HKSAR v. Lam Sing Kong

HCMA999/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 999 OF 2007

(ON APPEAL FROM FLS 10150/2007)

____________________

BETWEEN

____________________

Before:  Deputy High Court Judge Line in Court

Date of Hearing:  16 May 2008

Date of Judgment:  16 May 2008

____________________

J U D G M E N T

____________________

1.This is an appeal against sentence.  The appellant was, on his own plea, convicted of driving without insurance.  He was fined and disqualified for a period of 12 months.  The appeal is about whether there are special reasons to reduce or do away with the disqualification. 

2.What happened was this:  that a friend of the appellant's was a gentleman who had a small fleet of cars - some seven of them - used variously for business and pleasure purposes and he was kind enough to lend the appellant one.  The appellant had a minor traffic accident in the course of his use of that car and had to produce the insurance for it.  He went back to the lender of the vehicle who, in turn, looked to his agent.  The agent had received the premium to renew the insurance for the vehicle in question in the previous month but the agent, through default of her own, had failed to pass that on to the insurance company.  So the unfortunate position of being uninsured arose through the fault of the agent.

3.The lender of the vehicle was prosecuted separately and appeared on a different occasion and was represented by counsel and he put forward special reasons and they were found to have been established.  There was good evidence produced and, indeed, I have got affirmations from the agent and the lender of the vehicle in front of me now. 

4.The basis of which the magistrate who heard the appellant's case decided to disqualify and not find of his own volition special reasons, was that he established from the appellant that he had not asked the lender whether or not there was current insurance for the vehicle.  I should have mentioned that the appellant was unrepresented when he pleaded guilty in front of the magistrate.  And very honestly, he said he had not asked but, as far as I can see, he was never asked why not and, of course, Mr Adams today is able to say on his behalf that the reason why was because, in the circumstances, it was unnecessary because it was reasonable to assume that there was insurance for the vehicle because the owner of the vehicle was a respectable man unlikely to break the law, who had a fleet of vehicles and clearly operated in a way that would have them insured.  But even if he had asked if this vehicle was insured, what would the lender have said?  The answer would have been yes. 

5.In the circumstances, it seems to me that it would be hard for special reasons to be established by the lender and not by the user.  I judge there were special reasons here.  I shall allow the appeal and I quash the disqualification. 

Mr Winston Chan, Senior Government Counsel, of the Department of Justice, for the Respondent

Mr Nicholas E W Adams, instructed by Jennifer Lee & Co., for the Appellant