The Queen v. Ho Wing-fook

HCMA000808/1985

IN THE SUPREME COURT OF HONG KONG

BETWEEN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 8th October 1985

Date of Judgment: 8th October 1985

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JUDGMENT

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1. Mr. HO Wing-fook appeals to this Court in relation to a sentence passed upon him by Mr. Woo at North Kowloon Magistrate's Court on 8th August of this year. He pleaded guilty to speeding contrary to section 41 of the Road Traffic Ordinance, Cap. 374 and was fined $200 and, having regard to two previous convictions and four other fixed penalty tickets for speeding, mandatorily disqualified from driving for a period of 12 months under section 41(2). Again mandatorily, under section 71, the appellant was required to take and pass a driving test prior to the removal of the disqualification.

2. The gravamen of the appeal is that Magistrate should not have disqualified Mr. Ho in relation to all classes of vehicle. It is said that he should have considered the appellant's personal circumstances so as to be in a position to exercise the discretion which, it is common ground, permitted him to limit the class or description of vehicle to which the mandatory disqualification should relate. That discretion is given by section 69(2)(b) of the Ordinance. It is not apparent from the record whether or not this point was raised by the appellant. Probably it was not. It is not apparent either whether on his own initiative the it was not. It is not apparent either whether on his own initiative the Magistrate sought details of the appellant's family and business commitments so as to assess the degree of hardship that would be involved by a mandatory order for disqualification covering all classes of vehicle. It is probable that the Magistrate was swayed by what is unquestionably this appellant's very poor record for observance of the traffic laws. Not only has he convictions in relation to speed but also a number of convictions for failing to comply with traffic signs.

3. Mr. Pau, who appears for the appellant today and who did not appear below, has told me something of the appellant's personal circumstances. Apparently he is aged 38, a merchant with a number of employees, who has elected, because it does not appear a result of financial constraint, to make deliveries of his products himself in a commercial vehicle, for which he holds an appropriate licence, rather than to employ a driver for that purpose. So on the one hand and taking this matter de novo, I have to weigh the interest and safety of the public in the light of the appellant's record and on the other his personal circumstances.

4. All the speeding convictions I am told, and it has not been disputed, resulted from driving a private car and not a goods vehicle. Even so and I don't think anything more could have been said by Mr. Pau the balance comes down in favour of the protection of the public here since the hardship that will be imposed on the appellant by an omnibus disqualification is not great. I infer that he is in a position to employ a driver for commercial and private purposes. I find that the Magistrate was right not to exercise the discretion vested in him under section 69(2)(b) and that the order for full disqualification should stand. Accordingly the appeal is dismissed.

Representation:

Mr. Pau (R.J. Oliver) for appellant

Mr. J. Abbott for D.P.P.