Lai Wai Ket v. The Queen
|
CACC000678/1981
----------------- Coram: Liu, J. in Court Date of Judgment: 28th August 1981. ----------------- JUDGMENT ----------------- 1. Before the learned Magistrate, the appellant faced two charges; one for driving a private car while being disqualified; a further charge for using the same vehicle without any third party insurance. For the latter charge he was fined $2,500, disqualified for driving all vehicles for 12 months and was given 2 months' imprisonment suspended for a period of 12 months. For driving without a valid driving licence while still being disqualified, he was given a month's immediate custodial sentence. No complaint was made to the linking of an immediate custodial sentence with a suspended sentence. It was only against the prison sentence imposed by the learned Magistrate on the former charge that the present appeal was brought. 2. Counsel has drawn my attention to various decisions of the Court sitting on appeal in cases of like or similar nature, but obviously each case will have to be decided on its own merits. There is no doubt as to what the principles are; nor is there any possible misconception as to the proper manner in which these legal principles should be applied. 3. The fact in this appeal arose as a result of the driving of a jeep conveying the appellant and some of the colleagues in his working team after overtime. The appellant had been disqualified for driving private motor cars for a period of twelve months on 25th November last year. Therefore, at the time when he drove this jeep registered as a private motor car, it was decidedly unlawful. He was stopped by a party of police and found to be carrying excess passengers. He was lucky enough to be given only a fixed penalty ticket. Two days later, the appellant was caught driving a private motor car again in the very period of his disqualification. For that offence, I am told, he was fined a total of $5,500 and was disqualified for 24 months from driving all classes of vehicles. For driving whilst being disqualified, the appellant was also given a month's sentence of imprisonment suspended for 24 months in this offence later in time. 4. Therefore on the face of it, it would seem that in his immediate custodial sentence the appellant was given a heavier punishment for a first offence committed two days earlier on the 23rd April. But obviously he had only himself to blame. He could have, for instance, invited the learned Magistrate, on his guilty plea to the latter offence for which he was summonsed earlier, to take into consideration his past driving habits whilst still being disqualified. 5. But treating the two separate offences before the two different Magistrates as technically both the first conviction for driving during a period of disqualification, as we must do in the peculiar circumstances of this case, there is a disparity in sentencing. However, the appellant would be the last in the known circumstances to complain of such disparity. 6. For the earlier occasion on which he was given a fixed penalty ticket, he excused himself for driving the jeep whilst still being disqualified in more or less an act of necessity after overtime work, feeling somewhat responsible for having his colleagues conveyed from the reservoir site. But then two days later when he was caught driving a private car, that conduct clearly threw some doubt on the appellant's previous attitude. It has to be made plain that it is not sought to take note of an event subsequent to the appellant's first offence, but this second offence committed two days later would make any pretence of an occasional lapse less convincing. In the circumstances, it can hardly be said that the one month prison at sentence imposed on the appellant by the learned Magistrate is either wrong in principle or inappropriate in the circumstances. But counsel has urged upon me that even if I should come to that conclusion, consideration must still be taken as to whether the circumstances in this case would justify a suspension. 7. The Court was informed that the appellant has otherwise been of a good character, a person of a keen sense of responsibility. The Court was also informed that not only the General Manager of the Company for which he works, Mr. Tang is prepared to come forward to testify on his behalf, but also a more closer colleague and superior, the Project Manager, Mr. Booth is likewise prepared to come to Court and give supportive character evidence. 8. The appellant is a young man, single, living with his parents. I am not prepared to accept counsel's submission that the appellant was not aware of the serious repercussion this offence would bring in the sense of possibly attracting a prison term. However, the appellant had his initial shock before the learned Magistrate when one month's sentence of imprisonment was passed. He has lived through a period of anxiety, pending the prosecution of the present appeal. This is a borderline case in view of the circumstances and the preparedness of his superiors, not one but two, to come forward to testify on his behalf as to his personal character and responsibility. I find it just sufficient in all the circumstances to do what can best be described as an act of mercy. Giving the appellant the maximum benefit of doubt, I would view the extenuating circumstances in the best favourable light and accede to the request of counsel that his term of imprisonment of a month be suspended. To that extent and not entirely without some reluctance, I allow the appeal and order that the one month's term of imprisonment to be suspended for a term of period of 2 years.
Representation: Mr. McClelland, counsel for the Crown. Mr. Y.C. Mok instructed by Louis Kong & Co. for the Appellant. |