Sin Cho-ming v. The Queen

CACC000108/1972

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 108 OF 1972

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Coram: Leonard J. in Court.

Date of Judgment:

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JUDGMENT

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1. This appeal was against a disqualification from holding or obtaining a driving licence for private cars for a period of 6 months. The appellant was charged in the Court below with driving a private car, at Waterloo Road near York Road on the 2nd August 1971 on a restricted road at a speed exceeding 30 m.p.h. The note of the learned Magistrate insofar as it is relevant reads:

"Plea; guilty. 49 m.p.h. - 2 similar convictions: May 1964 and September 1971. Fined $50 and $80 respectively. Record admitted. $140 and licence disqualified for 6 months but limited to driving all private cars."

The grounds of appeal were that firstly the sentence of disqualification was wrong in law; secondly, the learned Magistrate misdirected himself on the proper interpretation of section 15(2) of the Road Traffic Ordinance Cap. 220; thirdly, alternatively the learned Magistrate failed to direct himself to the proviso of the said section 15(2) of the Road Traffic Ordinance Cap. 220. Counsel for the appellant with the agreement of Crown counsel requested leave to argue the case on a somewhat wider basis and since the learned Magistrate had relied on his general discretion to impose disqualification as well as on section 15(2) and because of the general ground of appeal that the sentence was too severe, I permitted this. It will be noted that neither the summons nor the facts recorded specify the time of day at which the car was driven at an excessive speed, nor do I have any information as to the state of traffic, the weather or the various other factors with which one must concern oneself when considering the gravity of an offence of driving at an excessive speed. In the course of his statement of findings, the learned Magistrate said:

"This particular locality is a favourite place for radar traps. Traffic in that area has emerged from the traffic jams normally encountered between the Prince Edward and Boundary Road intersections. For this reason there is more opportunity to speed in that area. However it is not far short of the intersection of Junction Road where there is a three way set of traffic lights and where traffic tend (sic) to change lanes abruptly to enable them to get into the most advantageous lane. I make these observations and indicating my local knowledge of the area - And to show that speed in this area can readily become dangerous."

I also have some local knowledge of the area and it is my recollection that there is at least one set of traffic light between Boundary Street and Junction Road as one goes north on Waterloo Road. We do not of course know that the appellant was going north but this appears to have been assumed by the learned Magistrate and may be taken to be the fact. I cannot, however, take it to be the fact that there was any other traffic in the vicinity or that the appellant drove dangerously or indeed that speed was dangerous at the time the appellant committed the offence since there was no admission before the learned Magistrate to this effect. The only admission on the record was that the defendant was driving at 49 m.p.h. on the date in question at Waterloo Road near York Road. The fourth paragraph of the statement of findings given by the learned Magistrate reads:

"Section 15(2) of the Road Traffic Ordinance requires an absolutely mandatory disqualification for a period of not less than 6 months unless this last offence can be brought within the proviso to that subsection. However even where the offence comes within the proviso the word "may" indicates merely a discretion in no way imposes a duty or obligation normally to apply the proviso and treat the then offence as a first offence."

By the second sentence quoted, I take him to mean that a Magistrate has a discretion to disqualify in a case of speeding where the offender has a previous conviction and with this, of course, I agree provided the facts merit disqualification. However owing to the paucity of facts given to the learned Magistrate as recorded by him I cannot agree that this was a case for disqualification in the exercise of discretion. The approach adopted by Blair-Kerr J. in Cheung Chi Shing v. Reg. ([1964] H.K.L.R. 1) where he was dealing with a charge of careless driving appear to me to be applicable also to a charge of driving at an excessive speed. The state of traffic on the road at the time, the conditions of the raods, the time of day, all these are factors to be taken into account for the purposes of sentence. In the very words used by Blair-Kerr J.:

"So far as the record goes I find it difficult to say that this is a bad case, the sort of case which calls for disqualification ----disqualification is primarily for the protection of the public; but it also operates a very severe penalty."

There is on the record not sufficient to persuade me that the learned Magistrate should have disqualified unless he was under a duty to do so by reason of the operation of section 15(2). That subsection and its proviso read as follows:

Section 23 of that Ordinance provides (inter alia) that:

"A first conviction for driving a motor vehicle on a road at a speed exceeding a speed limit imposed by any enactment in respect of such road or in respect of that type of motor vehicle or a second such conviction the date whereof falls more than 3 years after the date of the first conviction, shall not render the person convicted liable to be disqualified from holding or obtaining a licence."

In May 1964 the appellant was convicted of speeding. He was convicted again in September 1971, and he was convicted for a third time on the 3rd of December 1971. It is from the sentence imposed for this third conviction that he appeals. We do not know the date of the commission of the offence in respect of which he was convicted in September 1971. It may for all we know have occurred in August 1971. Furthermore the conviction of September 1971 although a second conviction could not have rendered the appellant liable to be disqualified for the date of it fell more than 3 years after the date of the first conviction that in 1964. The learned Magistrate went on to say:

"I cannot myself treat the conviction of September 1971 or this matter as a first offence. Nor am I entitled in the absence of any official notice to that effect to assume that a Magistrate dealing with the September conviction treated that case as a first offence. Indeed the fine of $80 indicated that he did not do so and the file which I have since seen shows that the defendant was warned of the consequences of a third offence. The defendant was warned of the consequences of a third offence. The defendant now comes before me on a third offence and the evidence is that he was travelling at a seriously excessive speed. In my view I was obliged to disqualify him. Indeed if disqualification was not a mandatory but a possible penalty, conviction for such a speed following so shortly after the last conviction would in my mind disqualification."

Pausing to remark thatthe file to which the learned Magistrate refers was not an exhibit nor a part of the record before me, I would point out that the only evidence on the record is that the appellant was driving at 19 m.p.h. in excess of the permitted speed. Whether this was a seriously excessive speed or not in no way appears from the record. The second conviction occurred in September 1971. The offence the subject of the charge before the learned Magistrate occurred on the 2nd August 1971 that is approximately a month before the second conviction. As to this the learned Magistrate comments:

"It is true as the defendant said that he had committed this further offence before his September conviction, but this is no help to him and in any event it is clear that he knew police action would be taken on the second offence before he committed the present offence."

It is possible that the offence in respect of which the conviction was registered in September was committed after what the learned Magistrate refers to as "this further offence". The offence the subject of the charge in the present proceedings may not have been in point of time the "third offence" but the second offence. It may have not only antedated the September conviction but it may also have antedated the offence leading to the September conviction. This is unlikely but by no means impossible. We just do not know the date of the offence leading to the September conviction. However Mr. Ching, counsel for the appellant, prefers and in my opinion rightly prefers, to argue that the offence now charged was not a "third or subsequent offence" within the meaning of section 15(2) because it occurred before the second conviction rather than because we do not know the date of theoffence leading to the second conviction. He suggests that before a conviction can be for "a third offence" the offence must be committed after two previous convictions.

2.For this contention he relies on Rex. v. South Shields Licensing Justices 1911 2 K.B.1. That case concerned the interpretation of sections of the Licensing Act 1872 which section prescribed progressively increasing penalties "for the second offence" and "for the third and any subsequent offence" of exposing alcoholic liquor for sale at a place where he was not licensed to sell the same. The section also laid down that any person convicted of "a second or any subsequent offence" under this section should forfeit his licence. It was held that the phrase "second or subsequent offence" means a second or subsequent offence committed after a previous conviction or convictions and that the licence should not be forfeited upon a second conviction committed before the conviction for the first offence. Lord Alverstone C.J. commented:

"The enactment aims at a persistent breach of the law after a previous conviction, and though the section does not in terms say that the offence to be punished with the heavier penalty must be one committed after a previous conviction for a similar offence, it is not reasonable to say that where a person commits three offences under the section on the same day a different penalty attaches to each."

Mr. Ching argues that section 15(2) requires a similar construction and contrasts the wording of that section "convicted of a third or subsequent offence" with section 23 which refers to a "first conviction" and to a "second such conviction" not to "a conviction for a second such offence". Rex v. South Shields Licensing Justices is cited in Burke's Encyclopoedia of Road Traffic at p. 1023 in a note rendered irrelevant by the Repeal of subsection 4 of section 4 of the Road Traffic Act 1960 (which deals with speeding) as authority for the proposition that "second offence" means an offence committed subsequent to a conviction for an earlier offence and in British Doughment Co. Ltd. v. Dale ([1944] 1 K.B. 228) (a case under the Food and Drugs Act 1938) Viscount Caldecote C.J. refers to an offence as being "subsequent within the principles laid down in Rex v. South Shields Licensing Justices" (supra) Mr. Moshinshy for the Crown suggests that this interpretation would strain the wording of our Ordinance by requiring words to be read into section 15(2) that the legislature has not inserted and has referred to the danger of the judiciary becoming legislative that is a danger from which I do not shrink when Lord Alverstone C.J. holds my right hand and Viscount Caldecote C.J. holds my left. The legislature cannot be regarded as having intended to letter the disaction as to disqualification imposed in Magistrates by section 23 so as to make it obligatory to take away a man's licence for the third of three speeding offences without giving to him the warning implicit in a prior conviction. I, therefore, hold that the learned Magistrate was not obliged to disqualify in this case and that in default of a statutory duty to disqualify, he should not have done so because of the paucity of information supplied to him. This appeal is therefore allowed insofar as the order for disqualification is concerned.

Representation: