HKSAR v. Chan Wai Bun

HCMA 1174/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1174 OF 2004

(ON APPEAL FROM ESCC 4848/2004)

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BETWEEN

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 9 December 2004

Date of Judgment: 9 December 2004

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J U D G M E N T

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1.The Appellant had pleaded guilty in the Magistrate’s Court of three charges.  The 1^st charge was failing to comply with the traffic sign for which he was fine $500.  The 2^nd charge was for driving whilst disqualified and he was sentenced to 2 months’ imprisonment and disqualified for 12 months, and the 3^rd charge was using a vehicle without third party insurance.  He was sentenced to a fine of $3000 and disqualified for 12 months.

2.He now seeks to appeal against the two months’ imprisonment imposed on him in respect of the 2^nd charge.

3.The fact to which the Appellant had admitted show that the Appellant was found to have stopped his taxi in a restricted zone.  Upon a check of his licence, the police officer found that he was disqualified at the time.  His disqualification period was from 15 June 2004 to 14 December 2004.

4.The learned Magistrate when considering sentence was apprised of the fact that the Appellant had 12 previous convictions, many of which were for traffic offences.  The Appellant had been disqualified on four previous occasions under the penalty point system.  It is to be noted that looking at the Appellant’s fixed penalty record, apart from these offences, he also had offences of crossing continuous double white line and failure to comply with traffic signs.  So the Appellant was well aware at the time when he committed the present offence of driving whilst disqualified, the seriousness of offences of this nature.  He also knew that by driving whilst disqualified, he was subjecting passengers of his to risk that if something should happen there would be no insurance coverage.  Apart from his passenger, people on the road would also be subjected to risk.

5.The learned Magistrate having considered the circumstances in this case and the background of the Appellant then decided to adopt a 3 months’ starting point but taking into account the Appellant’s plead of guilty thus showing his remorse, adjusted the sentence down to 2 months imprisonment.

6.As had been correctly pointed out by Ms Lo, in the case of HKSAR v Liu Yim Hung Magistracy Appeal No. 267 of 1998, Deputy Judge Muttrie had said that the object of imposing a prison sentence for breach of a court order is to ensure the compliance with the court order.  So disqualification is not to be treated lightly because its consequences are very serious.

7.In that appeal case, Judge Muttrie had considered that the starting point of 3 months was reasonable in the circumstances.

8.In this case, it was a frequent breach by the Appellant and the learned Magistrate was therefore not wrong to impose a term of imprisonment with a starting point of 3 months.

9.The Appellant, again, in his grounds of appeal, pray in aid the fact that he has to support a wife and children.  He did not want to rely on social welfare assistance.  That intention is an admirable one.  Judging from the Appellant’s record, it would appear that he has not been keeping himself away from prison in the years leading up to the present offence.

10.It is only for me to decide whether the learned Magistrate’s sentence was manifestly excessive or wrong in principle.  I see no reason at all to disturb the learned Magistrate’s sentence and this appeal is totally without merit and the appeal is therefore dismissed.

Ms Peggy Lo, GC, of Department of Justice, for Respondent

The Appellant, in person