Mak Kam Tin v. The Queen

CACC000534/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.534 OF 1968

(Central Magistracy, Case No. S-23185 of 1968)

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Coram: Briggs J.

Date of Judgment: 9 October 1968

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JUDGMENT

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1. This is an appeal against sentence. The appellant was found guilty of neglecting to obey the orders of a police officer in uniform while driving a vehicle contrary to section 19(1)(a) of the Road Traffic Ordinance.

2. On the evening of May 9th 1968 the appellant was driving a small truck. A constable signalled him to stop because it appeared to him that the vehicle was overloaded with passengers. The appellant neglected to obey the signal. The constable recorded the number of the vehicle in his note book and the appellant was prosecuted.

3. For this he was sentenced to a fine of $100 and he was disqualified for holding a driving licence for six months. This is a severe penalty as the appellant is a professional driver.

4. In the certified copy of the proceedings it is recorded that the appellant had 19 previous convictions for the offence of carrying an excessive number of passengers and one previous conviction for careless driving. In a copy of the proceedings supplied to the solicitor for the appellant this is given as 10 previous convictions an obvious typing slip. In fact the magistrate did take into consideration 19 and not 10 previous convictions whereas it would appear that the appellant has been convicted no less than 28 times for that offence. These offences have all been committed since August 1967. And in no case has the fine imposed exceeded seventy dollars. The maximum penalty for that offence is $1,000 and imprisonment for 6 months. It obviously pays the appellant to carry excess passengers and to pay the fine when caught - the fine being a mere 30-70 dollars. He has shown a total disregard of that aspect of the law and if he is convicted of carrying excess passengers again I hope that the prosecution will draw the attention of the magistrate to this.

5. But is it right that such offences should be taken into consideration when as in this case he is found guilty of neglecting to obey the signal of a constable on duty, for the purposes of an order of disqualification?

6. The purpose of an order of disqualification is to protect the public from careless or dangerous driving and the like. Though it is possible to impose an order for disqualification for any offence brought under the Road Traffic Ordinance, the discretion of the magistrate must be exercised judicially. It is true that the appellant has been convicted of careless driving on one occasion but from the record it would appear to have been but a trivial offence.

7. I think it must have been in the magistrate's mind that here is a person who has not been properly dealt with - and not once only - in the past. But looking at his record as we now know it to be I must confess I have sympathy with that view. When taking a person's record into consideration for the purposes of sentence great care must be taken not to impose a sentence which is in effect a sentence for offences for which he has already been punished. (See Wong Wai Hung v. R.⁽¹⁾).

8. I have with some reluctance reached the conclusion that this is a case where the court should not have made an order for disqualification. However, had the offence for which he was convicted been one of carrying excess passengers and had the whole number of his previous convictions been proved I would not have disturbed the sentence.

9. Acting on the principles laid down by the court for sentences of disqualification in Chan No v. R.⁽²⁾ and Cheung Chi Shing v. R.⁽³⁾. I quashed the order for disqualification in this case.

Representation:

Bernacchi Q.C. and Sarnguinetti (Seu & Liang) for Appellant.

Addison C.C. for Crown/Respondent.

(1) (1965) H.K.L.R. 629.

(2) (1962) H.K.L.R. 576.

(3) (1964) H.K.L.R. 1.