HKSAR v. Chan Chuk Hon

HCMA623/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.623 OF 2005

(ON APPEAL FROM TMCC 1757 OF 2005)

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BETWEEN

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Before : Deputy High Court Judge D. Pang in Court

Date of Hearing : 25 August 2005

Date of Judgment : 25 August 2005

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J U D G M E N T

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1.The appellant pleaded guilty to Charge 1, ‘Using a Vehicle without Third Party Insurance’ contrary to sections 4(1) and 4(2)(a) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap. 272; Charge 2, ‘Driving while Disqualified’ contrary to section 44(1)(b) of the Road Traffic Ordinance, Cap. 374; and Charge 3, ‘Using an Unlicensed Vehicle’ contrary to sections 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap. 374.

2.He was sentenced to the concurrent terms of 2 months’, 2 months’ and 14 days’ imprisonment for the three charges.  For Charges 1 and 2, he was further disqualified from driving for 18 months and 12 months respectively.  Prosecuted while on bail, his appeal is in respect of the terms of imprisonment only.

3.The admitted facts were that on 12 May 2005, the appellant was pulled over for a suspected traffic contravention.  It was then discovered that the licence of the van that he was driving had expired in January 2004.  Further inquiries established that the appellant had been disqualified from driving for a 12-month period on 4 March 2005, and was therefore not covered by third party insurance.

4.In his reasons for sentence, the magistrate remarked that :

“	4.	The defendant admitted 10 previous traffic convictions I similar to Charge 1 and Charge 3 (his traffic record refers).
	5.	I was told in mitigation that the defendant was a married man with 2 children.  He was a construction company owner and had sent the light goods vehicle for repair.  He then realised that there were a number of tools on board the vehicle which he needed for a project and once the vehicle was repaired he had driven the vehicle so as to get the tools back to his workers for the project.  I was told that any prison sentence may jeopardise his business and I was asked to either fine the defendant or impose a community service order.  It was acknowledged by the defendant that he had used the vehicle in March 2005 when it was uninsured and unlicensed which led to the disqualification order.
	6.	In sentencing I considered the defendant’s driving of the vehicle for essentially commercial purposes was inexcusable.  By driving as he did he put other road users at risk and he also was in contempt of the original court ordered disqualification.
	7.	As the defendant had never been sentenced to a prison term before I was mindful of the dicta of Barnes J in the case of Chan Hon-pui Crim App 913/86 but found in the defendant’s case that the breach of the disqualification order was fragrantly committed and there were no other factors which reduced the defendant’s culpability.
	8.	A fine or community service order were not appropriate sentencing options especially where one considers the recent case of HKSAR V Ng Suen Wai HCMA 375/2003.  At paragraph 31 of the judgment Beeson J says as follows :
		‘Given the serious consequences of breaches of disqualification orders it is clear that Magistrates should consider sentences of imprisonment for all breaches of disqualification; unless very exceptional circumstances exist.’
	9.	There were no exceptional circumstances in the defendant’s case.”

5.I should add that, on my counting, the total number of the appellant’s past traffic convictions comes to 20, as a result of 11 court appearances.  These 20 offences, committed within a period of three years, ranged from speeding, careless driving and carrying excess passengers to failing to comply with traffic signs and failing to report change of vehicle particulars, plus what the magistrate referred to as similar offences, to name a few. 

6.In any event, counsel for the appellant complains that the magistrate erred in not considering the suitability of imposing a community service order (Ground 1), and that the sentence is manifestly excessive (Ground 2).  In essence, the magistrate is criticized for not calling for the relevant report(s) before sending a 50-year old man with no criminal record or record of very poor driving to prison.  

7.With respect, I disagree on both counts.

8.The passage in Chan Hon-pui (ibid) that the magistrate must have in mind is as follows :

“There is therefore ample authority to justify a decision not to impose an immediate custodial sentence for a breach of a disqualification order if a magistrate finds that the offender has never suffered imprisonment before and the breach was not flagrantly committed or, if flagrantly committed, some factor, such as immaturity, for example, operated to diminish culpability.”

9.Putting it another way, if the breach was flagrantly committed and there was no operative factor to diminish culpability, then an immediate custodial sentence should be imposed even if the offender has never before suffered imprisonment.

10.It was in the same sentiment that Beeson J gave her quoted remark in Ng Suen-wai (ibid).

11.In a word, I agree with the magistrate that the breach in the present case was flagrant and that there were no exceptional, not to mention very exceptional, circumstances that would justify a departure from the usual sentence and the calling for report(s).  I do not find the actual sentences imposed to be manifestly excessive.

12.The appeal is dismissed.  The appellant is to be taken down directly.

Ms Fung Mei Ki Mickey, GC of Department of Justice, for the Respondent

Mr Oliver H. Davies, instructed by Messrs Gloria Chan & Co., for the Appellant