by an electric motor.  The appellant admitted the Bicycle was unlicensed and claimed his driving licence had been lost several months earlier.  He did not have any valid driving licence with him and the Bicycle was not covered by any third party insurance.  The appellant was arrested and he admitted all the offences under caution.

6.  Examination of the Bicycle revealed that it was an electric mobility device that was mechanically propelled and hence a mechanically propelled vehicle as defined in the Road Traffic Ordinance, Cap. 374.

Mitigation

7.  In mitigation, the appellant stated in his letter dated 5 September 2025 that at the time of the offences he was delivering food for Food Panda to provide for his family, namely his wife and a four-year-old son, and that his family was under extreme financial hardship upon his remand in KCCC 1929/2025.  The appellant has 1 previous criminal conviction record, which is not of similar nature to the present offences.  He also has a number of traffic convictions, all of which are not similar, and a fixed penalty record for driving unlicensed vehicle for which he was fined $900 in 2023.  The duty lawyer representing the appellant made no submissions on the magistrate’s indication on the amount of fines to be imposed and disqualification.

Reasons for sentence

8.  In sentencing, the magistrate noted the appellant had a previous record of driving an unlicensed vehicle similar to Charge 2 for which he was fined $900.  He also considered the appellant’s mitigation about being a delivery worker and the stated financial hardship.  Having considered all the circumstances, the magistrate imposed the fines for Charges 1-4 and the 12-month disqualification for Charge 3[5].

Grounds of appeal

9.  The notice of appeal against sentence dated 15 September 2025 stated the sole ground that “the sentence was too severe”.  In his submission dated 12 September 2025, the appellant alleged he could only afford to pay a fine of $1,000, and that it would be difficult for him to find a job without a driving licence.  He further stated that he had to take care of his parents (over 70 years old), his unemployed wife, and his four-year-old son.  Upon inquiry with the appellant at the hearing, he stated that he was currently working as a part-time cleaner earning about $17,000 to $18,000 per month.  He had to pay rent and utilities in the sum of $8,000 per month.

Respondent’s reply

10.  Regarding the disqualification order for Charge 3, the respondent pointed out that the disqualification for not less than 12 months was mandatory unless the court found “special reasons” to order otherwise.  Relying on The Queen v Chang Kwan Woon [1957] HKLR 25 and HKSAR v Tse Wai Tung HCMA 922/2000, the respondent submitted that hardship to the offender (including employability and financial hardship) did not amount to a “special reason”, and the magistrate was correct in imposing the minimum 12-month disqualification.

11.  As to the fines, the respondent submitted the fines imposed for all 4 charges were within the statutory limits and towards the lower end of the spectrum. The respondent further submitted that the duty lawyer representing the appellant made no submissions regarding the proposed fines and disqualification, and that the magistrate accepted the appellant’s request to pay any remaining balance within one month after his release from KCCC 1929/2025.

Consideration

12.  The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that the magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power.  On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate.  On an appeal against sentence, the intermediate appellate court should consider all the facts, mitigation and relevant authorities.

13.  The maximum penalty for the 4 charges is as follows:

Charge 1 – (first conviction) fine $2,000

Charge 2 – (first conviction) fine $5,000 and imprisonment for 3 months

Charge 3 – fine $10,000 and imprisonment for 12 months, disqualification for 12 months to 3 years

Charge 4 – fine $5,000 and imprisonment for 3 months

14.  Regarding the fines imposed for all 4 charges, I agree with the respondent that those fines are within the statutory limits and towards the lower end of the spectrum.  The magistrate must have considered the background and mitigation of the appellant when imposing those fines.  I do not consider them to be manifestly excessive.

15.  As far as the disqualification is concerned, it is well-settled law that financial hardship does not amount to special reason for not imposing disqualification.  Therefore, the magistrate was correct in imposing disqualification for Charge 3.

16.  In view of the above, the appeal against sentence for the 4 charges is dismissed.  The appellant is given 3 months from 27 May 2026 to pay the balance of the fine in the sum of $5,500.