Fung Siu-kwan v. The Queen

Case No.CACC 1057/1976

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC001057/1976

IN THE SUPREME COURT

	Criminal Appeal
	1976 No. 1057

BETWEEN
	FUNG Siu-kwan	Appellant
	and
	THE QUEEN	Respondent

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Coram: Morley-John, J.

Date of Judgment: 22nd October, 1976.

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JUDGMENT

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1. In this case the appellant who was not legally represented before the magistrate, according to the record of the proceedings, pleaded guilty to the offences of driving a motor vehicle without a valid driving licence (it having expired by eleven days) and driving without third party insurance. In his statement of findings the learned magistrate recorded:

"His licence had expired on 11th August 1976 thus invalidating any third party insurance cover."

2. On the charge of driving without third party insurance the learned magistrate fined the appellant $250 or fourteen days in default and disqualified him from holding or obtaining a driving licence for all vehicles for a period of twelve months. It is against this sentence that the appellant now appeals on the grounds that it is too severe. The severity complained of being the disqualification. As I have just stated the learned magistrate in his statement of findings said that the appellant's licence had expired on the 11th August 1976 thus invalidating any third party insurance cover. As I have explained in my judgment in the case of CHEUNG Kwong-sui v. Reg. ⁽¹⁾ the mere fact that a driver's licence to drive a motor vehicle has expired does not automatically cause that driver to be driving without third party insurance cover. In his statement of findings the learned magistrate went on to say:-

"In addition to the monetary penalties imposed I also disqualified the appellant from driving all vehicles for a period of 12 months on the second offence. I did this as the appellant had failed to produce any evidence of third party insurance in respect of the vehicle involved or himself. However, I advised him that if he applied on review within 14 days and produced such evidence I would lift the disqualification. Unfortunately, he failed to apply for a review of sentence within the statutory time limit and thus my hands were tied. In the circumstances I granted him leave to file notice of appeal out of time which he has done, and pending the outcome of the appeal I have suspended the disqualification."

3. If the learned magistrate thought that the appellant was in a position to produce evidence to satisfy him that he, the appellant, was in fact covered by third party insurance I cannot understand why the learned magistrate did not adjourn this case for the appellant to produce such evidence. Also if there was evidence of third party insurance the appellant's plea of guilty would appear to have been equivocal and should not have been accepted by the learned magistrate, least of all, should the learned magistrate have passed sentence on the appellant at this time.

4. The learned magistrate concludes his statement of findings by saying:

"I gather the appellant's main cause of grievance is the disqualification and as I am now satisfied that the vehicle was covered by third party insurance and the appellant was permitted by the registered owner to drive it on the day of the offence I respectfully suggest that the appellate court allow the appellant's appeal to the extent that the order of disqualification be set aside."

From this it would appear that the learned magistrate intends that the fine of $250 he also imposed on the appellant for driving without third party insurance should remain even though the learned magistrate has said that he is satisfied the appellant was not driving without third party insurance cover.

5. In view of the above and also in view of my judgment in the case of CHEUNG Kwong-sui v. Reg. counsel for the Crown suggested that I remit this case to the learned magistrate in the same way that CHEUNG's Case was remitted. The appellant pleaded guilty before the learned magistrate and this was accepted by him but I am satisfied that such was not an unequivocal plea of guilty and I therefore grant leave to the appellant to appeal against conviction out of time. This appeal is allowed and the case is to be remitted to the magistrate with a direction to allow the appellant to reverse his plea to one of not guilty and to try the case. I further order that the fine of $250 be remitted to the appellant if it has in fact been paid.

sd (M. Morley-John, J.)

Representation:

Appellant in person.

Mr. N. Macdougall for the Crown/respondent.

(1) Cr. App. No. 1060 of 1976