HKSAR v. Wong Luen Kin

[English Translation – 英譯本]

HCMA 664/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 664 OF 2007

(ON APPEAL FROM FLSS NO. 950 OF 2007)

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BETWEEN

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Before: Hon Barnes J in Court

Date of Hearing: 15 August 2007

Date of Judgment: 15 August 2007

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JUDGMENT

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1.Between 6 February 2005 and 26 January 2007, the Appellant incurred 15 driving offence points.  On application by the Transport Department, the Magistrate ordered that the Appellant be disqualified from driving for a period of 6 months, in accordance with section 8 of the Road Traffic (Driving-Offence Points) Ordinance, Cap. 375 of the Laws of Hong Kong.  The Appellant now appeals against the order.

Reasons for the order

2.In his Reasons for Sentence, the Magistrate said,

“Counsel for the Appellant submitted at the hearing that the Appellant is a registered social worker and is currently working in a senior managerial post at Caritas Hong Kong.  He lives with his senile mother.  His mother suffers from heart disease and has undergone surgery for colon cancer.  She has difficulty in walking and needs to sit on a wheelchair and consult an orthopedist regularly.  She also has recurrent mental problems and suicidal tendencies.  In cases of emergency or when her mother insists on committing suicide, the Appellant will immediate take her to the Emergency Unit.  Although his mother is taken care of by a Filipino maid at home, only the Appellant can calm her down.  If the maid calls the Appellant, he will immediately rush home and after her mother calms down, he will drive her to the hospital.  Therefore, the Appellant needs a car not for making a living, but solely for taking care of his mother.  Since 1998 when he was disqualified, the Appellant has tried his best to drive carefully.  During the last disqualification period, his mother’s movements were normal and she did not suffer from mental problem.  If the Appellant is disqualified this time, it will certainly bring him exceptional hardship, as he has to drive in person to attend to his mother when she suffers from her illnesses.

On the other hand, the Appellant participates in volunteer work during the summer holidays and in his spare time, and he has to drive to various places.”

3.Later on, the Magistrate said,

“I have carefully considered the reasons given by the Appellant, but none of them constitutes a special reason.  Personally driving home to calm his mother down and then driving her to the hospital is not the only solution to the emergency situation, as other viable and safe methods can be used, in particular the high quality and effective ambulance services available in Hong Kong.  Furthermore, being unable to drive to various places to participate in volunteer work will only cause the Appellant certain inconvenience in terms of transport.  Nor does the fact that the contravention of the law was not serious constitute a special reason.”

Grounds of appeal

4.The Appellant basically reiterated the reasons which his Counsel had submitted before the Magistrate, with a few elaborations.

5.The Appellant said that he had all along been living with his parents.  If an ambulance was called immediately when his mother suffered a relapse of her disease and if he could not return home immediately to pacify her, she would feel uneasy and frightened when she saw the ambulance.  Besides, if his mother’s condition was not too serious and she could be pacified, it would be an abuse of service to call an ambulance.  The Appellant hoped I would understand the situation.

6.The Appellant also said that, when he was doing volunteer work or carrying out official duties during the summer months, if he was unable to drive a car and hence had to take public transport, he would “perspire all over”, and sometimes he would feel embarrassed for being late due to traffic jams.  He also said that, as he is already more than 50 years old, his leg joints would feel uncomfortable if he took the MTR.

7.The Appellant claimed that during the disqualification period, he felt guilty because, despite his worries that his mother might suffer a relapse of her mental disease and become suicidal, he could not pacify and assist her.  He also felt embarrassed for having to explain to those who cared about him the reason for his disqualification.  He requested this Court to impose a lighter sentence.

8.The Appellant has submitted relevant documents prepared by the hospital which indicate his mother’s condition.

The relevant statutory provisions

9.Section 8(1) of the Road Traffic (Driving-Offence Points) Ordinance, Cap. 375 of the Laws of Hong Kong provides as follows:

“… where 15 or more points have been incurred by a person in respect of offences which were committed within a period of 2 years of each other, he shall be liable to be disqualified from holding or obtaining a driving licence in accordance with this section.”

Section 8(3) provides as follows:

“Upon the hearing of the summons and upon being satisfied that the circumstances set out in subsection (1) apply to the person on whom the summons was served, the magistrate shall order him to be disqualified from holding or obtaining a driving licence —

(a)                for a period of 3 months from the date of the order if no previous disqualification has been imposed on him under this Ordinance; and

(b)               for a period of 6 months from the date of the order if any previous disqualification has been imposed on him under this Ordinance,

unless the magistrate is satisfied, having regard to all the circumstances not excluded by subsection (4), that there are grounds to order a shorter period of disqualification or not to order him to be disqualified.”

And section 8(4) provides as follows:

“No account shall be taken under subsection (3) of —

(a) any circumstances that are alleged to make the offence not a serious one;

(b) hardship, other than exceptional hardship; or

(c) any circumstances which, within 2 years immediately preceding the issue of the summons under subsection (2), have been taken into account under subsection (3) in ordering a shorter period of disqualification or not ordering a disqualification. …”

10.The Appellant is being disqualified once again for incurring 15 driving offence points.  In the absence of exceptional circumstances, the Magistrate or the court is bound to order disqualification for 6 months in accordance with the Ordinance.  The Appellant is relying on the circumstance of “exceptional hardship”.

11.“Exceptional hardship” does not mean an extreme degree of hardship, but a kind of hardship different from a usual or ordinary one (see HKSAR v Kong Tak On (江德安) [1999] 1 HKC 399 and HKSAR v. Chan Po Wah, Richard Oliver, HCMA 193/2000).

12.It is the Appellant’s claim that he had to use public transport as a result of the disqualification, which caused him to “perspire all over”; that walking up and down the stairs when taking the MTR caused him discomfort at the leg joints; and having to explain to those who cared about him about why he was disqualified caused him embarrassment.  In my judgment, none of these constitutes “exceptional hardship”. 

13.However, the same cannot be said regarding the Appellant’s mother.  In view of her condition, if the Appellant is able to return home within a short time in order to calm her down, this will prevent the ambulance service from being abused and, more importantly, will help prevent the Appellant’s mother from committing suicide.  This special family situation is different from usual or ordinary cases and, as such, qualifies as “exceptional hardship”. 

14.It has to be made clear that the Appellant’s mother’s condition does not give the Appellant a “licence” that will exempt him from disqualification under any circumstances.  If it is shown that the Appellant knowingly and wilfully continues to contravene the law without regard to the special circumstances of his mother, the court will not re-consider this ground of “exceptional hardship”.

15.I have also taken into account that the Appellant has been disqualified for almost two months.

16.For the above reasons, the appeal is allowed and the disqualification order set aside.

Ms Lily Ho, Senior Government Counsel, for the HKSAR.

The Defendant in person.

Translated by Mr. Edmund Cham, Solicitor.