HKSAR v. Sharma Dhiraj

HCMA 96/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 96 OF 2017

(ON APPEAL FROM TMS NO 17162 OF 2016)

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J U D G M E N T

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1.Mr Sharma Dhiraj pleaded guilty to one count of using a light goods vehicle when there was not in force such a policy of insurance or such a security in respect of third party risks as complied with the requirements of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272.

2.On 1 February 2017, Mr Sharma pleaded guilty and was sentenced to $1,500 fine and a disqualification period from driving all classes of vehicle for 12 months.  Mr Sharma now appeals against his sentence, not the financial penalty but the disqualification period.

3.The facts of the case are as follows: on 27 June 2016, at 7 am, the appellant was driving a light goods vehicle, LM7587, in the Yuen Long area when he had a minor accident.  No one was injured and there were no other vehicles involved. However, the police did attend the scene of the accident.  Subsequent investigation revealed that this vehicle was sold by its registered owners some two months prior to the accident.  However, the new owner had not yet transferred ownership of this vehicle.  The previous registered owner’s insurance had expired on 10 June 2016, some 17 days prior to this accident.  The appellant told the police, under caution, that he had received a telephone call from an unknown man, asking him to help drive the vehicle on that day.  He was asked to pick up this vehicle from Cheung Sha Wan area and do a delivery.  The appellant told the police he did not know who the caller was, nor knew the identity of the registered owner of this light goods vehicle.

4.The appellant pleaded guilty and admitted those facts.  Mitigation was put forward on his behalf.  The magistrate was told the appellant was a 40-year-old professional driver who would sometimes drive part-time for $200 an hour.  The appellant is the breadwinner of his family and had, at that time, a clear record as well as a clear traffic record.  It was stressed to the magistrate that the appellant received a phone call, asking him if he was available to drive on a one-off basis to which he agreed.  He admitted he did not ask the caller, nor check if the vehicle he was to drive had a valid insurance policy.  The appellant assumed it had insurance.

5.In mitigation, the magistrate was urged to impose a less than the mandatory 12 month disqualification period.

6.The magistrate did consider section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance which clearly states a person convicted of using a motor vehicle without insurance in respect of third party risks:

“… shall be liable to a fine of $10000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.”

7.The magistrate, in his reasons for sentence, carefully considered whether the appellant had a special reason he could consider valid to impose a less than 12 month disqualification period.  The magistrate went through relevant authorities:

“7. The meaning of ‘special reason’ was explained in HKSAR v Lui Kim Ying Alan [2000] 3 HKLRD 622, that ‘As long ago as 1957 in R v. Chang Kwan Woon [1957] HKLR 25 the Full Court, as it then was, applying principles drawn from analogous English cases, said that a special reason is one that is special to the facts of the particular case. In other words, a mitigating or extenuating circumstance not amounting in law to a defence to the charge, but which is directly connected with the commission of the offence and one which the court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a special reason within the exception.’

8. In R v. Lee Kam To [1980] HKLR 43 it was also held that a belief by a defendant that the insurance in respect of the third party risks was in force could constitute a special reason as long as it was based on reasonable grounds.

9. As to what constitutes reasonable grounds, the following are the observations of Lord Goddard CJ in Knowler v Rennison [1947] 1 KB 488 that ‘… Belief, however honest, cannot in our opinion be regarded as a special reason, unless it is based on reasonable grounds.’

10. In the present case, the defendant admitted that he had not checked or verified with anyone as to whether LGV LM7587 had a valid insurance policy at the material time. He explained that he thought the vehicle had a valid insurance policy because that vehicle was used regularly for delivering goods and he was just substituting the original driver on the material day, therefore the defendant believed LGV LM7587 did have a valid insurance policy.

11. I do not find the mistaken belief by the defendant that the insurance in respect of third party risks was in force could constitute a special reason because it was not based on reasonable grounds.  If the defendant did not enquire at all but rely on his own guessing, his belief, however honest it might be, cannot be considered as founded on reasonable grounds.  And thus, cannot be considered as a special reason.”

8.The magistrate went on to quite rightly say that relying on the mitigation that driving for income, therefore suffering a hardship, is not a special reason. 

9.This is an appeal by way of rehearing on the papers.  The only ground advanced today is that the disqualification period of 12 months imposed financial hardship on the appellant and his family.  I sympathise and I am sure there is a financial hardship that will materialise.  The appellant stressed that he did not know the vehicle was not insured and he honestly believed it was.  However, I see from the papers that he admitted that the caller was a stranger, which should have meant he had to be more vigilant, being a professional driver.

10.From the papers, I find the magistrate carefully considered whether there was any mitigation that could constitute a special reason to disqualify the appellant for less than 12 months.  I conclude there is no legal error by the magistrate and I can see no reason myself why the disqualification should not be 12 months as dictated by the Ordinance.  I see no special reason the magistrate should have considered applicable to the appellant’s mitigation and sentence.

11.I therefore find the sentence and disqualification period correct and not manifestly excessive.  I dismiss the appeal against the sentence.

Mr Prakash L Daryanani SPP, of the Department of Justice, for the respondent

The appellant appeared in person