Yeung Bing-chung v. The Queen
Read the full judgment text of CACC 349/1973 on BabelCite. This Court of Appeal judgment.
1. The appellant in this case pleaded guilty in the Magistrate's Court to : (a) Driving a private car for the carriage of passengers for hire or reward; and (b) driving without Third Party Insurance.
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CACC000349/1973 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 349 OF 1973 -----------------
----------------- Coram: Trainor J. in Court Date of Judgment: 7th June, 1973 ----------------- JUDGMENT ----------------- 1. The appellant in this case pleaded guilty in the Magistrate's Court to : (a) Driving a private car for the carriage of passengers for hire or reward; and (b) driving without Third Party Insurance. 2. The appellant having previous similar convictions the learned magistrate imposed a fine of $400 and disqualified him from holding or applying for a driving licence for eighteen months on the first count; and imposed a fine of $300 and similarly disqualified the appellant for twelve months. There was no limitation as to the class or type of vehicle involved in the disqualifications. 3. The appellant appealed against sentence and appeared in person. He asked that his disqualification be limited to private cars and pointed out that if the court acceded to his request he would be able to get employment driving light lorries which would enable him to support the family of eight who are dependent on him. 4. The learned magistrate in his statement of findings referred to the prevalence of the offences charged and stressed the unfair advantage pak pai operators have over taxi drivers who have to pay a premium of up to $90,000 to obtain a licence. He pointed out that he considered that the fines he imposed were appropriate and added that a person who committed these offences a second time should anticipate a longer period of disqualification on being convicted 5. Under the present legislation the only period of disqualification that may be imposed for driving without insurance is one of twelve months and consequently the learned magistrate resorted to section 23 of the Road Traffic Ordinance:
By virtue of this he disqualified the appellant for 18 months on the first count. 6. The penalty fixed by the Road Trafio (Registration and Licensing of Vehicles) Regulations for using a private car for carrying passengers for reward is maximum $1,000 and imprisonment for three months; for a second or subsequent conviction the monetary penalty remains the same but the maximum term of imprisonment is increased to six months. Disqualification is not contemplated by that section as a punishment. It is only by reason of section 23 of the Road Traffic Ordinance that a Court has power to disqualify in the absence of a provision to that effect in the relevant section and in my opinion an indication as to the appropriateness of disqualification as a penalty, or an additional penalty, can be derived from those sections which make reference to it. For example, disqualification is an obligatory penalty for such very serious offences as driving while under the influence of alcohol or drugs, or driving without insurance. For the letter offence the maximum (and only) disqualification is for twelve months. For the offence of dangerous driving, even if it results in death, disqualification is not a compulsory penalty. It is only on a second conviction that it is so. 7. In my opinion the Legislature never intended section 23 of the Road Traffic Ordinance to be resorted to except in the cases of the most exceptional gravity or in flagrant and persistent breaches of the Code. It is surely evident from the provision that only on a second conviction for langerous driving, even if death results, must a driver be put off the road that it never contemplated the invocation of section 23 as an appropriate means of dealing with offences such as that of which the appellant was convicted on the first count in the instant case. Indeed, the Legislature has clearly indicated what it considered to be an adequate penalty for a second conviction for the offence which is under consideration. It made provision for it in fixing a constant maximum monetary penalty for the offences irrespective of the number of time committed and raised from three to six months the penalty of imprisonment. It is unlikely that the Legislature ever considered that section 23 of the Road Traffic Ordinance would be invoked by a magistrate to overcome the limitation on the period of disqualification fixed by another Ordinance. 8. Despite the learned magistrate s view, expressed in his findings, that even though it has been suggested in appeals that there is a norm or usual penalty for cases such as the instant one he does not consider there is or should be, I consider, with respect, there should be a norm. It is only from the basis of such norm can the exceptional case or peculiar circumstance be reflected in a penalty that obvionsly departs from it. Indeed, it is only from the basis of a norm that consistency in sentencing, which is so highly desirable, can be achieved. 9. The case of CHAN Tai-lee v. Reg. (1) was one where the accused was convicted on his plea of soliciting passengers and fined $100 and disqualified for six months. On appeal the disqualification was reduced to seven weeks. In that case the learned Chief Justice said:
10. On his previous conviction the appellant was fined $25 and $75 respectively and disqualified for twelve months for driving without Third Party Insurance. His present penalties have been increased sixteen times and four times respectively which, in my opinion clearly, and properly, reflects the desirability of a substantially increased penalty for a second offence. However, having regard to the fact that disqualification is an unusual though not unheard of, penalty for the offence for which the appellant was convicted on the first count and that this Court considered seven weeks an appropriate disqualification in CHAN Tai-lee v. Reg (1) I consider the appropriate period of disqualification on the first count in the instant case to be six months. 11. As I understand the position, the appellant is a driver and to disqualify him from driving motor vehicles without limitation as to type or class would seriously restrict his opportunities of obtaining employment and thereby lessen his ability to support his large family, I. though with some hesitation, limit the disqualification to private motor cars. 12. The appeal is thus allowed to the extent that the period of disqualification imposed on the first count is reduced to six months and the type of vehicle involved in the disqualification in both counts is limited to private cars. The disqualifications will operate concurrently.
Representation: Appellant in person Mr. Harte, C. C. for Respondent (1) criminal Appeal Case 667/1972. |