R. v. Lui Wing Han

HCMA000502/1997

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 502 OF 1997

(On Appeal from ESC No. 1708 of 1997)

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Coram: Hon Wally Yeung J. in Court

Date of hearing: 12 June 1997

Date of judgment: 12 June 1997

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J U D G M E N T

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1. The applicant, LUI Wing-han, pleaded guilty to a charge of Driving while disqualified, contrary to section 12(2)(b) of the Road Traffic Driving Offence Points Ordinance, a charge of Driving without third party insurance, and a charge Failing to comply with traffic sign.

2. In respect of the 1st charge, she was fined $10,000. In respect of the 2nd charge, she was sentenced to 6 months' imprisonment, suspended for a period of 3 years. In respect of the 3rd charge, she was fined $1,000. Also in respect of the first two charges, she was disqualified from holding or obtaining a driving licence for a period of three years. In addition to all those sentences, the applicant was also ordered to pay the cost of the proceedings in the sum of $5,000.

3. The facts of this case are relatively simple and straight-forward. In the record of the proceedings, which is in Chinese, it was suggested that the applicant failed to stop before the stop line at the junction of Morrison Hill Road and Sports Road. The brief facts of the case, which had been agreed to by the applicant, indicated she was then stopped and asked to produce her driving licence. She was unable to do so, and further enquiry revealed that she had been disqualified from holding or obtaining a driving licence until 28 April 1997, that was about a month after the date of the offence. That particular disqualification order was made under the Driving Offence Points Ordinance.

4. In mitigation, it was suggested that at the material time the applicant was affected by the illness of her daughter and her father. At the time of the offence, she was, in fact, returning home having realised that she was driving whilst being disqualified.

5. Driving while disqualified and hence, without third party insurance, is a very serious offence as other innocent road users who are injured in any traffic accident may be left without any compensation.

6. A term of imprisonment for driving without third party insurance is normally called for. Whether such term of imprisonment will be suspended or not is a matter for the trial judge to decide depending on the circumstances of each case. But in my view, it is wrong to treat a suspended sentence as a lenient sentence and then try to supplement it with a heavy fine or other penalty.

7. Insofar as the learned magistrate purported to disqualify the applicant for an offence under section 12(2)(b) of the Road Traffic Driving Offence Points Ordinance, I am of the view that he was in error.

8. Having emphasised the seriousness of an offence of driving without third party insurance, I am of the view that the present case, perhaps, was not a very bad case of the type. The applicant was only disqualified because she had accumulated enough traffic offence points, and not because of any serious traffic offence.

9. The total fine, of course, in effect, is one of $16,000. In my view, a suspended term of imprisonment of 6 months together with this fine, which amounts to $16,000, was too excessive and should be reduced.

10. I have considered the background of this matter and the various factors advanced by counsel. I am of the view that the application for leave to appeal against sentence ought to be allowed, and the sentences in respect of the three charges will be reduced as follows.

11. So far as the 1st charge is concerned, the fine of $10,000 is quashed and in substitution thereof, a fine of $5,000.

12. So far as the 2nd charge is concerned, insofar as the learned magistrate purported to disqualify the applicant for the A charge, such disqualification order is hereby quashed as well. In respect of the 2nd charge of driving without third party insurance, the 6 months' imprisonment suspended for a period of 3 years is also quashed, and in substitution thereof, a term of 4 months' imprisonment, suspended for a period of 2 years. And in respect of this 2nd charge of Driving without third party insurance, the period of disqualification is also reduced from one of 3 years to a period of 12 months.

13. In respect of the 3rd charge, the fine of $1,000 is to stand. There is, in my view, no need to impose the further penalty of the cost of $5,000. Therefore, the order, of course, of $5,000 is also quashed.

14. The application for leave to appeal is granted, and the orders in terms of what I have just set out will replace the original sentence.

Representation:

Mr W S CHEUNG, Crown Counsel, for the Respondent

Mr Andrew Macrae (J Chan, Yip, So & Partners) for the Appellant