Case Document

100%Judiciary

HCMA000510/1999

HCMA510/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 510 OF 1999

(On appeal from SKCC 905 of 1999)

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BETWEEN
	HKSAR	Respondent

	AND

	WONG CHI-MING	Appellant

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Coram: Hon Mr Justice YEUNG in Court

Date of hearing: 13 August 1999

Date of delivery of judgment: 13 August 1999

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J U D G M E N T

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1. This is the judgment of this court on this appeal.

2. The appellant, WONG Chi-ming, pleaded guilty to a charge of driving whilst disqualified and using a vehicle without insurance. He was sentenced to four months' imprisonment for each charge, to run concurrently. Two months of a four months' suspended sentence imposed on the appellant on an earlier occasion for similar offences was ordered to be activated and to be served consecutively. The appellant has to serve a total of six months' imprisonment. He now appeals against the sentences, and he is on bail pending appeal.

3. The prosecution's case was that the appellant drove a car owned by his sister on 1 February 1999. He was stopped shortly after midnight and he admitted that he had been disqualified from driving. He was then taken to the police station and he offered the explanation that initially his passenger had been driving but had felt uncomfortable, and he only drove the car upon the request of his friend.

4. In mitigation, the counsel for the appellant made similar plea. A medical certificate of the friend was also put forward in support. The learned magistrate had made enquiry from counsel in connection with the matters put forward by counsel in mitigation. Ultimately, the learned magistrate rejected the suggestion that there was a genuine emergency which required the appellant to take over the wheel, so to speak.

5. The learned magistrate concluded that, and I quote:

"At best, from the appellant's point of view, he was driving for the sake of convenience and not because there was no alternative."

6. On behalf of the appellant, Mr TSE now complains that the learned magistrate had not held a Newton enquiry first before rejecting the mitigation. He also complains that the learned magistrate had rejected the mitigation without giving counsel the warning that such mitigation would not be accepted.

7. It is well established that a judge or a magistrate should hold a Newton enquiry to determine factual matters put forward in mitigation if such factual matters are relevant to the question of sentence and are disputed, or at least not accepted by the prosecution. The nature and the extent of the enquiry depends on the circumstances of the disputed or non-accepted facts.

8. If the disputed facts involve conflicting evidence from witnesses from both sides, a judge or a magistrate sitting alone will have to hear evidence from those witnesses before making any finding of facts. But very often, matters put forward in mitigation are within the knowledge of the defence only.

9. The prosecution, though not admitting those matters, is not in a position to challenge them as it is not privy to them. In such circumstances, it may be adequate for the judge to hear no evidence as such, but to listen to the submissions of counsel and then come to a conclusion, bearing in mind that the version of the defendant should, as far as possible, be accepted. But a judge or a magistrate is, of course, not obliged to accept everything put forward in mitigation.

10. In that regard, the Court of Appeal in R v CHUNG Kam-fai [1993] HKCLR 178 had laid down the proper approach. The relevant headnote of the case reads, and I quote:

"Where mitigation is advanced which is patently incredible the court need not indicate it has doubts about its correctness before rejecting it. Where, however, the mitigation is not patently incredible the court should indicate it is not prepared to accept it from the bar before rejecting it. If nothing is said in such circumstances defence counsel might unwittingly be misled into thinking that the mitigation advance would be accepted."

11. In respect of the submissions by Mr TSE, and in that regard I have studied the record of proceedings carefully, the learned magistrate has indeed, from the outset, indicated that he was not prepared to accept the mitigation put forward on behalf of the appellant.

12. The record shows that as soon as it was put forward that the appellant took over the driving of the car because the one originally driving it felt uncomfortable - indicating an emergency situation, although the word 'emergency' has not been used as such - the learned magistrate commented, "Well, it's only the defendant's allegation."

13. Such comment was then followed by a lengthy dialogue between counsel and the bench. Quite rightly, counsel then proceeded to try to convince the learned magistrate by drawing his attention to various salient features of the case. Counsel also produced a medical certificate and repeated the suggestion that there was this sudden uncomfortable feeling of the friend - again, in itself, indicating an emergency situation.

14. On many occasions, the learned magistrate had clearly indicated that he was not prepared to accept the mitigation put forward. He had expressed doubts about the exact problem that the friend of the appellant had. He commented that the illness of the friend was not something that suddenly manifested itself to affect his ability to drive. Such reaction or comment from the bench, in my view, clearly indicated that the learned magistrate was not prepared to accept that there was this emergency situation as suggested.

15. The learned magistrate could not, of course, state categorically that he was not accepting the mitigation lest he would be accused of having prejudged the matter. But he had, in my view, clearly indicated that he was not prepared to accept the mitigation - namely the suggestion that there was this emergency situation.

16. It would be, in those circumstances, for the defence to put forward whatever matters that they wish to advance in order to persuade the learned magistrate. To some extent, with respect, that was what counsel had done. Whether more could have been done or said, of course, is perhaps a matter of judgment and opinion.

17. There is, in my view, absolutely no basis for suggesting that the defence had been misled into believing that the mitigation had been accepted, with the result that they were not given the opportunity to call evidence to support the mitigation. In my view, the learned magistrate had dealt with the matter in an impeccable manner. He had indicated at the first opportunity that he was not prepared to accept the mitigation, the suggested emergency situation put forward. He had allowed counsel to present everything that counsel considered necessary. The learned magistrate then analysed the mitigation that was put before him, and on the matters put before the learned magistrate, he was entitled to conclude, as he did, that there was no emergency situation as alleged by the defence.

18. There is no valid basis for any complaint on the way the learned magistrate dealt with the question of sentence.

19. Be that as it may, I still have to consider whether the sentences imposed on the appellant were manifestly excessive or wrong in principle.

20. The offences of driving whilst disqualified and the offences of driving without insurance are, of course, very serious offences. Their seriousness lies in the possibility that victims in traffic accidents may be left without any compensation. The appellant had been disqualified on four previous occasions. He also had previous convictions of using a vehicle without insurance and driving whilst disqualified. Indeed, at the time of the present offence, he was under a suspended sentence for exactly the same offences.

21. The learned magistrate was right to say that the appellant's conduct was a flagrant breach of the court's order and that a prison sentence is inevitable. I am not persuaded that the total sentence of six months' imprisonment, including the activating of the two months' suspended sentence, in the light of the background of the case and that of the appellant is either manifestly excessive nor wrong in principle.

22. There is no basis for this court in its appellate jurisdiction to interfere with those sentences.

23. The appeal is therefore dismissed.