Shik King-sley v. The Queen

CACC000246/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.246 OF 1971

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Coram: Rigby, C.J.

Date of Judgment: 15th May, 1971.

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JUDGMENT

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1. The appellant pleaded guilty before the magistrate to a charge of exceeding the speed limit within a restricted area; he was said to be driving along the Kwai Chung Road near Castle Peak Road at a speed of 53 m.p.h when the speed limit in that area was restricted to 30 m.p.h. Section 15(2) of the Road Traffic Ordinance enacts:-

2. Between August 1950 and December 1954, the appellant has had five convictions for exceeding the speed limit, in respect of which fines varying between $15 and $50 have been imposed. He then had a clear record of 12 years between December 1954 until December 1966, when he was again convicted and fined the sum of $30. In November 1968 he was again convicted and fined $20. Unhappily for him, his next conviction - on 25th February, 1971 - took place within the period of three years since the last conviction recorded against him on 9th November, 1968. In the circumstances, the magistrate was unable to make use of the proviso to Section 15(2) and had no alternative but to disqualify the appellant from driving private cars for a period of not less than six months. It is against that order for disqualification that the appellant now appeals. Section 16(1) of the Road Traffic Ordinance provides that:-

"16(1) The provisions of any enactment imposing a speed limit on motor vehicles shall not apply to any vehicle on an occasion when it is being used for fire brigade, ambulance, preventive service or police purposes, if compliance with those provisions would be likely to hinder the use of the vehicle on that occasion for any of those purposes."

3. It would appear that the appellant is, by occupation, a marketing supervisor employed by a firm dealing, inter alia, with the distribution of pharmaceutical products. It is said that on this particular occasion the appellant had been asked by a doctor to deliver to him at his surgery a particular antibiotic which was urgently required for use for a patient. It is further said that it was in order to ensure the urgent delivery of that antibiotic that the appellant was driving at this excessive speed on that occasion. Mr. Smart, who appears for the appellant, has sought to put forward the ingenious argument that the appellant, in effect, was using his vehicle on this occasion for ambulance purposes and that, therefore, he ought to be excused from the rigour of the law and that no order for disqualification should have been imposed in those circumstances. I should perhaps have stated at an earlier stage that this argument was advanced by Mr. Smart before the learned magistrate in an application earlier made to him for a review of the conviction and order for disqualification. Mr. Smart then applied for leave to call the defendant (as he then was) in order to give evidence in support of his argument. In refusing that application, the learned magistrate said that even if evidence was given by the defendant to support his allegation that he was exceeding the speed limit for the purpose of delivery to a doctor of drugs urgently required by him he, the magistrate, would have been unable to hold, as a matter of law, that the defendant was using his vehicle for "ambulance purposes" within the meaning of Section 16. It is from that view taken by the learned magistrate that the matter now comes before this court.

4. For my part, I can see no valid reason for taking a view contrary to that formed by the magistrate. An ambulance, according to the Oxford Dictionary, is a vehicle for conveying wounded persons. Mr. Wilkinson, in his standard book "Road Traffic Offences"⁽¹⁾ at p.177 expresses the view that

"a car taking a casualty to hospital in an urgent case is being used for ambulance purposes but it is doubtful if a doctor hurrying to an urgent case is using his car for ambulance purposes;"

I would respectfully agree with that view. But if it is correct that a doctor hurrying to an urgent case cannot be said to be using his car for ambulance purposes, still less can it be said that a person carrying antibiotics in his car for use by a doctor, however urgent that use may be, is using his car for ambulance purposes. In my judgment the view taken by the learned magistrate was correct and assuming it to be true that the appellant on this occasion was exceeding the speed limit for the express purpose of conveying to a doctor antibiotics urgently required by him, that would not bring the appellant within Section 16 for the purpose of providing a defence to the charge of exceeding the speed limit.

5. Mr. Boy, Crown Counsel, has pointed out that in his view the appeal against sentence is misconceived in that if the appellant was able to bring himself within Section 16 that would have provided a defence to the charge itself of exceeding the speed limit and not simply a matter to be urged as a plea in mitigation. I have no doubt that Mr. Boy is correct in this contention.

6. For my part, I must confess to a certain amount of sympathy for the appellant in the predicament in which he now finds himself. A period of six months disqualification from driving is a fairly drastic penalty. It may well be that it is not generally known among members of the public that a third conviction within a period of three years for exceeding a speed limit requires a mandatory period of six months disqualification. In this instance, if upon the appellant's conviction in 1968 for a second offence of exceeding the speed limit, the learned magistrate had then ordered his licence to be endorsed, the full significance of a third conviction within a period of three years would have been forcibly brought to the attention of the appellant. I would suggest for the consideration of magistrates that where a driver is brought before them upon a second conviction for exceeding a speed limit they should make it abundantly clear to the offender that a further conviction within a period of three years will render six months disqualification mandatory and, for the purpose of impressing the danger upon the mind of the offender, the magistrate should order the particulars of the second conviction to be endorsed upon the offender's driving licence.

7. I am satisfied that this appeal must be dismissed.

Representation:

J.N. Smart for Appellant.

Boy, P.C.C. for Crown/Respondent.

(1) (1965) 5th Edition.