Fan Shui Hing v. The Queen

Case No.CACC 756/1968

Court

Court of Appeal

Date03 Jul 1969

Judge—

Case Document

100%

CACC000756/1968

CRIMINAL APPEAL NO. 756 OF 1968

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BETWEEN
	FAN SHUI HING	Appellant
	AND
	THE QUEEN	Respondent

Coram: Williams, J.

Date of Judgment: 3 July 1969

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JUDGMENT

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1. The appellant was convicted for using a motor vehicle when not covered by third party insurance, and was disqualified for holding any driving licence (except taxi, public car or omnibus) for one year.

2. The only ground of appeal on which he proceeded was that in the absence of special reasons his disqualification should have been limited to the class of vehicle which he was driving at the time. I have not been referred to any authority nor have I found any which supports that proposition. It is well established that if the magistrate decides to limit the disqualification then he may limit it to the class of vehicle which the offender was driving at the time - Fok Wai v. The Queen⁽¹⁾. There is no authority that he must so limit the disqualification.

3. The Crown appeared to take the view that if the magistrate exercises his discretion to limit the disqualification it must be limited to one class which must be the class which the offender was driving at the time.

4. With respect I feel that the Crown's view is not the correct one. The provisions governing disqualification appear in S.23 of the Road Traffic Ordinance, Cap.220 which reads:

"	23(1). .......... the court may order him to be disqualified from holding or obtaining a driving licence for such period as the court thinks fit, and where any provision of this Ordinance requires him to be so disqualified. ........, shall order him to be disqualified. ......
	Provided that:-
	(a) if the court ...... thinks fit, any disqualification imposed under this section may be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed; ......".

5. Section 2(2) of the Ordinance divides motor vehicles into nine classes and it would be rather strange if a magistrate who can disqualify a driver from driving all classes, or just one class if he sees fit, cannot exercise his discretion between those limits. I feel the magistrate must have in mind the nature of the offence, and the objects of the Ordinance as well as the kind of motor vehicle being driven at the time.

6. The facts in this case are that the appellant was using a dual purpose vehicle for the carriage of passengers for hire or reward when not insured for that purpose. He submits that any disqualification should be limited to dual purpose vehicles.

7. In giving his reasons for limiting the disqualification in the manner in which he did, the magistrate said,

" I had in mind the remarks in Leung Wan (No.1) v. R.⁽²⁾ as regards limiting disqualifications to a particular class of vehicle where the offence is one that by its very nature relates to a particular class of vehicle. In the instant case the driving without insurance was occasioned by the fact that the appellant was carrying passengers for hire or reward. The offence could be committed under similar circumstances by appellant with any class of vehicle that was not insured for such user which would on the face of it be vehicles not registered for that user.".

8. The magistrate then made an order which permitted the appellant to drive taxis, omnibus and public cars. In other words it permitted him to drive motor vehicles which were registered for carriage of passengers.

9. Turning now to the object of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, it is to ensure that persons injured by the presence of a motor vehicle on a road shall be insured, and in the case of the business of carrying for hire or reward that the passengers shall be insured. A taxi, omnibus or public car must be registered as such, and no doubt will not be so registered until the authority has seen that the requisite certificate of insurance is in existence covering such user.

10. The magistrate's order ensures that if the appellant carries passengers for hire or reward he will be covered for the purpose, otherwise he will be in breach of the disqualification order.

11. It extends beyond one class of vehicle but S.23, above, permits a limitation by way of description which in effect is what the magistrate has done.

12. I regard the order as entirely appropriate for offences of this nature.

13. The appeal is dismissed.

	(J.T. Williams)
	Puisne Judge.

Representation:

(1) 1959 H.K.L.R. 168

(2) 1964 H.K.L.R. 527