Lau Chi-pui v. The Queen

HCMP000005/1980

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Coram: Cons, J.

Date of Judgment:

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JUDGMENT

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1. This was an application to vary an order for bail made by a magistrate and I dealt with it in chambers. However, I have decided, with the consent of all concerned, to record openly the reasons for my decision.

2. Mr. Lau, the applicant, is a professional public light bus driver. He has been so for four years now. On 26th September last year one of his passengers fell while she was alighting from his bus. It was not obvious what injuries, if any, she actually received, but she complained immediately of feeling unwell and, at her request, Mr. Lau drove her to the hospital. There he reported what had happened to the constable on duty in Casualty. As a result, the police laid an information against him alleging that he failed to take all reasonable precautions to ensure the safety of a passenger alighting from his vehicle. That is an offence contrary to regulation 11(d) of the Road Traffic (Public Omnibus, Public Light Bus and Public Car) Regulations. The maximum penalty is a fine of $500. There is no provision for imprisonment.

3. In due course a summons was issued. It required Mr. Lau to appear before the magistrate on 18th December. He did so. He was asked to plead to the information and, although he intended to plead guilty, he put his answer in such a way that it was not consistent with guilt. The learned magistrate, therefore, and very properly, entered a plea of not guilty. And he adjourned the information to be tried on 12th February this year. That was, roughly speaking, two months ahead.

4. Then the magistrate required that Mr. Lau should put up cash bail. He suggested $500 but Mr. Lau had no more than $400 with him. The magistrate accepted that and Mr. Lau was taken to the cells of the magistracy where he had to wait for two hours until the shroff had time to deal with the necessary papers.

5. It is true the magistrate had jurisdiction to require bail in the circumstances: section 20(3) Magistrates Ordinance, Cap. 227. But it is difficult to see why it was necessary. Mr. Lau had obeyed the summons in the first instance and I have been informed of nothing which indicates he would not have obeyed the order to appear for the trial itself. And if he had not, a warrant could have been issued for his arrest.

6. Then the magistrate went further. He imposed two conditions upon the bail, that Mr. Lau should surrender his driving licence and that he should not drive any motor vehicle between that date and the date of trial. Mr. Lau was not represented at the time and fearing that he would otherwise be remanded in jail custody he agreed to those conditions.

7. Again it is true that if Mr. Lau is eventually convicted of this offence he may be disqualified under section 23 of the Road Traffic Ordinance, Cap. 220. It seems unlikely, for he has only two previous convictions, both apparently for only minor traffic offences. Be that as it may, he has not yet been convicted. And to take away a man's licence and thus deprive him of his livelihood before he is convicted is a course which ought only to be taken in the most exceptional of circumstances, and for my part I would add, with reasons given and recorded.

8. Crown Counsel did not seek to uphold the order of the magistrate. As far as he was aware the Crown had not sought it in the first place. I could find nothing to justify it and accordingly set it aside.

Representation:

Miss Esther Toh (Director of Legal Aid) for applicant.

Conyngham, Counsel for Crown for respondent.