Lau Kwong Ping v. The Queen

CACC000238/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 238 OF 1969

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Coram: Huggins, J.

Date of Judgment: 29 April 1969

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JUDGMENT

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Huggins, J:

1. The point which arises in this case is a short one but an important one. The appellant was charged under s.27 of the Road Traffic Ordinance with failing to report a traffic accident. When driving his motor car he was in collision with a pedestrian and the pedestrian received very slight injuries. The appellant stopped, had some conversation with the pedestrian and apparently paid him some compensation for the injury which he had suffered. Thereafter, thinking apparently that the matter was settled, he failed to comply with his duty under this section to make a report to the police. The pedestrian subsequently made a report and as a result the appellant was charged with this offence. The appellant, not unnaturally, pleaded guilty. He was fined $20 and an order for disqualification was made against him.

2. It was submitted to the learned magistrate that although under s.27 there was a mandatory disqualification nevertheless he had power to limit the disqualification to a particular class of vehicles by virtue of proviso (a) to s.23(1). The magistrate came to the conclusion that there was no power to make this limitation. Mr. Comber, on behalf of the appellant, has submitted that the learned magistrate misdirected himself when he said that he had no power to limit the disqualification and he has further argued that even if that be wrong then this court should interfere because the sentence for such a comparatively minor breach of duty was manifestly excessive and he has suggested that it would not be inappropriate for me to substitute an order under s.36 of the Magistrates Ordinance granting an absolute discharge with no conviction recorded, upon which no mandatory disqualification would follow.

3. I have come to the conclusion that the first submission on behalf of the appellant is correct. I was referred to the decision in Fok Wai v. Peg.⁽¹⁾, where it was held that upon a conviction under s.4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance 1951 the magistrate had power to limit the disqualification although the relative provision making it mandatory upon a conviction to impose disqualification gave no power to limit the disqualification to a particular class of vehicle. It was held by the learned judge in that case that although there was no express power of limitation in that particular Ordinance nevertheless the power of limitation contained in the equivalent then in force of s.23(1) of our Road Traffic Ordinance was applicable. In my view that decision is of no assistance to me in the present case. Counsel for the Crown was, I think, disposed to suggest that the case was wrongly decided and for my part I would certainly wish to keep open that possibility.

4. The question in the present case really comes to this, whether when s.27(3) of the Road Traffic Ordinance says that a person convicted of an offence to which para.(a) of subsection 2 applies shall be disqualified from holding or obtaining a driving licence for not less than twelve months that is what I might describe as "the enabling section" under which the disqualification is imposed. I say this because the words of s.23(1) are as follows:

"Without prejudice to any other penalty, any court or magistrate before whom a person is convicted of any offence under this Ordinance or under regulations made thereunder in connexion with the driving of a motor vehicle may order him to be disqualified from holding or obtaining a driving licence ........... and where any provision of this Ordinance requires him to be so disqualified for a minimum period, shall order him to be disqualified for a period which is not less than that minimum period."

(The comma after the words "minimum period" appears to have been inserted in error). Mr. Comber has submitted that s.27(3) is not what I have called an enabling section but is merely "one of those provisions of this Ordinance (which) requires him to be so disqualified". Putting it in another way, he says that the disqualification which was imposed by the learned magistrate in this case was imposed in the exercise of power conferred by s.23. He says that if that be so then provision (a) to subsection (1) of that section applies and the magistrate did have power to limit the disqualification to the same class or description of vehicle, and he argues further that if s.27(3) is not one of that kind of provision referred to in s.23(1) then the words which I have quoted from that section are meaningless. I think he is right. I am satisfied that whatever may be the position in relation to convictions for offences under the Motor Vehicles Insurance (Third Party Risks) Ordinance any conviction for an offence under s.27 is one of those for which disqualification is to be imposed under s.23(1). It has been argued by Mr. Wong for the Crown that this cannot be so because s.23(1) relates to offences under the Ordinance or under the Regulations "in connexion with the driving of a motor vehicle" and he says that failing to report an accident is not "in connexion with" the driving of a motor vehicle. The answer to that is that the opening words of s.27(1) indicate quite clearly that it is the driver of the vehicle who is to make a report and if the person charged is not a driver then there can be no conviction. This suggests to me that the Legislature considered the reporting of an accident to be connected with the driving of the vehicle owing to the presence of which the accident occurred.

5. For these reasons I think the learned magistrate was wrong and there was power to make the limitation which is asked for. Equally I am satisfied - and I do not think that it is necessary here for me to remit this case to the learned magistrate for further consideration - that the case was of such a nature that it was proper to make the limitation which was sought. Indeed I have seriously considered whether it would not be right to accede to the further argument which Mr. Comber has put before me. However, I think that it is clear that the Legislature intended to ensure compliance with this section by the imposition of a heavy penalty and that the court should be slow to take any course which might interfere with the obtaining of the result which was manifestly intended. Therefore I shall not interfere further and I merely allow the appeal to the extent of limiting the disqualification to the same class of vehicle as the vehicle which the appellant was driving at the time of the accident.

6. I would, however, add this, that there is power under the Ordinance for the driver to make application before the expiry of the period of disqualification and for the magistrate to whom application is made to remove the disqualification. Without in any way trying to prejudge the matter or influence the magistrate who may be called upon to hear such an application I think this is eminently a case where the appellant might be advised to make application before the full period has expired.

29th April, 1969.

Representation:

Judgment pronounced by Huggins J. in Court

(1) 1959 H.K.L.R. 168.