Ng Shiu Lun v. Attorney General

HCMA000146/1984

BETWEEN:-

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Coram: The Honourable Mr. Justice Jones in Court.

Date of hearing: 27 April 1984

Date of delivery of judgment: 27 April 1984

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JUDGMENT

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1. The appellant pleaded guilty before a magistrate at North Kowloon Magistrates Court on the 22nd February 1984 that he drove a private car on a restricted road on the 15th November 1983 at a speed exceeding 30 m.p.h. contrary to Section 15(1)(a) of the Road Traffic Ordinance Cap. 220. The appellant's speed was 64 m.p.h. He was fined $500, disqualified from holding or obtaining a driving licence for 6 months, and ordered to resit all tests for his driving licence. The appellant appeals against sentence.

2. The magistrate imposed the period of disqualification pursuant to Section 15(2) of the Ordinance on the grounds that it was the appellant's third speeding conviction within 3 years. The relevant part of Section 15(2) reads:-

"          A person convicted of a third or subsequent offence under this section or under any repealed enactment relating to the speed at which any vehicle shall be driven on any road shall be disqualified from holding or obtaining a driving licence for a period of not less than 6 months:

..................................................".

However, I am told that the appellant's previous traffic. offences were dealt with by fixed penalty notices under the Fixed Penalty (Criminal Proceedings) Ordinance. Mr. Bruce who appeared for the Crown concedes that the fixed penalty notices on which payment has been made should not have been taken into account by the magistrate when he came to determine sentence see Sin Yiu-kong v. R (1979) HKLR 294. In that case it was held that the payment of a fixed penalty offence does not amount to a conviction nor is it a prima facie admission that an offence had been committed, Leonard J. in the course of his judgment at. page 296 said:-

"          All this persuades me that all served with such a notice are, in default of its withdrawal, entitled by payment of the amount stipulated to regard the matter as closed and as closed for all purposes. If payment is not made the matter is at large and the discretion of the magistrate as to penalty is unfettered save by his judicial discretion. It follows in my view that he should not have had his attention drawn to the "citations" or taken them into account. These certainly do not show that the appellant has "offended against the traffic laws" as the learned magistrate thought. At worst. they show that a police officer, "has had reason to believe" he has so offended......................................................................................... By payment of a fixed penalty a driver admits nothing. Indeed there is nothing which he could admit for he has not been charged with anything. There is no question of the driver avoiding a conviction "by a quirk of procedure". If he refuses to pay the fixed penalty he will be charged. The computer will see to that. But he may plead not guilty, and the Crown may fail in the obligation, incurred by his plea of not guilty, of proving his guilt beyond reasonable doubt. I therefore hold that the learned magistrate was wrong to take them into account.".

3. As a result the appellant in the instant case had to be regarded as a first offender. The mandatory provision for disqualification did not therefore apply.

4. The magistrate imposed the order to resit all driving tests having regard to the appellant's previous offences and the excessive speed at which he was travelling. I assume that he did so by invoking the provisions of Regulation 10(6) of the Road Traffic (Driving Licences) Regulations which provides:-

"          A court or magistrate which makes an order under section 23 of the Ordinance disqualifying a person from holding or obtaining a driving licence to drive any motor vehicle or motor vehicles of any class may in addition order that, after the expiry of the period of disqualification, such person shall be disqualified from holding or obtaining a driving licence other than a provisional licence to drive motor vehicles of any class until he has passed a driving test in respect of vehicles of such class.".

5. Whether or not he exercised power under this regulation, an order for disqualification until the passing of a test should not be imposed as part of the penalty for the offence for the provision is not punitive see R v. Donnelly (1975) R.T.R. 243, R v. Banks (John) (1978) R.T.R. 535. The provision should be used where a person is shown to be inexperienced, old, infirm, or incompetent. None of these circumstances applied in this case.

6. Treating the appellant as a first offender the facts did not warrant the imposition of a period of disqualification. It necessarily follows that the magistrate was wrong to order the appellant to resit all tests for his driving licence. However, the fine of $500 was appropriate. Accordingly the orders of disqualification and to resit all driving tests will be discharged. The appeal is allowed to this extent.

Representation:

Mr. J. Lee (O'cock & Day) for Appellant.

Mr. A.A. Bruce (Legal Department) for Respondent.