The Queen v. Wong Wai Cheung

HCMA001594/1989

Mag. App. No. 1594/89

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HEADNOTE

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MOTOR VEHICLES INSURANCE (THIRD PARTY RISKS) ORDINANCE - DISQUALIFICATION FROM HOLDING A DRIVING LICENCE - "SPECIAL REASONS".

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1594 OF 1989

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BETWEEN

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Coram: Hon. Ryan, J. In Court

Date of hearing: 22 February 1990

Date of judgment: 2 March 1990

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JUDGMENT

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1. The appellant pleaded guilty before Mr I. Candy to a charge of permitting a vehicle to be driven by a person who was not the holder of a valid driving licence. He was fined $500. He also pleaded guilty to permitting a vehicle to be driven without a valid 3rd party insurance policy. He was fined $1,000 and disqualified from obtaining or holding a driving licence for 12 months.

2. The appellant who was unrepresented at the first hearing then applied for a review of sentence in respect of the disqualification. At the review he was represented Mr Owen who also appeared in this appeal.

3. After hearing evidence and submission on the facts and the law, the Magistrate in his judgment stated:-

"Having considered the passages and cases quoted I hold that there are no circumstances which amount to special reasons for not disqualifying or reducing the period of disqualification. Shortness of distance - immaterial that only short drive intended. Likely danger - Clearly important but not so much in this case as it is overborne by the reasons for the driving. No compelling or urgent circumstances for D1 allowing D2 to drive.

The incident was clearly the sort of mischief intended to be prevented by the Ordinance.

Application refused. Order in relation to D1's disqualification stands."

4. The facts were that the appellant was giving his 16 year old son a driving lesson. They were on a road in an industrial area which was still under development. It was 10 p.m. the place was deserted, no pedestrians or other vehicles present. The son drove for about 200 yards very slowly in first gear. He then stalled the engine and turned off the ignition. A police party which had arrived in a police vehicle checked and found the son did not hold a driving licence.

5. The appeal is based on the submission that the Magistrate erred in failing to find that the facts gave rise to special reasons thus enabling him to exercise his discretion not to disqualify.

6. S.4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance provides that any person who uses or causes or permits another person to use a motor vehicle on a road without a policy of insurance is to be disqualified from holding or obtaining a driving licence for not less than 12 months nor more than 3 years, unless the court for special reasons thinks fit to order otherwise. If there are special reasons the Magistrate has a discretion in relation to disqualification. There is no definition of "special reasons" in the ordinance.

7. In Whittal v. Kirby [1946]2 All E.R. 552 Lord Goddard approved a passage from R. v. Crossen [1939]1 N.T. 106 which stated:-

"A 'special reason' within the exception is one which is special to the facts of the particular case, that is special to the facts which constitute the offence. It is, in other words, a mitigating or extenuating circumstance not amounting in law to a defence to the charge, yet directly connected with the commission of the offence and one which the Court ought properly to take into consideration when imposing punishment. A circumstance peculiar to the offender as distinguished from the offence is not a 'special reason' within the exception."

8. In Reay v. Young [1949]1 All E.R. 1102, Lord Goddard upheld a finding that special reasons existed where a husband had let his wife drive for 150 yards on a deserted moorland road.

9. In Nicholson v. Brown [1974] R.T.R. 117, a case of driving without due care the Court did not consider the fact  that the road was slippery and in a dangerous condition to be a special reason.

10. The most recent authority on the point seems to be Chatters v. Burke [1986]3 All E.R. 168, a case involving driving with excess alcohol. After referring to R. v. Agnew [1969] Crim. LR. 152, Taylor, J. had this to say:-

"In the course of this case Watkins L.J. indicated seven matters which ought to be taken into account by justices if a submission is made that special reasons exist for the defendant not to be disqualified. First of all they should consider how far the vehicle was in fact driven; second, in what manner was it driven; third, what was the state of the vehicle; fourth, whether it was the intention of the driver to drive any further; fifth, the prevailing conditions with regard to the road and traffic on it; sixth, whether there was any possiblity of danger by contact with other road users; and finally what was the reason for the  vehicle being driven at all.

Of those seven matters for my part I would have thought that item six was the most important but clearly the distance which is driven is not a sufficient determinant whether special reasons should be found or not."

11. In this case the car was driven very slowly for a short distance, there was no suggestion that the car was not in good order, there were no other vehicles on the road which was in a deserted construction site area and the chance of contact with other road users was minimal. It was not, of course, a case where the vehicle was being used in an emergency.

12. It is stated in the Ordinance that the legislation seeks to make provision for the protection of third parties against risks arising out of the use of motor vehicles. The most important matter, in my judgment, is the likelihood of an uninsured vehicle coming into contact with other road users and not, as the Magistrate found, the reason for the car being driven. If the reasons for the car being driven were to overbear all other matters, special reasons would be restricted to emergency situations and the Ordinance would say so.

13. I am satisfied that special reasons did exist in this case such as to justifying a reduction in the disqualification period. The appeal is allowed to the extent that the 12 months disqualification period is reduced to 6 months.

Representation:

Mr Stanley Lee, C.C., for Crown

Mr Owen, of Hampton Winter & Glynn for Appellant

Appellant present in court