HKSAR v. So Po Fuk

HCMA 312/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 312 OF 2005

(ON APPEAL FROM KCS 12751 OF 2004)

____________

BETWEEN

____________

Before: The Honourable Mrs Justice V. Bokhary in Court

Date of Hearing: 12 July 2005

Date of Judgment: 12 July 2005

_______________

J U D G M E N T

_______________

1.On 1 April this year in the Magistrate’s Court at Kowloon City, Bruce McNair, Esq. sentenced this Appellant on two summonses to which he had pleaded guilty.  One was for using a motor car without third party insurance while the other was for driving that car while it was not licensed.

2.At the time when he was sentenced, the Appellant was serving a sentence also for using a vehicle without third party insurance, and he still had 10 days of that sentence left to serve.

3.The Magistrate took the view that, bearing totality in mind, 12 months’ imprisonment would be the appropriate total sentence after trial on the two summonses with a one-third discount for the guilty pleas.  That gave 8 months’ imprisonment.  The Magistrate sentenced the Appellant to 8 months’ imprisonment on the without third party insurance summons; sentenced him to 4 months’ imprisonment on the not licensed summons; made those two sentences concurrent with each other; but made them consecutive to the 10 days left to serve on the earlier sentence.

4.Four perfected grounds of appeal against sentence have been filed on the Appellant’s behalf.  They read:

“	1.	In all circumstances, the starting point of 12 months (which is the maximum sentence for the charge of driving without third party risks insurance under Section 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272) is too high;
	2.	Further or alternatively, the sentence of 8 months imprisonment is out of line with the normal sentences for a case of such nature;
		HKSAR v. Wong Chi Ming HCMA 510 of 1999;
		HKSAR v. Cheung Chi Wah HCMA 787 of 2001;
		HKSAR v. Chan Kai Sing HCMA 1258 of 1999;
		HKSAR v. Wo On Sonya HCMA 1282 of 2004
	3.	The learned magistrate erred in not having regard or sufficient regard to the fact that there was no aggravating features such as the commission of driving whilst disqualified or other driving offences or causing injuries to other road users at the same time of the offence;
	4.	In all the circumstances, the sentence is manifestly excessive or too harsh.”

5.Although it is accepted that the Appellant actually had six previous convictions for using a vehicle without third party insurance and 23 for driving an unlicensed vehicle, the Magistrate said that the Appellant had five previous convictions for using a vehicle without third party insurance and two for driving an unlicensed vehicle.  Quite rightly the Magistrate bore that in mind and described the Appellant as “a regular recidivist offender who flagrantly breaks the law”.

6.Having considered with care the arguments advanced by counsel for the Appellant, I have come to the conclusion that counsel for the Respondent is correct in submitting, in effect, that the total sentence passed on the Appellant, while on the high side, is nevertheless within the appropriate range and ought not to be disturbed.

7.Accordingly, I dismiss the appeal.

Mr Hung hing-shek, Andy, instructed by Director of Legal Aid, for the Appellant

Mr Simon Tso, SGC of Department of Justice, for the Respondent