HKSAR v. Chan Ho Bun

HCMA001160/2003

HCMA1160/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1160 OF 2003

(ON APPEAL FROM TWCC 1828 OF 2003)

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Coram: Hon Jackson J in Court

Date of Hearing: 4 February 2004

Date of Judgment: 4 February 2004

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J U D G M E N T

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1.On 7 November 2003 the appellant was convicted upon his own plea at Tsuen Wan Magistracy of the following two offences committed on 21 May :

(1)	Permitting a vehicle to be driven by a person not holding a valid licence, contrary to sections 42(3) and (4) of the Road Traffic Ordinance, Cap. 374, Laws of Hong Kong and
(2)	Permitting a person to use that same vehicle without third party insurance, contrary to sections 4(1) and (2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272, Laws of Hong Kong.

2.He was fined $1,000 in respect of each offence and, in addition, for the second offence he was disqualified from holding or obtaining a driving licence for a period of 12 months. It is against that period of disqualification which he appeals, suggesting that it was 'too severe'. On 4 February I dismissed the appeal and said that I would give reasons in writing in due course. These are my reasons.

3.Section 4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance reads as follows :

"	(1)	Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person or that other person, as the case may be, such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance.
	(2)	(a)	If a person acts in contravention of this section, he shall be liable to a fine of $10000 and to imprisonment for 12 months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than 12 months nor more than 3 years from the date of conviction.
		(b)	A person disqualified by virtue of a conviction under this section or of an order made thereunder for holding or obtaining a licence shall, for the purposes of the Road Traffic Ordinance (Cap. 374), be deemed to be disqualified by virtue of a conviction under the provisions of that Ordinance."

4.Thus it is quite apparent that if a person convicted of such an offence seeks to avoid disqualification absolutely or to be disqualified for a period of less than 12 months, he must persuade the magistrate that there exist 'special reasons'.

5.The magistrate clearly approached this matter with great care. The facts of the offence, the mitigation put forward on behalf of the appellant, and the magistrate's conclusions were recited fully in his "Reasons for Sentence" the relevant parts of which I set out hereunder :

"The brief facts were read and explained to the [appellant] and he confirmed the same were correct. I therefore convicted him. The facts stated, inter alia, that D1 had been stopped for speeding on the Lantau Link of the Airport bound highway and it was found that he had been disqualified at the time from driving under the points system. The [appellant] was later discovered to be the owner of the car and he had lent the car to D1. The [appellant] had a clear record.

...

Defence counsel sought to persuade [me] without calling any evidence there were special reasons for not disqualifying the [appellant]. He said the [appellant] had told the police under caution that

(a)	He did not physically check D1's licence before he let him drive.
(b)	He knew D1 had a driving licence but he did not know that D1 had been disqualified from driving.
(c)	He had known D1 for six to seven years.
(d)	He knew that D1 drove and he knew he was a vehicle owner.
(e)	D1 had never told him he had been disqualified.
(f)	D1 had asked to borrow the car because he said his own car was not big enough to carry his (D1's) luggage to the airport.
(g)	Had he known that D1 was disqualified at the time he would not have lent him the car.

I found that I could accept most of these facts as true. ... I found, however, I did not accept that the [appellant] knew (by reason of any physical check) that D1 had a valid driving licence. I found from the evidence I accepted, that the [appellant] only believed D1 had a licence as a result of what he had previously observed of D1.

...

I found from the facts that I accepted that the [appellant] had permitted D1 to use his car on the wrongful assumption that D1 had a valid driving licence at the material time. I found he had made no enquiries of any type at anytime whilst he knew D1 to confirm whether his assumption was the true position.

I noted the burden was upon the [appellant] to prove the special reason on the balance of probabilities. I further noted the court should adopt a two stage process in such proceedings by -

(a)	determining if a special reason existed, and if one did;
(b)	whether the court in exercising its discretion should not disqualify the [appellant], or whether the court should disqualify him for less than 12 months.

I considered the definition of a 'special reason' as stated in R v Crossen [1939] NI 106 as approved in Whittal v Kirby [1946] 2 All ER 552 DC, and interpreted by R v Wickens, 42 Cr. Appellant. R. 236 CCA. From this definition four points emerged: -

(a) It must be a mitigating or extenuating circumstance;

(b) It must not amount in law to a defence;

(c) It must be directly connected with the commission of the offence;

(d) It must be a matter, which the court ought properly take into account.

..."

6.After consideration of a number of authorities the magistrate continued :

"In the instant case, I found the [appellant] had taken no steps of any kind to check if D1 had a valid licence and thus did not have reasonable grounds for his belief. I found that D1 should have been carrying his driving licence on him, as is required by law, when the car was lent to him, and therefore a confirmation of D1's driving status at this time would have been a very quick and easy task. If D1 had been disqualified he would have been unable to produce his driving licence as this would have already been surrendered to the court. Such a situation would have then put the [appellant] on notice to make a closer investigation of D1's driving status before he could have an honest belief on reasonable grounds. I did not find that the mere fact the [appellant] knew D2 had a car and drove his car, and what happened at the time of the lending was a special reason, as I found that if such had mislead him, it had been through his own negligence in failing to clarify in any way his belief.

I therefore found there was no special reason proved ... to allow me to remove or reduce the mandatory disqualification."

7.I am unable to say that the magistrate fell, in any way, into error in determining the case in the way that he did. Indeed I respectfully agree with his conclusions and accordingly I dismissed this appeal albeit expressing at that time to the appellant some sympathy for the situation, or predicament, in which he found himself.

8.Whilst it may be irksome, or perhaps in some circumstances embarrassing, for an owner to question his friend in order to ascertain if he has a current driving licence before giving him permission to borrow and drive his car, that he must do. Indeed that is the very least that he must do if he is to show that there is a 'special reason' why he should not be disqualified in the event that that friend has, in fact, no driving licence. It seems to me that the seriousness of the offence and of its possible consequences demand nothing less. A mere assumption, albeit reasonably founded as it was in this case, will not suffice.

Representation:

Mr P.K. Madigan, SGC of the Department for Justice, for the Respondent

The Appellant in person