HKSAR v. Nicholl Rupert William

HCMA 1076/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 1076 OF 2008

(ON APPEAL FROM KCS 17801/2008 & KCS 17803/2008)

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Before:  Deputy High Court Judge Mackintosh in Court

Date of Hearing:  27 March 2009

Date of Judgment:  27 March 2009

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J U D G M E N T

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1.The focus of this appeal against sentence is not on the fines imposed by the deputy special magistrate in Kowloon City Magistracy on the 21^st November 2008, but on the order disqualifying the appellant from driving for a period of 12 months. 

2.The appellant had pleaded guilty to two offences: permitting a person who was not the holder of a driving licence covering the appropriate class of vehicle to drive a lights goods vehicle (LGV) (sections 42(3) and 42(4) of the Road Traffic Ordinance, Cap 374); and, consequently, permitting that person to use the LGV in question without insurance (sections 4(1) and 4(2), Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272).

3.The fines of $500 for the first matter and $1500 for the second matter are not really challenged.  Indeed, so far as the first offence is concerned, the appeal against sentence has been abandoned.

4.The disqualification on the second offence was a consequence of the provisions of the Ordinance and the magistrate’s findings that there were no special reasons not to disqualify.  It is well known that there is a mandatory disqualification for a “no insurance” offence such as this which must be applied unless the court, “for special reasons thinks fit to order otherwise”.  The minimum period of disqualification, in the absence of special reasons, is 12 months.

5.The admitted facts before the magistrate were that on the 18^th February 2008, police stopped a vehicle on Clearwater Bay Road for speeding.  It was a Land Rover, but was classified as a light goods vehicle and therefore required a class 2 driving licence to drive it.  The registered owner of the vehicle was a company called Orient Access Limited of which the appellant was the proprietor and he was responsible for the vehicle and thus for whoever drove it.  The driver was his employee, Mr Antonio Joao Dias, an Indian national, who was the holder of Hong Kong driving licence covering vehicles in classes 1, 3 and 22, but not class 2.  He was therefore not licensed to drive this LGV.

6.Mr Dias was summonsed for speeding, driving without a valid driving licence and driving without insurance.  The two latter charges were not pursued by the prosecution and he was convicted only of speeding.

7.The appellant was summonsed for the “permitting” offences.  He agreed that Mr Dias was his domestic helper and driver and that he had instructed him to drive at the material time.  There was a policy of insurance in force in respect of the vehicle but it did not cover Mr Dias, given his lack of a class 2 licence.  The admitted facts before the magistrate showed that the appellant told the police that he knew that his driver had a Hong Kong licence but he was not aware whether it extended to class 2 or not.  I am told this morning that the appellant added to that explanation in interview, to the effect that confusion arose because the vehicle in question was used entirely for domestic purposes and was treated as a private vehicle; thus the need for a class 2 licence was completely overlooked.

8.One further relevant fact is that the driver was at the time the holder of an Indian driving licence, issued in Goa, which entitled him to apply to the Transport Department for a class 2 licence.  After this event, he made a successful application to add class 2 to his Hong Kong licence, using his Indian licence.

9.The issue now before this court, on appeal, is whether there are, in the view of this court, special reasons for not applying the minimum disqualification.  The grounds of appeal and the submissions have been framed in terms of alleged error by the magistrate in the use of her discretion; but since this is a rehearing, I am applying my judgment as to what is capable of amounting to special reasons and whether the discretion which exists as to the question of disqualification where special reasons exist, should be exercised in favour of the appellant.

10.I should note that there must always be a factual basis for a finding of special reasons, either by admission or by evidence; and the burden of proof, on the balance of probabilities, rests on the defendant.  Special reasons are to be distinguished from mere mitigation and there is clear authority that courts should not rely on the submissions or assertions of advocates (Jones v English [1951] 2 All ER 853; R v Chang Kwan Woon [1957] HKLR 25).  Unless, as is the situation today, the facts are agreed, the defence should call evidence on oath or affirmation which can be subject to cross-examination.  This was not done in the court below in this case.

11.Following my discussions with counsel today, there is now no dispute about the facts to which I have referred and which are thus admitted.  The highest in the prosecution seek to put the case is that the appellant may have been careless in his failure to check whether his employee’s Hong Kong driving licence in fact covered the use of this vehicle.

12.It is to be noted that it is admitted that, unlike in the recent case of HKSAR v. Dinely and Dinely, HCMA 990/2008, the policy in this case did not in fact cover the driver, despite the fact that he held an Indian driving licence which included the equivalent of a class 2 LGV category.

13.Although the term “special reasons” has never been defined in any statute, it is well established that such reasons must mitigate the offence, must not be a defence, must relate to the commission of the offence itself and must be a matter for the court properly to consider in the context of punishment.  This is the test in Crossan [1939] NI 106, which has been applied ever since, both in the United Kingdom and in Hong Kong.

14.Here the special reasons, which are advanced in combination on the facts, are these:

(a) that at the material time there was in force a policy of insurance in respect of the vehicle;

(b)    that the policy would have covered Mr Dias if his Hong Kong licence had included class 2;

(c) that Mr Dias had obtained his Hong Kong licence on the strength of his Indian licence prior to the events the subject of this case;

(d)    that the Indian licence included vehicles of the class of the vehicle in question, i.e., class 2;

(e) that when the Hong Kong licence was originally issued, it could have been issued in terms relating to vehicles of a similar nature to those to which the Indian licence applied (note: the Hong Kong licence did include motorcycles, which were also covered by the Indian licence);

(f) the failure of the existing insurance policy to apply to the driver that the appellant was permitting to drive, was curable simply by an application to the Transport Department to extend the classifications covered by Mr Dias’s driving licence, which, as subsequent events show, was a formality.

15.It is not, of course, a special reason that the prosecution later dropped the licence/no insurance allegations against Mr Dias, though naturally it has an impact on the justice of the case. 

16.I am satisfied that the matters which I have identified here amount in law to special reasons, and that they should engage the court’s discretion to determine whether it is just to disqualify the appellant for a shorter period or at all.  I have considered whether there should be some period of disqualification based on the appellant’s failure to appreciate that a class 2 licence was required to drive this vehicle.  I accept that in all the circumstances, that can properly be characterised as an innocent oversight against the background of this Land Rover Discovery being used exclusively for domestic purposes.  I conclude that in all the circumstances, the appellant should not be disqualified from driving.

17.It is a different conclusion to that reached by the magistrate who succinctly and clearly set out the reasons for her decision.  I do not criticise her for reaching her conclusion on the material before her.  I take a different view on the merits of the case and accordingly the appeal is allowed to the extent that the disqualification order is quashed.  I am satisfied that the fine should stand.

Mr Vincent Wong, Senior Public Prosecutor, of the Department of Justice, for the Respondent

Mr Gary Plowman, SC, instructed by Messrs JSM, for the Appellant