The Queen v. Ip Koon-shing

HCMA001166/1986

BETWEEN:

Coram: Roberts, C. J.

Date: 9th December, 1986.

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JUDGMENT

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1. The appellant pleaded guilty to exceeding the speed limit by driving at a speed of 91 kilometres per hour on a road where the maximum permitted speed is 70 kilometres per hour.

2. The summons, which alleges that the offence took place on 21st June, 1985, was dated 18th October, 1985. For reasons that we have been unable to discover, the summons was not heard by a magistrate until 17th October, 1986, when, on the appellant's plea of guilty, the magistrate convicted him, fined him $1,150 and disqualified him from holding or obtaining a driving licence for all vehicles for twelve months. The appellant appeals against these sentences.

3. At the time when the offence took place, in June 1985, section 41(2) of the Road Traffic Ordinance was in effect. This provided that a person convicted of a third or subsequent offence under section 41 which dealt with speeding, "shall be disqualified for a period of not less than twelve months".

4. Section 70(1) of the same ordinance provided that where a person was disqualified for a period of not less than six months, the court shall order him to be disqualified until he has passed a test of competence to drive.

5. Section 41(2) and section 70(1) were repealed by Ordinance No. 43 of 1986, which carne into effect on 11th July, 1986.

6. There can be no doubt that, had this case come before the magistrate before 11th July of this year, he would, since this was the appellant's third conviction for speeding, have been obliged to disqualify him under section 41(2) and to order him to undertake a test of competence under section 70(1).

7. What then is the position where the penalty prescribed for an offence is altered? The legislature has sought to deal with this problem by the enactment of section 92 of the interpretation and General Clauses Ordinance, which reads as follows -

"92.          Where an act or omission constitutes an offence and the penalty for such offence is varied between the time of the commission of such offence and the conviction therefor, the offender shall be liable to the penalty prescribed at the time of the commission of the offence."

8. This seems to me to be a fair provision. It is uncommon for penalties prescribed in the law to be reduced. It is not so uncommon for them to be increased. When a penalty is increased it is surely right that the offender shall only be liable to the penalty which applied on the date when he committed the offence. If that is so, why should the reverse not apply? I see no reason to doubt that section 92 did intend the reverse to apply. It uses the word "varied". It gives no indication that "varied" only means "increased". I see no reason why it should not include "decreased".

9. Mr. Wong argued that the mandatory disqualification imposed by section 41(2) and the mandatory order for a retesting under section 70(1) were not "penalties" within the meaning of section 92. I do not agree, I consider that any form of punishment, disadvantage or disability which may be imposed on an offender falls within the term "penalty". A mandatory disqualification and a mandatory order for retesting are both forms of penalty they can hardly, after all, be described as a benefit or an advantage. In the ordinary sense of the word, I am sure that they are penalties.

10. Mr. Wong further argued that the removal of those sections could not be said to constitute a "variation" of the penalties which either could be or had to be imposed under the previous law.

11. As to this, also, I must differ from him. Before July of this year, a person who was convicted of speeding was liable to a fine of $4,000. If it was the third or subsequent conviction for speeding he was liable to a fine of $4,000 and to the certainty of an order for disqualification. The power to disqualify is now a discretionary one, exercisable under section 69 of the Ordinance, and in my opinion there has been a variation of the previous penalties which were prescribed for an offence under section 41.

12. Similarly, the removal of the retesting provision in section 75(1) is a variation of the penalties which could previously be imposed upon a driver convicted of speeding. It was an adjunct to disqualification, where this exceeded a period of six months. It remains, by virtue of another subsection, as a discretionary power which the court can exercise.

13. I, therefore, am driven to the conclusion that, by virtue of section 92 of Cap. 1, the magistrate should have disqualified this offender under section 41(2) of the Road Traffic Ordinance and that he had no discretion to exercise. Similarly, it must follow, since he should have applied the law as it was in force at the time of the offence, that he ought to have ordered the appellant to be disqualified until he had passed a test of competence to drive after the expiry of the period of disqualification.

14. The appeal against sentence is dismissed, but the magistrate's order is varied by imposing an order for retesting under section 70(1) of the Road Traffic Ordinance.

Representation:

Mr. T. Wong (Sit, Fung, Kwong & Shunt) for Appellant

Mr. G. J. Lugar-Mawson, Senior Asst. Crown Prosecutor for Respondent/Crown Prosecutor.