The Queen v. Mo Wing

HCMA000746/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Li, V.-P., Kempster, J.A.& Hunter, J.

Date of Hearing: 22nd November 1985

Date of Judgment: 22nd November 1985

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JUDGMENT

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Kempster, J. A. :

1. On 8th August of this year MO Wing was convicted in North Kowloon Magistrate's Court, on his own plea, of an offence of driving a taxi at a speed exceeding 50 kilometres per hour contrary to section 41(1)(a) of the Road Traffic Ordinance. He was fined $200, disqualified from holding or obtaining a driving licence for 12 months and ordered to re-sit the driving test pursuant to sections 41(2) and 70(1) respectively. Against that sentence MO Wing appealed to the High Court and his appeal was heard by Bewley, J. on 18th September. At that hearing MO Wing sought an order that his disqualification from holding or obtaining a driving licence should apply only to taxis. The learned judge was troubled as to his powers in this regard and adjourned the appeal to 23rd for argument. Having heard such argument and at the invitation of counsel Bewley, J. referred the question to this Court pursuant to section 118(1)(d) of the Magistrate's Ordinance; the question being whether or not a Magistrate or a Judge has power to limit the classes of vehicle when an individual is subject to mandatory disqualification for twelve months under the provisions of section 41(2). That section, as a whole, reads as follows:

commits an offence and is liable to a fine of $4,000.

It is pointed out by Mr. McCoy, who appears for the Crown, that the expression "disqualified" is defined in section 2 of the Ordinance in these terms:

"'Disqualified' means disqualified under this Ordinance from holding or obtaining a driving licence and 'disqualification' shall be construed accordingly."

And again:

"'Driving licence' means a driving licence issued under this Ordinance.

The Road Traffic (Driving Licences) Regulations made pursuant to the Ordinance provide for the issue of driving licences in the following classes:

Private cars

Taxis

Public light buses and private light buses

Public buses and private buses

Light goods vehicles

Medium goods vehicles

Heavy goods vehicles

Articulated vehicles

Special purpose vehicles

Motor cycles and motor tricycles

Invalid carriages

Government vehicles

Prima facie disqualification covers all these classes but provisions allowing limitation of its ambit appear in section 69 which reads:

(2)     A disqualification -

It is submitted on behalf of the Crown that subsection 2 should in effect so be construed as to read:

"A discretionary disqualification (b) imposed in respect of any other offence - "

which would not allow its limitation in relation to a mandatory disqualification under section 41. And it is faintly pointed out both that these two sections appear in different parts of the Ordinance and that if section 69(2) was to have general application it would more appropriately have been enacted in a separate section.

2. When looking at section 41(2) we have already referred to the words "under section 15 of the repealed Ordinance". That was the Road Traffic Ordinance, Cap. 220. It is helpful, on the point of construction, to see how the equivalent of section 69 was then worded. The section was then section 23:

may order him to be disqualified from holding or obtaining a driving licence for such period as the court or magistrate thinks fit (again a discretionary power), and where any provision of this Ordinance requires him to be so disqualified for a minimum period, shall order him to be disqualified for a period which is not less than that minimum period:

Provided that -

But in section 69(2) of the Ordinance which we have to construe the words "under this section" do not appear. Again, on the point of construction, we note that in section 8(6) of the Road Traffic (Driving-Offence Points) Ordinance, Cap. 375 the provision as to disqualification reads:

A similar provision could have been included in section 41(2).

3. Having briefly compared these two related Ordinances we think it right to mention that we notice grave anomalies between the provisions which may require or result in disqualification depending on whether a prosecution is brought pursuant to the one ordinance or the other. Those anomalies may have given rise to the number of appeals about which we have been informed.

4. In the event we have no hesitation in giving to section 69(2) the wide meaning which it literally bears namely that a disqualification imposed in respect of "any other offence" which, of course must be an offence in relation to motor vehicles, may, if the court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed. The courts have power to provide for such limitation when imposing a mandatory disqualification under section 41(2).

5. The order which we make in the circumstances is to remit the appeal to Bewley, J. with our opinion.

Representation:

Mr. Faulkner (D.L.A.) for applicant

Mr. McCoy & Miss V. Fung for D. P. P./ respondent