HKSAR v. Wong Wai Hung

HCMA 841/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 841 OF 2004

(ON APPEAL FROM ESCC 2619 OF 2004)

____________

BETWEEN

____________

Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 13 October 2004

Date of Judgment: 13 October 2004

_______________

J U D G M E N T

_______________

1.On 14 June 2004 this Appellant appeared before Ian S.C. Candy, Esq. in the Magistrate’s Court at Eastern on three charges, namely driving in excess of the speed limit, driving while disqualified and using a motor vehicle without third party insurance.  He pleaded guilty.  On the speeding charge he was sentenced to 14 days’ imprisonment and fined $1,000.  On the charge of driving while disqualified he was sentenced to 2 months’ imprisonment.  On the charge of driving without third party insurance, he was fined $5,000 and disqualified for 12 months.  The sentences were made concurrent.  He now appeals against sentence.

2.Six amended perfected grounds of appeal have been filed on his behalf.  The first three relate to the speeding charge.  They read:

“1. The learned Magistrate erred in imposing a term of immediate imprisonment of 14 days on Charge 1 when a fine would be appropriate in the circumstances of the case.

2. In the alternative, the learned Magistrate failed to consider whether the sentence of imprisonment ought to be suspended.

3. The learned Magistrate erred in imposing a term of imprisonment on the Appellant when a breach of the relevant statutory provision, section 41(1)(a) of the Road Traffic Ordinance (Cap. 374) may be penalized by a fine only.”

3.The other three grounds relate to the driving while disqualified charge.  As numbered properly, they read:

“4. The learned Magistrate erred in finding that there were no special circumstances which would warrant a suspension of the sentence.

5. The overall sentence of imprisonment of two months’ imprisonment is in all the circumstances of the case was manifestly excessive.

6. The learned Magistrate erred in finding that the Appellant’s conduct in driving while disqualified from holding a driver’s licence was aggravated by the Appellant speeding and driving while uninsured because the Appellant was separately convicted and sentenced for this further conduct.”

4.In his Reasons for Sentence, the Magistrate said:

“The Defendant admitted the offences.  He was at a speed with in excess of the speed limit at a time when he had been disqualified from holding a driving licence for an offence of Drink Driving.  He had also previously been disqualified under the penalty points system.

The explanation offered by the Defendant was fatuous for an educated person such as he was.  I considered that the speeding offence lent an element of aggravation to the other offences.

I considered a custodial sentences appropriate on charge 1 and adopted a starting point of 3 months.  I allowed a reduction of one-third for the Defendant’s pleas and imposed a sentence of 2 months imprisonment on charge 2.  I did not consider there to be any special circumstances which would warrant a suspension of the sentence.  On the other charges I imposed fine and a further period of disqualification.”

5.The explanation referred to is the Appellant’s explanation that he was driving his car to a garage to have its roof repaired because the garage, having agreed to pick up the car, telephoned him at the last minute saying that they could not do so.

6.The third ground, as the Respondent rightly concedes, must succeed since the Magistrate imposed a prison sentence for an offence only punishable by a fine.  The sentence of 14 days’ imprisonment for speeding is set aside.  The fine of $1,000 for that offence remains.

7.As far as the driving while disqualified is concerned, despite the arguments and fresh testimonials presented on the Appellant’s behalf, I am not persuaded that the Magistrate was wrong to impose an immediate custodial sentence.  It is extremely unfortunate that a person of this Appellant’s background, character and circumstances has to be imprisoned, but the public has to be protected and the courts have recognised that such protection does involve immediate custodial sentences in circumstances like the present case.  Two months’ imprisonment does not immediately strike me as manifestively excessive.  However, there is substance in the point that what the Magistrate described as aggravation were indeed punished by the sentences for the other offences.  Counsel from the Respondent, in the course of her able argument, observed that, while the Magistrate’s choice of words was unfortunate, it is the fact that the Appellant was speeding when driving while disqualified.  Nevertheless, I do not think it is safe to assume that the Magistrate is not to be understood literally and therefore taken to have inflicted punishment twice for the same thing.  In all the circumstances, I think it is appropriate to reduce the sentence of 2 months’ imprisonment imposed for driving while disqualified to a sentence of 6 weeks’ imprisonment.

8.In the result, the appeal is allowed to the extent of setting aside the 14 days’ imprisonment imposed for speeding and reducing the sentence of 2 months’ imprisonment for driving while disqualified to a sentence of 6 weeks’ imprisonment.  As I have said, the fine of $1,000 for speeding remains.  There is no appeal against the $5,000 fine and the period of disqualification imposed for driving without third party insurance.  That $5,000 fine and that period of disqualification also remain.  As counsel for the Appellant rightly concedes, this must be accompanied by a concurrent period of disqualification for the same duration on the charge of driving while disqualified since disqualification for at least 12 months is mandatory under the statute.  The sentence is also so varied.

Mr Philip Ross (instructed by Messrs Simon Siu, Wong, Lam & Chan) for the Appellant

Ms Polly Wan (of the Department of Justice) for the Respondent