The Queen v. Chan Chin Kui

HCMA000959/1985

HEADNOTE

Appeals from mandatory orders for disqualification for 12 months and for re-testing on third conviction for speeding, pursuant to section 41 of Road Traffic Ordinance. Such disqualification does not wipe the slate clean and a further 12 months disqualification and further re-testing must follow any further speeding offence. All three offences do not have to be within three years - there must be a three year period free of speeding offences before the mandatory provision does not apply. Re-testing also mandatory even though if no evidence of incompetence, contrary to authorities (R v. Lee Fook-choi) that re-testing should not be imposed as a penalty.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 958 & 959 of 1985

___________

BETWEEN

AND

___________

Coram: Hon. Penlington, J. in Court

Date of Hearing: 5 November 1985

Date of Delivery of Judgment: 5 November 1985

__________

DECISION

__________

Preliminary

1. While the issues raised in these two appeals are not on all fours, they both involve the same statutory provision and touch on matters where there may be a general public misconception of what the law is. For convenience therefore I have consolidated both decisions.

2. Both these appeals are against disqualifications imposed pursuant to section 41 of the Road Traffic Ordinance, Cap. 374. This section reads as follows :-

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. "

As the mandatory disqualification is 12 months that also brings into play Section 70 of the same Ordinance which provides that when a driver is disqualified for not less than 6 months he must be re-tested before he can have his license renewed.

Appeal No. 958/85

3. Mr. Tsoong had convictions for speeding on the 4th of March 1983, the 8th of February 1984 and the 28th of February 1985. On that last occasion, he was disqualified for a period of six months, the offence presumably having been committed before section 41 came into force: That period of disqualification accordingly expired on the 28th of August 1985. However, on the 26th of February 1985, before he had been disqualified, he committed yet another speeding offence. This resulted in his appearance in the Magistrate Court on the 10th of October 1985 and the magistrate imposed the mandatory period of disqualification of 12 months. Accordingly, he had only got his license back for some six weeks before he lost it again.

4. The case for the appellant is that, having served a period of disqualification, it is wrong that he finds himself disqualified yet again for an offence committed prior to the first period of disqualification. It is argued that this in effect being punished twice for the same offence and that I should adopt the approach which is set out in section 6 of the Road Traffic (Driving Offence Points) Ordinance Cap. 375. Sub-section (1) of that section reads : -

This means that when a driver is disqualified for having incurred more than the statutory limit of points that cancels out those points in his record and after the period of disqualification, he starts afresh.

5. Mr. Lam for the appellant argued very cogently that if a person is disqualified for such offences as reckless or careless driving but that, having served a period of disqualification, he starts again, surely the same approach should be taken in relation to speeding which carries a much lower maximum penalty and fewer penalty points. Indeed unless the speed is more than 15 km.p.h. over the limit it carries no penalty points at all.

6. I am satisfied that the wording of section 41 of Cap. 374 is such that I am unable to adopt the approach suggested by Mr. Lam. To do so it seems to me would mean reading into section 41 the same provision as is in section 6 of the Driving-offence Points Ordinance. That it was not so included must I think mean that such was not the intention of the legislation. It seems to me that the wording of section 41 is unambiguous in this respect and there is no question of giving it another interpretation more favourable to the subject. A disqualification does not wipe out the previous offences and enable the offender to start again and not face the mandatory disqualification of he offends against this section again. The section simply says that if a driver has two previous speeding offences at any time and is convicted of a third, he must be disqualified for 12 months and re-tested. The only qualification is that if a person is charged with speeding and a period of 3 years has elapsed since his last conviction, the court may treat the present charge as a first offence. There is nothing which suggests that a disqualification under the section acts in any way as removing the prior offences from the record so far as the operation of the section is concerned.

7. It may seem strange that for a person who has 3 convictions for careless driving (5 penalty points) the mandatory disqualification is only 3 months, he may not have to be re-tested and after the period of disqualification he starts afresh whereas, for 3 speeding offences of any sort, the disqualification is 12 months minimum, he has to be re-tested and the record is not wiped clean. That, however, is the position as it stands.

Appeal No. 959/85

8. Here it was argued for the appellant that the Magistrate should not have imposed the mandatory disqualification under section 41 because, while the offence was his third conviction, there was a period of more than three years between the first and the last. The appellant was convicted on the 10th of June 1982, the 4th of April 1985 and finally on the 4th October 1985. As there was more than three years between the 10th of June 1982 and the 4th of October 1985 it was submitted that the mandatory disqualification provision did not apply.

9. I am satisfied that this also is not correct. It is only when there is a period of not less than three years between the last conviction and the one which is being considered that the proviso applies. This means that if a person has a third conviction under the section and is disqualified, he must then have at record clear of any convictions for speeding for a period of three years before the mandatory disqualification does not apply. In this case that would be the 4th of April 1988. The section does not provide that all three convictions must be within a three-year term.

10. The other matter which also concerns me is that in both these cases the appellants will have to be re-tested although there is no evidence whatever that they are incompetent drivers. Jones J. in R. v. Lee Fook-choi, M.C.A. 647/85, after citing the relevant English authorities, R v. Donnelly (1975) RTR 243 and R v. Banks (1978) RTR 535, reduced a disqualification for accumulating 15 penalty points from 6 months to 3 months because he considered that re-testing should not be a penalty but should only follow some evidence of incompetence. In Hong Kong however the combined effect of Section 41(2) and 70 means that on a third conviction for speeding, no matter how trivial, there must be such a re-testing and the court has no discretion not to so order. I share the doubts of Jones, J. as to whether that was what was contemplated when the sections were enacted.

11. I am satisfied the magistrate had no discretion not to make the orders he did and both these appeals must be dismissed. I do, however, hope that this provision is re-examined.

Representation:

Johnson Lam (K.Y. Woo & Co.) for the Appellant in Magistracy Appeal No. 958/85

John Barton of So & Karbhari for the Appellant in Magistracy Appeal No. 959/85

Samuel Leung, S.C.C. for Crown/Respondent