Siu Wing-shing v. The Queen
Read the full judgment text of CACC 516/1979 on BabelCite. This Court of Appeal judgment was delivered on 29 June 1979.
1. The appellant SIU Wing-shing appeals against sentences imposed upon him by the magistrate at Tsuen Wan.
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CACC000516/1979
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----------------- Coram: Roberts, C.J. Date of Judgment: 29 June 1979 ----------------- JUDGMENT -----------------
1. The appellant SIU Wing-shing appeals against sentences imposed upon him by the magistrate at Tsuen Wan. 2. The appellant was charged with three offences: firstly, driving while disqualified, secondly, driving without Third Party insurance and thirdly, with failing to report after a traffic accident. 3. He was sentenced to be detained in a detention centre on the first charge, to be convicted and discharged with a two year disqualification on the second charge and to be convicted and discharged with a one year disqualification on the third charge. 4. The facts of the case, which were admitted by the appellant, were that on the 4th March of this year, at approximately 10.45 in the evening, the appellant was riding a motor cycle along the Kwai Chung Road towards Kowloon. When he was close to the container terminal at Kwai Chung his motor cycle knocked down and fatally injured a 50 year old pedestrian, who was crossing the road from the centre island. 5. After the accident, the appellant fled from the scene, leaving his motor cycle behind. The following day, when he sought medical treatment at the Princess Margaret Hospital, he was arrested. When the police investigated the matter, they discovered that, the appellant had been convicted of dangerous driving at the Tsuen Wan Magistracy, about six weeks before the accident, and disqualified from driving any motor vehicle for a period of four months. 6. The appellant's counsel submitted that the magistrate was wrong to impose a sentence of detention in a Detention Centre, on the ground that such a sentence is not authorized by law for the offence of driving whilst disqualified contracy to section 25 of the Road Traffic Ordinance. 7. Section 25 reads as follows:-
8. This is the appellant's first conviction for an offence against section 25. Therefore, as I interpret the section, the court must impose a sentence of not less than one month's imprisonment, unless of the opinion that, having regard to the special circumstances of the case, a fine would be adequate for the offence. 9. Although the section does not say so in terms, I infer that, if the court were satisfied that (in the special circumstances of the case) a fine would be adequate for the offence, that a fine is what the sentence should be. Thus the section leaves the court with two choices only, imprisonment for a minimum of one month, or a fine where there are special circumstances. 10. The charge sheet describes the appellant as being 21 years of age. However, a memorandum from the Commissioner of Prisons, dated 15th May, says that the appellant's birth certificate shows his date of birth as the 14th October, 1958. The appellant was therefore under the age of 21 at the time of these offences. 11. Section 109A of the Criminal Procedure Code restricts the powers of courts to impose sentences of imprisonment on persons over the age of 16 and under the age of 21 years unless the court is of the opinion that no other method of dealing with the offender is appropriate. 12. It is necessary, therefore, to decide whether, when a person under 21 years of age is convicted of an offence against section 25 of the Road Traffic Ordinance, he must be imprisoned (unless there are special circumstances) or whether the court may have regard to section 109A of the Criminal Procedure Ordinance. 13. The same point was considered by a Divisional Court of the Queen's Bench Division in the case of Davids on-Houston v. Lanning(1). The Lord Chief Justice, Lord Goddard, delivering the judgment of the court said that:
14. Lord Goddard went on to say that if the justices meant that they could in any case ignore the provisions of the Criminal Justice Act, 1948, s.17, they were wrong, though he did not think that that is what they meant. He added, at p.739, that, with regard to a boy over seventeen, the justices have to apply their minds to the provisions of section 17(2) of the Criminal Justice Act 1948. 15. It is to be observed that the effect of section 7(4) of the Road Traffic Act 1930 was that the penalty for driving while disqualified must be imprisonment unless there were special circumstances. Section 17(2) of the Criminal Justice Act 1948 was in the same terms as section 109A (1) 1955 2 All E.R. 737 of the Hong Kong Criminal Procedure Code, which obliges a court to form a view, before sending a person over 16 and under 21 to prison, as to whether any other method of dealing with the offender is appropriate. 16. In my view, this must mean any other method of dealing with the offender which is open to the court in the particular case before it, that is to say, where there is a conviction under section 25, imprisonment or a fine. It would not therefore be correct for a magistrate to impose a Detention Centre Order and he must consider whether he should impose imprisonment or a fine. 17. Having reached this conclusion by this route, it is unnecessary for me to consider the argument advanced by counsel for the appellant that the magistrate could not impose a Detention Centre Order because such an Order cannot be made where a sentence is "fixed by law" and that because section 25 imposes a mandatory sentence of imprisonment or a fine that that is a "penalty fixed by law". In passing however, I observed that if Section 25 is indeed a sentence fixed by law, I could not have heard this appeal at all, since section 113(2) of the Magistrates Ordinance does not allow a person who pleaded guilty before a magistrate to appeal against sentence where the sentence is one fixed by law. 18. Counsel for the appellant further submitted that, if the court decides that there are no special circumstances such as would justify a fine, and that consequently it must impose a sentence of imprisonment for an offence under section 25, it is open to the court to suspend that sentence. 19. He invited attention to the provisions of the Criminal Procedure Ordinance dealing with suspended sentences and, in particular, to the Third Schedule to that Ordinance which contains a list of excepted offences - that is to say, offences for which a suspended sentence may not be imposed by a court. Had it been intended, he argued, that the alternative of suspension should not be available to the courts under section 25 of the Road Traffic Ordinance, section 25 would have been included in the Third Schedule to the Criminal Procedure Ordinance in the list of excepted offences. He cited in support the inclusion of section 33 of the Public Order Ordinance in the Schedule which would have been unnecessary had a suspended sentence not been otherwise open to the courts even though section 33 prescribes a mandatory minimum sentence of imprisonment. 20. I agree with the inference that section 25 of the Road Traffic Ordinance would have been included in the list of excepted offences in the Third Schedule if it had been intended that the alternative of a suspended sentence should not be available in offences under section 25. 21. This conclusion is reinforced by my conclusion that section 109A of the Criminal Procedure Ordinance is applicable, notwithstanding the particular provisions of section 25 of the Road Traffic Ordinance. For if section 109A applies to section 25 (as it does on the authority of Davidson-Houston v. Lanning(1) it would be difficult to find that section 109B of the Criminal Procedure Ordinance does not apply. Both are of a general nature and if one applies, in spite of the mandatory provisions, so must the other in the absence of special words which would exclude it. 22. It is apparent from the record that the attention of the magistrate was not drawn to the special provisions of section 25, by the prosecution, or by counsel who appeared for the appellant at the trial. 23. Had the magistrate been in the position in which I find myself, i.e. that he had to consider whether, in lieu of a sentence of imprisonment, a fine would have been appropriate, I have no doubt that he would have decided that there were no special circumstances to warrant a fine in this case in view of the stern, and justifiable, comments which he made about the conduct of the appellant. He observed that this was not a case of the appellant merely being in error or foolish but that it was a deliberate disobedience of the court's order and that his behaviour was gravely irresponsible if not downright wicked. The magistrate went on to say that he thought that the appellant needed a short, sharp shock. 24. Agreeing as I do with the serious view taken by the magistrate of this deliberate defiance by the appellant, I do not consider that the imposition of a fine is appropriate in this case. Even if it were, I cannot find any special circumstances which would justify it, So the only course available is the imposition of a term of imprisonment in accordance with the provisions of section 25. 25. However, in view of the appellant's age, of his clear record apart from motoring offences, of his good family background and of his history of steady employment, I believe that it would be right to suspend the sentences of imprisonment. I therefore allow the appeal against sentence on the first charge and substitute for the Detention Centre Order a sentence of three months' imprisonment, suspended for two years and dismiss the appeal against the sentences imposed on the second and third charges. Representation: J. Mullick (K.Y. Woo & Co.) for appellant. T.M. Gall for the Crown/Respondent. (1) 1955 2 All E.R. 737 |