Leung Cheuk Sing v. The Queen

HCMA000831/1986

IN THE SUPREME COURT OF HONGKONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 831 OF 1986

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BETWEEN

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Coram: Hon. Jones, J. in Court

Date of hearing: 21 August 1986

Date of delivery of judgment: 21 August 1986

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J U D G M E N T

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1. On the 5th June 1986, the appellant pleaded guilty to a charge of permitting driving without a driving licence contrary to S.42(3) of the Road Traffic Ordinance and to permitting driving without third party insurance, contrary to S.4(1) of the Motor Vehicles Insurance (Third Party) Risks Ordinance. The appellant was fined $300 in respect of the first charge and on the second charge, he was fined $1,000 with an alternative of 4 weeks imprisonment disqualified from driving all classes of vehicles for 12 months and ordered to take a retest under the mandatory provisions of S.70(1) of the Road Traffic Ordinance which was in force at the time of the conviction. The last order under Section 70(1) provided for a compulsory retest where a period of disqualification of not less than 6 months had been imposed. The mandatory requirement was however removed by an amendment to the section on the 9th July 1986 so that this penalty is now discretionary, but it does not operate retrospectively.

2. The facts in this case reveal that on the 5th May 1986 at 10.55 p.m., Sy Tin-keung who was a colleague of the appellant at his place of employment drove the appellant's motor cycle along Man Shui Street and was involved in a traffic accident that occurred at the junction with Tak Man Street. Upon enquiries being made by the police, it was ascertained that Sy Tin-keung did not have a driving licence relating to that class of vehicle. The appellant who appeared in person before the learned Magistrate said in mitigation :-

"It is my fault for not checking clearly that he had a licence, please be lenient."

3. There is no defence under S.42(3) relative to the first charge that the owner was not aware that the driver did not have a driving licence at the time of the offence. The appellant appeals against that part of the sentence that relates to the disqualification under S.4(2)(a) of the Motor Vehicles Insurance (Third Party) Risks Ordinance which provides for a mandatory period of disqualification of not less than 12 months and not more than 3 years from the date of conviction from obtaining a driving licence unless there are special reasons.

4. The original grounds of appeal that were argued by Mr. Tse who appeared on behalf of the appellant, related entirely to the appellant's personal circumstances. The matters adverted to can be summarized first the appellant has had a clear driving record for a period of 6 years and secondly he is employed as a professional driver which is likely to seriously jeopardise his livelihood thus causing financial hardship if the disqualification is not removed. A further ground was today argued with leave that the learned magistrate in disqualifying the appellant, failed to give sufficient consideration to the fact that the appellant did not know that Sy Tin-keung did not have a driving licence.

5. Mr. Tse submitted that one of three different interpretations could be placed upon the appellant's mitigation which are as follows :-

(1) the appellant did not check whether the driver did have a driving licence;

(2) the appellant might have checked but not thoroughly enough; or

(3)    the appellant did check, but that he was misled by his colleague    who told him a lie.

6. Mr. Tse cited two cases in support of his submission. The first was Chau Chi-ming v. R.⁽¹⁾ which is authority for the principle that with regard to sentence, a court should take the view of the evidence which was most favourable to an accused. The second was R. v. Tam Wai-lun⁽²⁾, a judgment of Bewley, J. which was an appeal from a magistrate who had imposed a mandatory disqualification under the same section as in the instant case. On the appeal, Bewley, J. considered upon the evidence that the appellant had specifically enquired whether he was covered by insurance and came to the conclusion that he had been misled so that he removed the disqualification.

7. Although Mr. Tse contended that the appellant could have been misled, I am unable to agree for there was no evidence to that effect. The appellant said that he was at fault and made no reference to the effect that he had been misled. In any event in order to constitute a special reason on this ground, it must be established by evidence that the defendant was misled without negligence on his part, see Wilkinson's Road Traffic Offences S.12th Edition Volume 1, p. 764.

8. Whittall v. Kirby⁽³⁾ is the leading authority on the matter of special reasons. It was the first case where the court in England had to consider the meaning of 'a special reason'. Lord Goddard, the Lord Chief Justice at p.200 had this to say about the position of a professional driver :-

"That a man is a professional driver cannot, as it seems to me, by any possibility be called a special reason. The fact that drivers are professional drivers would of itself indicate that they are more likely to be habitually on the roads than people who drive themselves, so there is all the more reason for protecting the public against them. By exercising discretion in favour of an offender because he is a professional driver or merely because he drives himself for business purposes, it is obvious that the court is taking into account the fact that in such cases disqualification is likely to work greater financial hardship than in the case of a person who uses his car for social or casual purposes. There is no indication in the Act that Parliamen meant to draw any distinction between drivers who earn their living by driving or who drive for purposes connected with their business and any other users of motor cars. That in many cases serious hardship will result to a lorry driver or private chauffeur from the imposition of a disqualification is no doubt true, but Parliament has chosen to impose this penalty and it is not for courts to disregard the plain provisions of an Act of Parliament merely because they think that the action that Parliament has required them to take in some cases causes some or it may be considerable hardship. Had Parliament intended that special consideration was to be shown to professional drivers or first offenders it would have so provided."

At p.201, Lord Goddard went on to cite, with approval, the wellknown passage in R. v. Crossan⁽⁴⁾ where the King's Bench Division of Northern Ireland considered the meaning of 'special reason' in the following words :-

"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."

Another case that concerned a professional driver with a clear record, which was argued to be a 'special reason' was R. v. Steel⁽⁵⁾ where Lord Parker the Lord Chief Justice had this to say at p. 511 –

"In the wellknown case of Whittall v. Kirby⁽³⁾, it was laid down as clearly as could be that a matter peculiar to the defendant, such as his good character, was not a special reason within what was the then Road Traffic Act 1930. That is a decision which obtained very great publicity at the time. It has been thought to cause great hardship ever since. It has been, however, affirmed time and time again and the court that laid it down was a final Court of Appeal in those days in such a case; it was a Divisional Court on a case stated from the justices. Since then Parliament has re-enacted the same words with full knowledge of that decision, in 1960 and again in 1962, .................................................. It is perfectly clear that in those circumstances this Court, observing the intention and seeking to honour the intention of Parliament, must inevitably uphold the principle laid down in Whittall v. Kirby."

9. It is quite clear that the submission that has been made on behalf of the appellant in the instant case, cannot be entertained. Mitigating or extenuating circumstances do not constitute 'special reasons' where they are personal to the offender. Those circumstances are not available as grounds to discharge an order for disqualification whilst, as I have said, there was no evidence before the magistrate that the appellant was misled. As a result, the appeal against sentence will be dismissed.

10. I would comment, again upon the draconian provisions that were in the former S.70(1) of the Road Traffic Ordinance. As the amendment does not apply retrospectively, the appellant will be required to re-take the driving test. He is, upon the evidence, a competent professional driver with a good driving record. He now faces the period of disqualification, but after it has expired several months will no doubt elapse before he will be in a position to re-take the test. The requirement to do so in my judgment can only be described as unnecessary punitive and unjust thereby causing the appellant further hardship.

(1) [1977] H.K.L.R. 466

(2) [1985] Mag. App. 1001

(3) [1947] 1 K.B. 194

(4) [1939] 1 N. I. 106

(3) [1947] 1 K.B. 194

(5) [1968] 523 Cr. App. R. 510

Representation:

Mr. Joseph Tse instructed by Chow Griffiths & Chan for Appellant

Miss Susanna Lee (Legal Department) for Crown/Respondent