The Queen v. Tsang Kei-bun

HCMA000862/1990

Magistracy Appeal No. 862 of 1990

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HEADNOTE

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OVERLOADING VEHICLE - PRISON SENTENCE WRONG IN PRINCIPLE FOR SECOND OFFENDER - FIXED PENALTY NOTICES NOT TO BE BROUGHT TO COURT'S ATTENTION.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 862 OF 1990

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BETWEEN

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Coram: Hon . Bewley, J. in Court

Date of hearing: 29 August 1990

Date of delivery of judgment: 29 August 1990

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JUDGMENT

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1. The appellant pleaded guilty to driving an overloaded goods vehicle, contrary to Regulations 54(1) and 61(1) of the Road Traffic (Traffic Control) Regulations, Cap.374. The permitted weight of 11 tonnes was exceeded by 5.15 tonnes. He was sentenced to one month imprisonment, suspended for 18 months, and fined $7,500.00.

2. The magistrate noted that the appellant had two similar convictions. In fact his second conviction was two days after the present offence. He should therefore have been treated as a second offender.

3. The magistrate also noted that the appellant had 11 fixed penalty tickets for the same offence, although he does not say what, if any weight, he attached to them.

4. It is well-established that fixed penalty notices should not be drawn to the Court's attention, nor taken into account for the purposes of sentencing. See R. v. Sin Yiu-kong (1979] HKLR 294.

5. I am satsified that a prison sentence is wrong in principle in respect of a second offender. The appeal is therefore allowed and the prison sentence quashed.

Representation:

Mr S. Lee, Crown Counsel, for Respondent

Ms E. Robertson inst'd by M/s. So & Co. for Appellant