HKSAR v. Lui Kim Ying, Alan

HCMA001124/2000

HCMA 1124/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1124 OF 2000

(ON APPEAL FROM NKCC 4162/2000)

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Coram: Hon Lugar-Mawson J in Court

Date of Hearing: 28 November 2000

Date of Judgment: 28 November 2000

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J U D G M E N T

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1. The appellant, LUI Kim-ying, appeals against his conviction on 25 October 2000 by Mr Hugh Sinclair Permanent Magistrate sitting at North Kowloon Magistracy for one offence of using a motor vehicle without third party insurance, contrary to s. 4(1) & 4(2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272 and nine offences under the Road Traffic (Construction and Maintenance) Regulations made under the Road Traffic Ordinance, Cap. 374.

2. Mr Sinclair sentenced the appellant to pay a fine of $1,500.00 and disqualified him from obtaining or holding a driving licence for all classes of vehicle for the period of 12 months for the insurance offence, and to fines totaling $5,500.00 for the Construction and Maintenance Regulations offences.

3. The appellant appeals his disqualification in respect of the insurance offence, but not the fine for that offence or the other fines.

4. At trial as in this appeal the appellant represented himself. He gave evidence on his own behalf. He called no witnesses.

5. In pursuing his appeal against conviction, the appellant relies on the general grounds of appeal set out in his notice of appeal - Form 101 of the Magistrates (Forms) Rules. He also says - and I quote from the notice:

"I was totally in the dark when I was charged and punished. Also, I had been deceived, and the result was not one that I had hoped for. I have already been to the police station many times to extend my bail and have appeared in court twice, and as a result, I am both physically and mentally exhausted. On this occasion, the judge did not hear what I had to say in defence, he only listened to the account given by one party - this was unfair to me. Also, that vehicle had been held in custody until the following day when it was examined, so one cannot guarantee that the vehicle had not been altered or tampered with."

6. In his submissions before me this morning he repeats matters he raised at trial.

7. In brief the prosecution's case against the appellant was that on 17 February 2000 a police sergeant stopped the appellant's taxi, registration number EM 3753, on Chatham Road South, Kowloon because it was belching black smoke (10th charge). The appellant was driving the taxi and there were passengers in it. It transpired that he had no insurance for it (1st Charge).

8. The taxi was impounded and later examined by a motor vehicle examiner. He found that its:

1. Front lights of the taxi were cracked (2nd charge).

2. Front indicator was broken (3rd charge).

3. Exhaust hose had been improperly fitted, which allowed gases to escape, causing excess noise (4th charge).

4. Universal joint to one of its half shafts was worn and leaking oil (5th charge).

5. Driver's seat belt was worn (6th charge).

6. Offside front tyre was bald (7th charge).

7. Suspension system was worn (8th charge).

8. Breaking system was faulty (9th charge).

9. In evidence the appellant told Mr Sinclair that he had rented the taxi some 4 or 5 months before 17 February. He did not dispute the motor vehicle examiner's findings. Neither did he dispute the sergeant's evidence that the taxi had been emitting black smoke, or that it had several visible faults. His defence to all charges was that it was not his responsibility to ensure that was covered against Third Party Risks, or to maintain the taxi in a proper condition. These matters were the responsibility of the man he had hired the taxi from.

10. Mr Sinclair rightly found that the appellant's belief that the hirer was the person solely responsible under the statutory provisions for insuring and maintaining the taxi was wrong.

11. In his grounds of appeal the appellant implies that someone else might have tampered with the taxi. He did not raise this contention at trial. The vehicle examiner's report on the taxi's condition suggests that the defects he found had occurred over a long period and should have been readily apparent to the appellant, who on his own admission had been driving it for several months. This is claim is no more than wild and unfounded speculation and I dismiss it.

12. To put it bluntly, the appellant had no defence at trial and he has no arguable grounds of appeal against conviction this morning. Mr Sinclair's conviction of him on the 10 charges he faced at trial is unassailable on appeal and therefore his appeal against conviction is dismissed.

Sentence

13. I turn to the appellant's appeal against the sentence disqualifying him from driving for 12 months' in respect of the insurance offence.

14. The appellant has no previous convictions for a criminal offence, though he has been disqualified from driving for three months under the driving offence points provisions.

15. In his appeal against sentence the appellant relies on the general grounds of appeal set out in his notice of appeal (Form 102 of the Magistrates (Forms) Rules), namely that the sentence of disqualification is too severe.

16. In his submissions before me this morning he says that he saw an insurance policy, but now cannot find it. He said nothing about this at trial.

17. The disqualification order was made in accordance with the requirements of section 4(2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, the relevant parts of which provide:

"If a person acts in contravention of this section he shall be liable to a fine and ..... imprisonment ....., 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."

18. The phrase 'special reason' is not defined in the Ordinance. 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 reasons is one that is special to the facts of the particular case. In other words, a mitigating or an 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.

19. In Lee Kam-to v. R (1980) HKLR 43, Sir Denys Roberts CJ held that a belief by the offender that an insurance policy was still in force might amount to a special reason, provided that the belief is based on reasonable grounds.

20. In R v. MAK Kok-kui MA 86 of 1993 (unreported) Keith J. held that ignorance of the limited cover provided for by the policy did not amount to a special reason, because it is incumbent on an accused to make enquiries as to what insurance cover there is over a vehicle he proposes to use.

21. In the present instance the appellant did not suggest that there was, or ever had been, a policy of insurance covering his use of the taxi. It was his case that he assumed that there was one, because it was his belief that the persons and companies who hire out taxis to drivers like him effected the insurance cover over them.

22. This comes no where near to being a special reason. The appellant's belief that there was an insurance policy over the taxi was not based on reasonable grounds. It followed that Mr Sinclair had no special reason not to disqualify the appellant from driving for the minimum period of 12 months' in accordance with the mandatory provisions of s. 4(2) of the Ordinance.

23. Indeed given the appellant's cavalier disregard for his legal obligations, the safety of his passengers other road users and the environment in driving such a wreck as he was while uninsured he may count himself lucky that Mr Sinclair did not exercise his power to impose a longer period of disqualification than he did.

24. The appellant's appeal against sentence is dismissed.

Representation:

Miss Lam Vinci, GC for HKSAR

Appellant in person