The Queen v. Ho Tat-wai

CACC000657/1983

IN THE HIGH COURT OF JUSTICE

BETWEEN

Coram: Hon. Bewley, J.

Date: 14th June 1983

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JUDGMENT

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1. The appellant pleaded guilty in South Kowloon Magistrate's Court to (A) permitting a vehicle to be driven by a person without a valid driving licence, contrary to section 5(5) of the Road Traffic Ordinance, Cap. 220, and (B) permitting a vehicle to be used without 3rd party insurance, contrary to section 4(l) of the Motor Vehicle Insurance (3rd Party Risks) Ordinance, Cap. 272. He was fined $250 on each charge and, on charge B, was disqualified from holding or obtaining a driving licence, in respect of private cars, for 12 months. he now appeals against sentence, particularly the order of disqualification.

2. The appellant's co-defendant pleaded guilty to:

3. In mitigation, the 1st defendant had nothing to say, and the appellant said he fell asleep.

4. According to counsel for the appellant, 1st defendant is the appellant's girlfriend. Without his knowledge or consent she had borrowed his car while he was asleep. She had had an accident and telephoned to the appellant, who went to the scene as soon as he could and thence to the police station.

5. Such a state of affairs is by no means apparent from the brief facts of the case, which were admitted by the then unrepresented appellant. These record that the lady in question had an accident at 3 a.m. in Cameron Road, that she had no driving licence and that the appellant was interviewed and revealed that he had had no objection to her using his car.

6. Mr. Westbrook, for the appellant, alleges that, when the latter made his statement in the police station - at 4 a.m. - he was asked if he had permitted the 1st defendant to drive his car and advised that, if he said no, the matter would be referred to CID for further enquiries. Perhaps not surprisingly, he said he had had no objection to her using his vehicle.

7. Mr. Westbrook submitted that, in these circumstances, there were special reasons why the appellant should not be disqualified.

8. Mr. Leung, for the Crown, was unable to confirm or deny whether there had been any reference to CID enquiries that night, but did confirm that the appellant had made a statement more or less as stated by Mr. Westbrook. He was first asked if he knew whether 1st defendant had a driving licence and he said he was not clear. He was then asked if he had agreed that she should drive and he said he had agreed.

9. Mr. Leung also said that the Crown accepted that the appellant was not in the car at the time of the accident. This was a significant concession, because there is nothing in the magistrate's record or the brief facts of the case to indicate that this was so. Indeed it came as a surprise to me. I had inferred that the appellant had fallen asleep in the car and that his girlfriend was driving him home when the accident occurred.

10. There is nothing on the record to indicate whether the magistrate made the same assumption. But had he been told by the prosecution that this was not the case, it is inconceivable to my way of thinking that such an experienced magistrate would not have recorded the fact.

11. It is important because there is a great difference, where mens rea is concerned, which is an essential impedient of these offences, between a friend going off without a word in someone else's car and driving a sleepy boyfriend home late at night.

12. Counsel for the Crown submitted that, the appellant not having told the magistrate any of these matters, when he had the opportunity to do so, it is too late now to complain.

13. I do not think this is right. He was unrepresented and may not have been aware of the mens rea requirement. There is also the danger that the magistrate may have been under a misapprehension as to the circumstances.

14. On the other hand, as I indicated to Mr. Westbrook, it will only be possible to say whether there are special reasons when the facts are properly established. It would be wrong to upset the magistrate's decision on information supplied by counsel. But if it is true, it is possible that the appellant is not guilty of any offence.

15. Mr. Westbrook then took instructions and, having done so, asked for leave to appeal against conviction out of time. It seemed to me that there would be a grave risk of injustice were I not to grant this application. I gave leave accordingly, allowed the appeal and ordered a retrial.

16. It will now be open to the appellant to place his version of events before the magistrate, who will have to consider whether to enter a plea of not guilty or, if not, whether there are special reasons for not disqualifying the appellant. I see no reason why the matter should not be dealt with by the same magistrate, if he is available.

Representation:

Mr. Westbrook instructed by Haldane Midgley & Co. for appellant

Mr. Sammuel Leung, Senior Crown Counsel for Crown