Ng Cham-chuen v. The Queen
Read the full judgment text of CACC 80/1982 on BabelCite. This Court of Appeal judgment was delivered on 12 February 1982 before Hooper J.
Criminal law – road traffic – speeding – second conviction – disqualification of driver – exercise of discretion – section 23, Cap. 220 – section 15(2), Cap. 220 – whether magistrate acted on wrong principles – circumstances of the offence – effect on offender – previous conviction – sentencing 'for the record' rather than 'for the offence' – occupation of driver – professional driver – CHEUNG Chi-shing v. The Queen (1964) H.K.L.R. 1 – SIN Yiu-kong v. The Queen, Criminal Appeal No. 416 of 1979. The appellant pleaded guilty to driving a private car on Castle Peak Road at 40 m.p.h. in a 30 m.p.h. zone at 10.45 p.m. on 8 July 1981. He was fined $400 and disqualified from driving for three months. On appeal against the disqualification, the court considered the proper approach to the exercise of the discretion to disqualify under s.23, Cap. 220 for a second speeding conviction. The court held that disqualification is a very serious penalty, especially for a professional driver, and is primarily for the protection of the public. Before exercising the discretion to disqualify, the magistrate must consider (1) the circumstances of the offence, (2) the effect of the order on the offender (including his occupation), and (3) the date of the previous conviction. The magistrate should not sentence 'for the record' rather than 'for the offence' (per SIN Yiu-kong v. The Queen), and a blanket policy of treating all drivers as a single class of 'motorists' regardless of occupation is inconsistent with the proper exercise of discretion (per CHEUNG Chi-shing v. The Queen). The court further held that the six-month disqualification under s.15(2), Cap. 220 is a statutory minimum applicable to a third conviction, and selecting three months as a 'mid-point' between 0 and 6 months misapplied the statutory scheme. The fact that the previous conviction was recorded after the date of the present offence also reduced its weight as a sentencing factor. The appeal was allowed and the disqualification order was set aside; the fine was upheld as the appellant had been legally represented and had not applied for suspension of the order pending appeal under s.23(2), Cap. 220.
Legal issues: Proper exercise of discretion to disqualify for a second speeding conviction under s.23, Cap. 220 · Appropriateness of selecting three months as the disqualification period
Outcome: Appeal allowed; order of disqualification set aside; fine of $400 upheld.
Cited by 6 cases
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CACC000080/1982
BETWEEN
_________ Coram: Hooper, J. Date: 12 February 1982 ---------------------------------------------------------- ORAL JUDGMENT REDUCED INTO WRITING ---------------------------------------------------------- 1. The appellant was convicted on his own plea of driving a private car on a road at a speed exceeding the 30 m.p.h. speed limit. The speed he drove was admittedly 40 m.p.h. He was sentenced to pay a fine of $400 and was also disqualified for driving all vehicles for a period of three months. 2. Mr. Hui who represents the appellant has no quarrel with the fine, but urges that the order of disqualification be set aside on the grounds that it was made on wrong principles. 3. The learned magistrate in his Statement of Findings sets out the matters which influenced him in making the order for disqualification as follows :-
4. Mr. Hui in support of his submission that the magistrate acted on wrong principles refers me to the case of CHEUNG Chi-shing v. The Queen(1) and in particular to the words of Blair Kerr, J., at page 5
and he argues that the personal considerations of the appellant should have been taken into consideration, and that it was wrong to treat all drivers simply as motorists. He submits that not much attention should be given to their rank or status, but that their occupation is definitely one thing the magistrate should consider, and in particular the magistrate should have considered the occupation of the appellant in the present case. 5. He also argues that the magistrate should have taken into consideration the circumstances of the offence, the manner of driving at the particular time, whether there was any resulting accident or casualty. Each case, he says, must depend on its own facts. For speeding offences there should be no hard and fast rule for disqualification for the second time. 6. Mr. Hui complains that the magistrate disqualified the appellant for his record, rather than for this offence and refers me to the case of SIN Yiu-kong v. The Queen(2) when Leonard, J., (as he then was) said :
and later,
7. Of course that case was concerned with a mini-bus driver prosecuted for picking up passengers in a restricted zone. 8. The magistrate clearly has a discretion to disqualify under section 23, Cap. 220 for a second conviction of speeding, if the second conviction is not more than three years after the date of the first conviction. 9. He cannot disqualify for a first conviction for speeding because that is expressly precluded. His discretion therefore only arises on a second conviction for speeding. 10. What are the considerations for exercising his discretion to disqualify? It is my view that because of the very serious nature of this penalty, he should consider very carefully before disqualifying (1) the circumstances of the offence; (2) what effect such an order will have on the offender; and (3) he may have regard to the date of the previous conviction. 11. It is clear that the magistrate did not ascertain or take into consideration any of the circumstances of the offence except so far as they were revealed in the information itself or so far as they were within his personal knowledge of the area. In some cases that may be sufficient in the absence of anything in the nature of justification. For example if that information revealed that the appellant was driving at 100 m.p.h. up Nathan Road at night time and no good reason therefore was given. However, in the present case I do not consider that the magistrate had sufficient information before him to justify exercising his discretion to disqualify. The facts before him were that on the 8th of July 1981 at 10.45 p.m. the appellant drove a private car at 40 m.p.h. on Castle Peak Road at lamp post No. 5416 (i.e. 10 m.p.h. in excess of the speed limit). The magistrate had his own knowledge that Castle Peak Road is a busy arterial road at most times of the day and night. That does not mean that there are not times when Castle Peak Road is clear. That is all the information the magistrate had. He couldn't have known what the conditions prevailing at that time actually were, the lighting conditions, the road conditions, or the state of the traffic. 12. The magistrate did not pay much attention to time. However, in my view that may have been very important depending upon the lighting conditions at the time and the number of people or other vehicles on the road and the road conditions. 13. So far as the effect such an order would have on the appellant the magistrate had no information to go on whatsoever. The fact that the appellant had 20 years driving experience is neither here nor there and would weigh very little in the scales, but the effect that such an order would have on this appellant having regard to his occupation is a proper factor for consideration and should not have been brushed aside. 14. However, this aspect was explored before me. With the consent of the Crown, the appellant gave evidence on this aspect but I am bound to say that there was nothing revealed in that evidence which would have led me to conclude that the appellant would have suffered any special hardship because of his occupation. It appears that since the order was imposed all he has suffered has been inconvenience. 15. It is my view that the magistrate may properly take into consideration the date of the previous conviction. In this case through no fault of his the magistrate was given the wrong information that there was one previous conviction in July, whereas it is conceded before me to be common ground that the previous conviction was on the 27th of October 1981 in respect of an offence committed on the 1st of July 1981. The magistrate was clearly influenced by the fact that on the information before him the previous conviction was 5 months before the conviction in the present case. 16. The fact that there is a previous conviction is, in my view, a proper factor for consideration, but it would be very much more persuasive in this context if the date of the previous conviction (as opposed to the date of the offence) occurred a short time before the commission of the offence for which the offender was being sentenced (as opposed to the date of the conviction). 17. A second offence committed a short time after a conviction for a similar first offence would be a proper factor for disqualification. 18. In this case the first conviction actually occurred after the commission of the offence for which the magistrate was sentencing the appellant. (The conviction occurred on the 27th of October 1981, whereas the offence for which the appellant was being sentenced was the 8th of July 1981.) 19. Not only must the evidence of the facts before the magistrate show circumstances which justify the imposition of a disqualification order on the defendant (whether by way of admission or some other acceptable form of proof) but also there must be evidence of circumstances which justify the length of that disqualification. 20. The length of disqualification under section 23, Cap. 220 may be in excess of the minimum statutory mandatory disqualification period under section 15(2). It may be "for such period as the court or magistrate thinks fit" or "for a period which is not less than that minimum period". 21. It is not for this court to substitute its discretion for that of the magistrate so long as the magistrate takes into consideration proper factors. 22. However, I do not think it was a proper exercise of his discretion that the magistrate should select three months as the period of disqualification having regard to the fact that it was the mid-point between 0-6 months (that is the statutory minimum disqualification under section 15(2)). 23. The six months statutory disqualification is only a minimum period on a third conviction. The facts of an individual case even for a second conviction may justify a disqualification for a longer period than that. 24. Taking all things into consideration I allow this appeal and set aside the order for disqualification. I see no reason to reduce the fine. Nor do I think it appropriate to set it aside on the basis that the appellant has now had the disqualification order operating against him for a period of some two months. He has been legally represented at all stages and it has been within his legal province to apply for that order to be suspended pending appeal under section 23(2), Cap. 220. This he did not do and I do not consider that it would be appropriate to set aside the fine because he did not take a particular course which was open to him and thereby incurred inconvenience.
(1) (1964) H.K.L.R. 1 (2) Criminal Appeal No. 416 of 1979 Representation: Mr. Herman H. Hui (Woo, Kwan, Lee & Lo) for appellant Mr. G. Jackson, Crown Counsel, for Crown/respondent N.B. In addition to the order setting aside the disqualification I also ordered that the particulars of this offence should be endorsed on the appellant's licence and referred to a decision in an earlier appeal. It has since been brought to my attention that section 26 has been repealed and so this additional order is a nullity and has been edited out of the above to save confusion.
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