Lau Tung on v. The Queen

CACC000268/1981

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CRIMINAL APPEAL NO. 268 OF 1981

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Coram: Bewley, J.

Date of Judgment: 23rd April, 1981

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JUDGMENT

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(Oral judgment reduced to writing)

1. The appellant was convicted of dangerous driving on 18th November, 1980. He was fined and disqualified in respect of all vehicles for one year.

2. On 12th January and again on 2nd February 1981, the appellant, when driving a goods vehicle, was issued with tickets for minor traffic violations. After the fines were paid, the disqualification came to light.

3. He pleaded guilty to 2 charges of driving whilst disqualified and to 2 charges of driving without 3rd party insurance. He was sentenced to a total of 10 months' imprisonment and disqualified for a further 3 years. On review the prison sentence was reduced to 5 months. Consecutive sentences of 2 and 3 months respectively were passed in respect of the charges of driving whilst disqualified. The same sentences in respect of the corresponding insurance charges were made concurrent. The order of disqualification was not altered.

4. The appellant is a professional lorry driver. He is 24 and his wife is shortly expecting their first child. He earned $3,000 per month as a driven but now works on a construction site. He and his mother have to make mortgage payments of $2,900 per month and there is a danger that they will not be able to keep up the instalments.

5. On the other side of the coin is an appelling record of traffic offences. Apart from the dangerous driving case, the appellant has 4 convictions for careless driving, 3 for speeding, 4 for disobeying traffic lights and others, all since 1978.

6. Further evidence of his contempt for the traffic laws is his double violation of the disqualification order.

7. For these reasons the learned magistrate felt unable to deal with the matter by way of fine. By virtue of s.25 of the Road Traffic Ordinance, Cap. 220, a prison sentence of at least one month became inevitable. He felt - and I agree with him - that only prison would deter the appellant from continuing to drive.

8. I think, however, that the term is too long. The maximum sentence for driving whilst disqualified is 6 months and that for driving without 3rd party insurance 12 months. It is, nevertheless, clear that a custodial sentence would not have been passed for the latter offence alone.

9. Several cases have been cited to me where 6 months' imprisonment have been reduced to 3 months, including 2 where, due to the personal circumstances of the appellant, the sentence was suspended. See C.A. 516/79 and C.A. 883/80.

10. The maximum setnence of 6 months must be reserved for the worst cases and for second and subsequent offenders. The proper term, in this case, bearing in mind the appellant's record and the 2 separate offences of driving whilst disqualified, is in my judgment 3 months' imprisonment. I would impose this sentence in respect of each of the 4 offences and order that they run concurrently.

11. The remaining question is whether or not the sentence should be suspended.

12. It is a fact that many drivers in Hong Kong do not realise the gravity of this offence. They do not know that a prison sentence usually follows conviction. They may not even know that they are uninsured. It is only when they are in the appellant's present situation that it sinks in.

13. The appellant is now on bail, but he has already served 19 days behind bars. Is this a sufficient deterrent? Counsel informs the Court that the appellant is now truly remorseful. He certainly looks as though he is. It is a borderline case, but, having regard to the mitigating factors that undoubtedly exist, coupled with the fact that he has been in prison, I conclude that there is little point in returning him there for a few more weeks.

14. I therefore order that the sentence of 3 months be suspended for 3 years. The appellant will realise that, if he is caught driving whilst disqualified during this period, the sentence will be activated. The order of disqualification will remain unaltered.

Representation:

Mr. Y.C. Mok (Cheung & Tong) for appellant

Mr. P.A. Nicholas, C.C., for respondent