The Queen v. Ho Kam Chuen

HCMA000151/1985

HeadNote

Road Traffic Ordinance, Cap. 374 - Mandatory disqualification on a person convicted of a third or subsequent speeding offence under Section 41(2) - Disqualification subject to discretionary limitation to the driving of one or some or all classes of vehicle under Section 69(2)(b) - Where disqualification is for period of not less than 6 months, Section 70(1) becomes operative and the order requiring the convicted driver to be re-tested inevitably follows the disqualification in regard to the type or types of vehicle involved - English laws distinguished - "R v. Donnelly" (1975) CA 243 and "R v. Bank" (1978) CA 545 not applicable.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 151 of 1985

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BETWEEN

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Coram: Deputy Judge H. Wong in Court

Date of hearing: 8 March 1985

Date of Delivery of Judgment: 30 March 1985

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J U D G M E N T

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1. The Appellant appeared in a magistrate's court on 14th January 1985 and pleaded guilty to the charge that on 22nd September 1984 he drove a private car on Tuen Mun Road at a speed exceeding 70 kilometers per hour contrary to Section 41(1)(a) of the Road Traffic Ordinance, Cap. 374 (referred to as the Ordinance). His speed then was 88 kilometers per hour.

2. Before passing sentence the learned magistrate took into account the Appellant's admission of 3 previous similar convictions on 2nd March 1982, 6th April 1982 and 24th May 1983 for which respective fines of $300.00, $100.00 and $180.00 were imposed and disqualification of 6 months under Section 15(2) of the old law (Road Traffic Ordinance, Cap. 220) in relation to the conviction of 24th May 1983 was ordered. For the Appellant's fourth speeding offence within a period of 3 years from the first, the learned magistrate (a) fined the Appellant $750.00, (b) under Section 41(2) of the Ordinance disqualified him from driving all types of vehicle for 12 months and (c) pursuant to Section 70(1) of the Ordinance ordered that disqualification to stand until the Appellant had, after the date of the order, passed the test of competence to drive. The Appellant appeals against sentence.

3. At the beginning of the hearing of the appeal the Appellant's counsel made it known that he had no complaint about the fine. However, he argued that the offence involved was speeding simpliciter and not on account of bad manoeuvring of the vehicle as in careless driving, so that disqualification ought to be limited to the driving of private car. By way of reinforcing that point he added that that limitation would enable the Appellant to continue earning a living as a driver of another type of vehicle. The second limb of his submission was that the order requiring the Appellant to be re-tested on the competence to drive was wrong in principle and even if justified, such order, for the same reason as in regard to disqualification, should be confined to private car.

4. The Road Traffic Ordinance Cap. 374, which repealed and replaced Road Traffic Ordinance Cap. 220, came into operation on 25th August 1984 and its scope includes:

a)Section 41(2) - " A person who is convicted of a third or subsequent offence under this section or under section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of not less than 12 months.

Provided that when a period of not less than 3 years has elapsed since his last previous conviction for such an offence, the court may deal with the offence as a first offence."

b)Section 69(2) - " A disqualification-

(a)    imposed in respect of an offence specified in subsection (1)(f), shall be limited to the driving of a taxi; and

(b)    imposed in respect of any other offence may, if the court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed."

5. In his statement of findings the learned magistrate duly considered the effect of the above two sections on the Appellant and expressed his views as follows:

"Section 23 of Cap. 220 permitted the limitation of a disqualification to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed. That power is repeated in section 69(2)(b) of Cap. 374. That power has been used in the past to enable the professional driver to remain on the road where his employment depends upon his driving licence." .......... "I appreciated when making my orders the Appellant might well find them hard. Cap. 374 has substantially increased penalties. Such in my view is not a reason to resort to the provisions of section 69(2)(b) of Cap. 374 to mitigate section 41(2) or section 70(1) except in the clearest possible cases. Such might be the emergency rushing of an injured person to hospital or overwhelming personal needs, for example the partially paralysed person who would be immobile but for a vehicle or such similar circumstances where it can be said the total disqualification would not simply be hard but disproportionate to the offence or savage according to the accepted standards of society."

6. It can be seen that the learned magistrate was fully alive to the discretionary provision being available to him but had decided against exercising it. As a general rule an appellate court is slow in interfering with the discretion of an inferior court unless its exercise or the lack of it would result in such patent injustice that a reasonable tribunal ought to interfere. In the present case there is no valid ground for this court to so interfere. The magistrate's decision on disqualification is therefore upheld.

7. The provision on re-testing a convicted driver was unknown to Hong Kong until the implementation of the Ordinance on 25th August 1984, although that penalty had long been in the English statute book and at least since the enforcement of the Road Traffic Act 1972. A comparison of the laws of England and the corresponding local ones in relation to this issue may be of assistance to the understanding of the meaning and application of the legal requirement concerned.

8. In Section 93(7) of the English Act the word "may" is used and consequently implies a discretionary power. The favourable exercise of that discretion can be found in "R v. Donnelly" (1975) C.A. 243, headnote of which reads:

"Where, therefore, the appellant, who had an excellent driving record, pleaded guilty to driving with blood-alcohol concentration above the prescribed limit and was fined and disqualified and an order was made under section 93(7) for him to pass a test of competence before he began to drive again, and he appealed against sentence:

Held that the order under section 93(7) would be quashed, for there was no reason in the circumstances to question his competence to drive."

9. In his judgment at p. 245 Talbot, J. said:

"Looking through the facts of the matter, this court can find no reason why the court should have ordered such a test to be taken. The object of the enactment of section 93(7) of the Road Traffic Act 1972 is to test drivers who may have become disqualified and who may for some reason show some lack of competence or that some efficiency relating to their driving should be further tested."

10. The principle enunciated in Donnelly's case was followed in "R v. Bank" (1978) C.A. 545 in which it was held:

"(2) That the order that a driver convicted of a motoring offence should take a test of competence to drive under section 93(7) of the Road Traffic Act 1972 was appropriate only in cases of age or infirmity or where the circumstances of the offence were such that the offending driver was not a competent driver; and, that, since there was no reason to suppose that the appellant was incompetent to drive, the order under section 93(7) would be quashed. Per curiam Section 93(7) of the Road Traffic Act 1972 is not designed to be punitive."

11. It is obvious from the above table that Section 70(2) of the Ordinance has its counterpart in Section 93(7) of the English Act, whereas our Section 70(1) has no equivalent in the laws of England. And since Section 70(1) is couched in peremptory form and the word "shall" therein imports an obligatory provision, the hands of the court are tied in that there is no room for discretion. My conclusion therefore is that in any case where a disqualification for a period of no less than 6 months is imposed in respect of one or some or all types of vehicle, as the case may be, the order for re-testing should inevitably follow in regard to the type or types of vehicle involved. From this finding I hold that the magistrate is right on his order for re-testing.

12. In the upshot I confirm the sentence passed on the Appellant and dismiss the appeal.

Representation:

Mr. Alexander Wong instructed by Lo, Wong & Tsui for Appellant

Mr. J.S. Bessell Crown Counsel for Respondent