The Queen v. Kwok Kam Sun

HCMA001690/1990

Road Traffic - disqualification

A person who has been disqualified as a result of incurring 15 or more points under s.8 of the Road Traffic (Driving-offence Points) ordinance, Cap. 375, and who drives while so disqualified, commits an offence contrary to s.12 (2) (b) of that Ordinance in respect of which offence the court has no power to order disqualification. He cannot be charged with driving while disqualified under s.44 of the Road Traffic Ordinance, Cap. 374.

BETWEEN

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Coram: Fuad, V.-P., Clough & Macdougall, JJ.A.

Date of Hearing: 11 July 1991

Date of Judgment: 11 July 1991

Reasons handed down: 16 July 1991

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JUDGMENT

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Fuad, V.-P.:

1. These are our reasons for the decision we reached on 11th July 1991 on this magistrate's appeal which had been reserved for the consideration of this court pursuant to s.118 (1) (d) of the Magistrates Ordinance, Cap. 227.

2. On 27th October 1990, the appellant Kwok Kam Sun pleaded guilty to the following offences before Mr. N. Stewart-Pearson in the Magistrates Court in South Kowloon:

3. The offences charged occurred on 25th September 1990. The appellant was stopped at a police road block and asked to produce his driving licence. He was unable to do so and it subsequently transpired that he had been disqualified from driving all vehicles for a period of 3 months from 26th July 1990 under the Road Traffic (Driving-offence Points) Ordinance, Cap. 375.

4. The magistrate imposed a sentence of 2 months' imprisonment, suspended for 2 years, and a fine of $2,000 on Charge A. He also disqualified the appellant from driving all vehicles for a period of 12 months under s.44(2) (a) of the Road Traffic Ordinance. In respect of Charge B, the appellant was fined $2,000 and disqualified for 12 months under s.4(2) (a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance.

5. In his full and helpful Reasons for Sentence, about the two order for disqualification, the magistrate said:

"The minimum periods were imposed because the period of disqualification for driving while disqualified is in addition to the period of disqualification for driving without insurance by virtue of Section 44(3) of the Road Traffic Ordinance, Cap. 374 and Section 4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 and, in the light of the mitigating factors to which I have referred above, I considered that 2 years disqualification was sufficient."

6. In his appeal to the High Court, the appellant's grounds of appeal were that the magistrate was wrong in principle to order the periods of disqualification on each charge to run consecutively and that the total period of 2 years' disqualification was manifestly excessive.

7. According to Ryan, J.'s notes, some magistrates "feel that they are constrained by [the relevant provisions of the two Ordinances] to make the periods of disqualification consecutive." The question Ryan, J. referred to this court was: "Has the magistrate power to order that the periods of disqualification run concurrently where the two offences arose from the same event?"

8. Mr. Timothy Cheung, for the appellant (he did not appear in the court below) had not finished his submissions when we took the mid-day adjournment. He had been contending that on the true construction of the relevant provisions of the Road Traffic Ordinance and the Motor Vehicles Insurance (Third Party Risks) Ordinance, periods of disqualification imposed at the same time, respectively under s.44(2) of the former Ordinance and under s.4 (2) (a) of the latter Ordinance, could not lawfully be ordered to run consecutively.

9. However, when the court resumed, we raised a point which was not considered in the court below and which did not feature in the appellant's grounds of appeal, and we invited argument upon it. Before we discuss that matter, we will set out the provisions of the two Ordinances applied by the magistrate, upon which Mr. Cheung's submissions had been focussed.

10. The relevant provisions of the Road Traffic Ordinance, are as follows:

"44. (1) A person disqualified from holding or obtaining a driving licence who -

(a)	obtains a driving licence while he is disqualified; or
(b)	while he is disqualified drives on a road a motor vehicle or, if the disqualification is limited to the driving or a motor vehicle of a particular class, a motor vehicle of that class,

commits an offence and is liable to a fine of $10,000 and to imprisonment for 12 months.

(2)   A person convicted of an offence under this section shall be disqualified -

(a)	for a period of not less than 12 months in the case of a first conviction; and
(b)	for a period of not less than 3 years in the case of a second or subsequent conviction or in the case of a conviction subsequent to a conviction under section 25 of the repealed Ordinance.

(3)   The period of any disqualification under subsection (2) shall be in addition to any other period of disqualification ordered under any other provision of this Ordinance.

(4)   ...."

In s.2, we find the following definition:

" 'disqualified' means disqualified under this Ordinance from holding or obtaining a driving licence ..."

11. The material parts of s.4 of the Motor Vehicles Insurance (Third Party Risks) Ordinance are in these terms:

"4. (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 $10,000 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.
		....."

12. We mention here that the Road Traffic Ordinance Contains other provisions making it obligatory on a court to disqualify a defendant, subject to "special reasons", on conviction for the following offences:

(a)     causing death by reckless driving: s.36 (2);

(b)     reckless driving: s.37(2);

(c)     driving etc. under the influence of drink or drugs: s.39 (2).

The same Ordinance, by s.69, gives the court a discretion to order disqualification on conviction for certain offences in connection with motor vehicles.

13. The point we raised with counsel arises out of a consideration of the effect of the Road Traffic (Driving-offence points) Ordinance, Cap. 375. Section 8 gives jurisdiction to a magistrate, upon the hearing of a summons taken but by the Commissioner for Transport, to order a person to be disqualified from noldiny or obtaining a driving licence for 3 months (or for 6 months if he has been previously disqualified under the ordinance) if he is satisfied that the person concerned has incurred 15 or more points in respect of scheduled offences. It was, as we have seen, under that Ordinance that the appellant was disqualified for a period of 3 months from 26th July 1990.

14. Subsection (7) of s.8 of the Ordinance provides that where a person is disqualified under that section, his driving licence shall be of no effect so long as the disqualification continues in force. Section 12(2)(b) of the Ordinance makes it an offence, punishable by a fine of $10,000 and by imprisonment for 12 months, for a person who has been disqualified under the Ordinance to drive a motor vehicle while so disqualified.

15. In relation to the Road Traffic (Driving-offence Points) Ordinance, it is important to note the following:

16. It is clear, therefore (as Mr. Bruce who appeared for the Crown on this appeal conceded) that the appellant should not have been charged (Charge A) with the commission of an offence contrary to s.44 (1) (b) of the Road Traffic Ordinance. In the light of the definition of the word "disqualified" in s.2 of the Road Traffic Ordinance (" ... disqualified under this ordinance ...") the "person disqualified" who can commit an offence under s.44(1) can only be a person who has been disqualified under that Ordinance, and only a person "convicted of an offence under this section" is subject to the mandatory disqualification provisions of s.44(2) of the Road Traffic Ordinance (unless a provision on the lines of s.4(2)(b) of the Motor Vehicles Insurance (Third Party Risks) Ordinance is applicable).

17. In the place of Charge A as laid, the appellant should have been charged with the offence he had in fact committed, a contravention of s.12(2)(b) of the Road Traffic (Driving-offence Points) Ordinance and, as noted above, for that offence the court has no power to order disqualification.

18. For these reasons, we granted the appellant leave to appeal out of time against his conviction on Charge A. We allowed the appeal and quashed the conviction on that Charge. We set aide the suspended sentence, the fine and the order for disqualification imposed on that Charge. The conviction, fine and disqualification on Charge B remained unaffected by our decision.

19. In the event, we have not sought to address the question reserved for our consideration by Ryan, J. because any observations we might have made would have been obiter, and we did not have full argument on the matters raised by the question.

Representation:

Mr. Timothy Cheung (Raymond Wu & Co.) for the Appellant

Mr. A.A. Bruce (Crown Prosecutor) for the Crown.