HKSAR v. CHAN WING KUEN

HCMA1047 & 1048/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NOS.1047 and 1048 OF 2005

(ON APPEAL FROM KTCC 6558 AND 6559 OF 2005)

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(Heard Together)

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J U D G M E N T

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Appeal against sentence

1. In these con-joined appeals the appellant appeals against the sentences imposed on him by Mr Tallentire on 12 October 2005 following his conviction on his pleas of guilty on 28 September 2005 to no less than seven separate charges, four of which arose from the events that had occurred on 1 September and three of which from events occurred on 13 September 2005.

Charges and sentence

2. All the charges, save those of using a vehicle without third-party insurance, of which the appellant was convicted and sentenced were brought under the Road Traffic Ordinance, Cap.374.  Those that arose out of the events of 1 September 2005 were :

(1)     speeding, contrary to section 41(1)(a);

(2)     driving whilst disqualified, contrary to section 44(1)(b) ;

(3)     using a vehicle without third-party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272; and

(4)     driving a motor vehicle with an alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1).

Those that arose out of the events of 13 September 2005 were :

(1)     speeding, contrary to section 41(1)(a);

(2)     driving whilst disqualified, contrary to section 44(1)(b); and

(3)     using a vehicle without third-party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272.

Sentence

3. In respect of the offences arising out of the 1 September 2005 events the subject of HCMA1047/2005 the appellant was sentenced as follows :

charge 1 —  an absolute discharge;

charge 2 —  detention centre and a disqualification from driving for three years;

charge 3 —  detention centre and a disqualification from driving order for 12 months, ordered to be served concurrently with the disqualification order made in respect of charge 2; and

charge 4 —  detention centre.

4. In respect of the offences arising out of the 13 September 2005 events the appellant was sentenced as follows :

charge 1 — an absolute discharge;

charge 2 — detention centre and disqualification from driving order for three years and ordered to be served consecutively with the sentence of disqualification of three years imposed in respect of charge 2 arising from the events of 1 September 2005;

charge 3 — detention centre and disqualification from driving order for 12 months, to be served concurrently with the disqualification from driving order of three years imposed in respect of charge 2.

5. In the result, the overall effect of the sentences imposed on the appellant was that he was ordered to be detained in a detention centre and disqualified from driving for six years.

The appellant’s previous driving convictions

6. At the hearing before Mr Tallentire the appellant accepted his previous convictions in respect of road traffic offences included a disqualification from driving for three months on 6 January 2003 under the Driving Offences Points Ordinance.  Secondly, that on 25 April 2003 the appellant was convicted of driving whilst disqualified and using a vehicle without third-party insurance in respect of offences that had occurred on 18 March 2003, for which he had been sentenced to two months imprisonment suspended for 12 months and disqualified from driving for 12 months with effect from 11 April 2003.  Thirdly, that on 7 June 2005 for an offence of using a vehicle on a road without insurance he was disqualified from driving for 12 months.  It was that disqualification that he was in breach of by his conduct on 1 and 13 September 2005.

Reasons for sentence

7. Mr Tallentire called for and had before him reports on the appellant when sentence was imposed on 12 October 2005, namely a background report prepared by a probation officer and a detention centre suitability report.  The appellant was 24 years of age, single, residing with his family and in employment as he had been for some years as a fire safety equipment technician earning what was variously described as either $12,000 or $16,000 a month.  Of the previous offences committed in respect of the use of motor vehicles the probation officer observed :

“Defendant committed similar offences.  Previously, he had received non-custodial sentences.  Disappointingly, he failed to treasure the chances granted by the court and soon relapsed.”

8. The detention centre report recommended a period of disciplinary training and described the appellant as suitable for detention in a detention centre.

9. Mr Tallentire noted in sentencing the appellant in respect of the two sets of charges that the appellant had been convicted of driving whilst disqualified two years earlier and had been given the benefit of a term of imprisonment that had been suspended.  Nevertheless, he noted that the appellant had gone on to commit these two sets of offences, and in particular that those of 13 September 2005 had been committed whilst the appellant was on bail for similar offences of driving whilst disqualified and using a vehicle without third-party insurance that had been committed only days earlier on 1 September 2005.  He noted of the appellant’s conduct that the public was at risk, because a disqualified driver cannot be insured.  Also and understandably he observed that the appellant’s conduct showed complete disregard of a court order.  In the result, he determined that detention in a detention centre was the appropriate order to make.

10. In respect of the issue of disqualification from driving for the offences of driving whilst disqualified, contrary to section 44(1)(b) of the Road Traffic Ordinance Mr Tallentire indicated to counsel appearing for the appellant on 12 October 2005 that his initial construction of section 44(2)(b) was that the Ordinance required a minimum period of disqualification in respect of the driving whilst disqualified offences of six years, the minimum period of disqualification in each case being three years and each period of disqualification being required to be made consecutive one with the other.  (See page 41 I-P of the Appeal Bundle.)  He invited counsel for the appellant to make submissions, if necessary.  None to the contrary were made.

11. On 25 October 2005, when ruling on an application made to him to review the sentences that had been imposed on the appellant, Mr Tallentire rejected a submission that the periods of disqualification arising from the two offences in respect of driving whilst disqualified could be ordered to be less than six years, noting :

“As perhaps just an aside, turning to the question of disqualification, section 44(2)(iii) of the Traffic Ordinance is quite specific.  The periods of disqualification have to be consecutive.  You cannot make them concurrent.  In these circumstances, a period of six years was the absolute minimum period that I could impose on the last occasion.  This was accepted by your legal representative.”

Grounds of appeal against sentence

12. Mr Donald has advanced two primary grounds of appeal against the sentences imposed on the appellant in respect of the two sets of offences that now come before the court as HCMA1047 and 1048 of 2005.  They are as follows :

“1.  That the Learned Magistrate erred in law by imposing a sentence of detention in a detention centre for charges 2, 3 and 4 of KTCC6558/2005 and charge 2 of KTCC559/2005 as such a sentence is not authorised by law in respect of the offence of driving whilst disqualified.”

13. No doubt, because he realised perhaps belatedly that ground 1 was irrelevant to and did not impugn the detention centre orders made in respect of charges 3 and 4 because they were not orders made for offences of driving whilst disqualified Mr Donald applied for and was granted leave to add a fourth ground of appeal.  I will deal with that in due course.

14. Ground 2 was in these terms :

“2.   That the Learned Magistrate erred in concluding that he was legally compelled to impose consecutive periods of disqualification for charge 2 of KTCC6558/2005 and charge 2 of KTCC6599/2005.”

Ground 3

15. It was contended that the sentences and periods of disqualification imposed were manifestly excessive and wrong in principle.

Ground 4

16. It was contented “that the learned magistrate imposed detention centre order in respect of the offence of using a vehicle without third-party insurance and driving a motor vehicle with an alcohol concentration in breath exceeding the prescribed limit as he was following the detention centre order he had made for the offence of driving whilst disqualified, which was the most serious of all the offences the appellant was charged with and except for ordering a detention centre order for the driving whilst disqualified offence the learned magistrate would not have imposed detention centre orders”.

17. In his written skeleton argument Mr Donald referred to section 44(1) of the Road Traffic Ordinance, which provision creates the offence of driving whilst disqualified :

“A person disqualified from holding or obtaining a driving licence who —

(b) while he is disqualified drives on a road a motor vehicle…

commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months.”

18. Mr Donald submits that the sentencing power available to the magistrate is restricted to imposing a fine, imprisonment and/or disqualification.  In support of that submission, he cites the judgment of the then Chief Justice Roberts in R. v. Siu Wing Shing [1977-1979] HKC 570.  In that case, the appellant had been sentenced to be detained in a detention centre after having been convicted, inter alia, of driving whilst disqualified.  The then section 25 of the Road Traffic Ordinance provided that upon conviction for the offence of driving whilst disqualified the defendant :

“… shall be sentenced to imprisonment for not less than one month in the case of every such conviction except where —

(a)   the conviction is a first conviction for the offence…”

The subsection makes provision for other exceptional circumstances and then provides that the court must be satisfied that having regard to the special circumstances of the case a fine would be adequate punishment for the offence.

19. In his judgment Robert CJ went on to consider the tension between the provisions of section 109A of the Criminal Procedure Ordinance, which restricts the powers of courts to impose a sentence of imprisonment on persons over the age of 16 and under the age of 21 years, and the provision in section 25.  The appellant in that case was a person under 21 years of age at the relevant time.  He concluded that the choice available to the magistrate was to impose a fine or a sentence of imprisonment and that he had no power to impose an order of detention in a detention centre.

20. In addition, Mr Donald referred the court to the judgment of Beeson J in HKSAR v. Ng Suen Wai,HCMA375/2003.  In the conclusion of her judgment the judge said :

“Given the serious consequences of breaches of disqualification orders, it is clear that magistrates should consider sentences of imprisonment for all breaches of disqualification, unless very exceptional circumstances exist.  No exceptional circumstances exist here.”

21. The burden of Mr Donald’s submission, in reality, is simply this : that the appellant should have been sentenced to a term of imprisonment and not made subject of a detention centre order because the time in which he will be incarcerated would have been less.  The submission is as simple as that.

Ground 2

22. In support of ground 2 Mr Donald invites the court to construe the provisions of section 44(3) of the Road Traffic Ordinance :

“The period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.”  (Emphasis added)

23. Of course, subsection 2 of the provision deals with the minimum periods of disqualification to be imposed on a defendant convicted of, inter alia, driving a motor vehicle on a road whilst disqualified from driving that class of motor vehicle.

24. In the course of his submissions Mr Donald drew the court’s attention to the judgment of Deputy Judge McMahon, as he then was, in HKSAR v. Tsui Wai Nin [2001] 1 HKC 276.  In that case the magistrate had imposed periods of disqualification in respect of offences of driving a motor vehicle with an alcoholic concentration in breath exceeding the prescribed limit (charge B); driving whilst disqualified (charge C) and using a motor vehicle without third-party insurance (charge D).  He ordered the periods of disqualification in respect of charges B and D to be served concurrently and the period of disqualification in respect of charge C to commence at the end of that period.  At the end of that judgment, Deputy Judge McMahon, understandably, said of the magistrate’s conduct that he was :

“…doing no more than was plainly required by the terms of section 44(3) of the Road Traffic Ordinance.”

The Respondent’s submissions

Ground 1

25. Ms Tsang submits that the judgment of Roberts CJ in R. v. Siu Wing Shing is simply irrelevant because there the judge was construing an entirely different statutory provision which has been repealed.  Under the repealed provision a court dealing with a defendant convicted of driving whilst disqualified was required to sentence a defendant to “imprisonment of not less than one month” unless special circumstances obtained.  Ms Tsang draws the court’s attention to section 4(1) of the Detention Centre Ordinance, Cap.239, which provides that a court may make a detention order in respect of an appropriate young offender “in lieu of imposing any other sentence”.

26. She submits that not only was the magistrate entitled to order that the appellant be detained in a detention centre but also that it was the appropriate order to make in all the circumstances.

Ground 2

27. Ms Tsang concedes that operation of section 44(3) of the Road Traffic Ordinance did not require the magistrate to impose orders of disqualification that were ordered to be consecutive, one with the other, in respect of the orders of disqualification made for offences of driving whilst disqualified.  However, in her oral submissions, she had submitted as best I am able to understand the argument, that somehow section 44(2) had the effect of requiring a mandatory consecutive period of disqualification.  I hope I do not do her argument any injustice just by saying I simply do not understand that when one reads the words of the subsection.

28. Nevertheless, Ms Tsang submits that, at the end of the day, the magistrate arrived at the appropriate total period of disqualification that he imposed on the appellant.  She supports that submission by inviting this court to have regard to the appellant’s appalling road traffic record and to note, in particular, that the second set of offences was committed whilst the appellant was on bail for the first set of offences committed 13 days earlier.

29. Finally Mr Donald was permitted to adduce into evidence a letter from the Kowloon Hospital, Department of Psychiatry, in which reference is made to the adverse effect that the appellant’s incarceration has had on the emotional and mental welfare of his mother who has a history of illness in that area.   

Conclusion

Grounds 1, 3 and 4

30. I am satisfied that under the current legislation it is clear that an option open to the magistrate in the circumstances obtaining in this case was to make an order that the appellant be detained in a detention centre.  Mr Donald’s reference to the case of Siu Wing Shing, which dealt with repealed legislation of a particular kind that no longer resonates in current legislation was irrelevant and, frankly, unhelpful.  There is no merit in the various submissions that he makes in support of these grounds of appeal in respect of the detention centre orders.

31. In the circumstances, in my judgment, having regard to the appellant’s traffic record and the appellant’s commission of these offences, particularly having regard to the fact that the offences of 13 September were committed whilst he was on bail and therefore in flagrant breach the court’s order the magistrate was fully justified in ordering that the appellant be detained in a detention centre.

Ground 4 

32. In respect of ground 4, Mr Donald was unable to point to anything in the transcript to support his bare contention that the magistrate had imposed detention centre orders in respect of charges 3 and 4 arising from the events of 1 September merely because he had made that order in respect of charge 2.  In any event, as I have said I am satisfied that the magistrate was fully justified in imposing the order that the appellant be detained in a detention centre in respect of charge 2.

Ground 2

33. In respect of the issue of mandatory consecutive disqualification in respect of section 44 of the Road Traffic Ordinance, I am satisfied that in dealing with the two separate offences of driving whilst disqualified operation of section 44(3) of the Road Traffic Ordinance did not require the magistrate to make the minimum periods of disqualification that he ordered, namely, three years disqualification, consecutive one with each other.  They were not disqualifications ordered “under any other provision of this Ordinance”.  They were, of course, disqualifications ordered under the same provision of this Ordinance, namely section 44(2).

34. Nevertheless, mindful of the appalling traffic record of the appellant and the circumstances in particular in which he committed the last set of offences, namely whilst on bail for the earlier set of offences, in my judgment the magistrate imposed the appropriate orders of disqualification upon the appellant.  Accordingly, in the result, the appeal against sentence is dismissed.