Michael Anthony Remedios v. The Queen

Case No.CACC 232/1975

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000232/1975

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 232 OF 1975

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BETWEEN
	MICHAEL ANTHONY REMEDIOS	Appellant
	and
	THE QUEEN	Respondent

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Coram: Huggins, J.

Date of Judgment: 16th April 1975.

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JUDGMENT

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1. This is an appeal against sentence in respect of an offence of driving in excess of a statutory speed limit. The Appellant was charged with exceeding the 30 m.p.h. speed limit on Princess Margaret Road, Kowloon. It is recorded

"Defendant pleads guilty".

This is not in accordance with s.19 of the Magistrates Ordinance, which requires that the precise words used by the defendant shall be recorded. However, no point is taken as to that: the Appellant concedes that he pleaded Guilty, and he is appealing against a sentence of a fine of $500 and disqualification from holding a driving licence for four months.

2. The facts which were admitted were that at about 8:27 o'clock at night on 16th September last year he drove at 60 m.p.h. on this restricted road. It is a main road which is divided in the middle by a barrier and in which the traffic in each direction has three lanes. The Appellant, according to the picture which was taken by the police at the time, was in the middle lane.

3. The learned magistrate took a very serious view of this offence but he said that he could not treat it as a first offence. That was because the Appellant had, over three years ago, been convicted of an offence of exceeding the speed limit - it was in 1971. The magistrate mentioned in his Reasons that s.23(1) of the Road Traffic Ordinance gave him a general discretionary power to disqualify for this offence and he continued:

"But there is a proviso to this section which provides that 'if the Magistrate thinks fit then

(a)

he may limit the disqualification to the same class of vehicle AND (my capitals) a first conviction ...... for (speeding) or a second conviction (following three or more years after the first) ...... shall not render the (defendant) liable to be disqualified".

He then points out that there are allegedly two schools of thought as to the manner in which this provision shall be interpreted. With respect to him I have some difficulty in understanding how there can be more than one interpretation, and I think the error creeps in because he has wrongly set out the terms of the provisos. The provisos read:

"Provided that -

	(a)	if the court or magistrate thinks fit, any disqualification imposed under this section may be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed; and
	(b)	a first conviction for driving a motor vehicle on a road at a speed exceeding a speed limit imposed by any enactment in respect of such road or in respect of that type of motor vehicle, or a second such conviction the date whereof falls more than three years after the date of the first conviction, shall not render the person convicted liable to be disqualified from holding or obtaining a licence."

The learned magistrate placed great weight on the words "if the magistrate thinks fit" but it will be seen that they occur only in the paragraph (a) and not in paragraph (b). He has referred to "a proviso" and I think he is perhaps more correct there than he appreciated. When one looks at paragraph (a) it is not strictly a proviso at all: it is not a condition on the exercise of the magistrate's discretion but an extension of the discretion. The only true proviso is that in paragraph (b). However, the draftsman has set out both paragraphs as though they were provisos. As I read these paragraphs they relate to two separate and distinct matters and we are concerned here with paragraph (b) only. There the magistrate has no discretion. This is a true proviso - a condition which must be fulfilled before the general discretion to disqualify arises.

4. This Appellant had indeed a previous conviction. Therefore, he was not to be treated as a "first offender", but he was nevertheless to be treated as a second offender whose first conviction had occurred more than three years previously. In those circumstances, as the law now stands, there was no power to order disqualification and the order witch was made as to disqualification must be quashed.

5. The learned magistrate clearly, as I say, regarded this as a serious offence and I cannot but agree that for anybody to drive even a vehicle designed for very high speed and, as is conceded by the Crown, equipped with appropriate braking mechanisms is driving in a manner which is liable to cause danger to the public even if it does not cause danger. The photograph which is now before me shows what was conceded, that the traffic was not light: there were other cars in the vicinity, the Appellant was in fact in the middle lane and there were other cars in the outer lane. For him to be travelling at 60 m.p.h. in those circumstances was at best dangerous and probably reckless and the learned magistrate is right when he says that the Appellant was perhaps fortunate that he was not charged with a more serious offence which would have entitled the magistrate to impose disqualification. In all the circumstances I do not think it would be right for me to interfere with the proper exercise of the learned magistrate's discretion in setting the fine at $500.

6. Therefore this appeal is allowed to the extent only that the order for suspension or disqualification is quashed.

16th April 1975.

Representation: