The Queen v. Leung See Piu
Read the full judgment text of HCMA 357/1985 on BabelCite. This High Court CFI judgment.
1. This is an appeal against sentence on a charge of speeding brought under Section 41(1) of the Road Traffic Ordinance. The whole question is not the fine imposed but the disqualification because the appellant had 3 previous convictions, two under Section 15 of the repealed Road Traffic Ordinance and one under the existing section 41. Subsection (2) of that section reads as follows:-
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HCMA000357/1985
BETWEEN:-
_______ Coram: The Honourable Mr. Justice Penlington in Court. Date of hearing: 14th May 1985. Date of delivery of judgment: 14th May 1985. ___________ JUDGMENT ___________ 1. This is an appeal against sentence on a charge of speeding brought under Section 41(1) of the Road Traffic Ordinance. The whole question is not the fine imposed but the disqualification because the appellant had 3 previous convictions, two under Section 15 of the repealed Road Traffic Ordinance and one under the existing section 41. Subsection (2) of that section reads as follows:-
2. Mr. Kan who appears for the appellant argued that as this is a penal provision it should be given an interpretation most favourable to the appellant. That, of course, I accept. He argues that the words in the section "convicted of a third or subsequent offence under this Section or under Section 15 of the repealed Ordinance" mean that the three offences must all be either under Section 41, the new section, or under Section 15 but not both. The magistrate did not adopt that view and held that the requirement was that the three offences should be under one or the other taken together. Mr. To for the Crown. says that is a correct interpretation. 3. It is remarkable that whereas under Section 36, which relates to causing death by reckless driving, and Section 37, which refers to reckless driving, a person shall be disqualified, in one case for 2 years and the other for 18 months for a second-conviction but the magistrate in both cases is given a discretion where he considers that for special reasons there should not be such disqualification. Under Section 41, which relates to speeding and in this case breaking the speed by not a great margin, there is no discretion and on a third conviction a disqualification for 12 months follows automatically. The sections relating to the two serious offences give the magistrate a discretion, the one which relates to speeding does not. However, that is what the legislation says. Section 36 reads:-
I think there is no doubt what the legislature intended that the previous conviction was either under the new ordinance or under the repealed ordinance. Section 37 contains a similar provision.
I am satisfied in fact that the magistrate was correct in that when Section 41(2) refers to third or subsequent offence under the Section or under Section 15, that means you must take the Section and the repealed ordinance together, and that if the previous convictions are either under Section 41 or the repealed Section 15 they count for the purposes of 41(2). I do not think there is any doubt therefore, and this is not a question of construing a penal statute se as to give the interpretation most advantageous to the defendant. That being so, the magistrate had no discretion and had to impose a mandatory disqualification of 12 months and also that the appellant has to be re-tested. I think this is a section which does impose a very substantial penalty for speeding as opposed to dangerous driving but for the reasons given the appeal against sentence must be dismissed.
Representation: Anthony To, C.C. for the Crown. Andrew Kan (Gallant Y.T. Ho & Co.) for the Appellant. |