Chan Yat-fai v. The Queen

CACC000843/1979

Coram: Roberts, C.J.

Date of Judgment: 27 September 1979

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JUDGMENT

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Introduction

1. Mr. Chan Yat-fai appeals against a sentence imposed on him by a magistrate in the Tsuen Wan Magistracy.

2. The defendant pleaded guilty to permitting the use of a goods vehicle without a current third party insurance policy, contrary to section 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap. 272).

3. The magistrate convicted him on his plea, fined him $500, found special reasons for not imposing the normal mandatory minimum period of disqualification of twelve months and disqualified the defendant for six months.

4. Section 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 reads as follows -

"If a person acts in contravention of this section he shall be liable to a fine of ten thousand dollars and to imprisonment for twelve months, and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise) be disqualified from holding or obtaining a licence to drive a motor vehicle for such period as the court may determine being not less than twelve months nor more than three years from the date of conviction."

5. From the statement of findings of the magistrate, it is apparent that the only ground on which he was prepared to find "special circumstances" (which I shall equate with "special reasons") and so to reduce the period of disqualific-ation, was that there had been a previous policy on the goods vehicle in question.

6. The magistrate, however, was under the impression that the previous policy had expired on 18th August, 1978, over eight months before the 24th April, 1979 when the offence was committed.

7. In fact, as has emerged during the appeal, there was a third party insurance in force in relation to that vehicle until the 18th April, 1979, or six days before the offence and not eight months.

Special reasons.

8. Has the defendant established "special reasons" within the meaning of section 4(2)(a) of Cap. 272?

9. It has been urged on his behalf that I should find that there were special reasons because there was no intention on his part to break the law and that he was guilty of no more than an oversight or carelessness.

10. Counsel for the Crown has referred me to Surtees v. Benewith ⁽¹⁾ the effect of which is that absence of any intention to evade the law cannot amount to "special reasons" for not imposing a disqualification under a similar provision of the English Road Traffic Act 1930.

11. The next point to be considered is whether forgetfulness can, of itself, amount to a "special reason". As to this Whittall v. Kirby ⁽²⁾ and Rennison v. Knowler ⁽³⁾ make it clear that mere forgetfulness cannot be regarded as a "special reason". I quote from the judgment of Lord Goddard, at p.304 of Rennison v. Knowler ⁽³⁾ -

"It could hardly be even suggested that forgetfulness to renew a policy could be a special reason, and, indeed, this court said in Whittall v. Kirby ⁽²⁾ that it could not."

12. He adds that a man who had forgotten the renewal date of his policy and drives in the honest belief that his policy is still current should be in exactly the same position. "Mere forgetfulness" therefore is not a "special reason".

13. It was then submitted by counsel for the appellant that a "special reason" might be found in the short period of only six days between the expiry of the previous insurance policy and the date of the offence.

14. As to this, Counsel for the Crown drew my attention to Delagoy-Hall v. Tadman ⁽⁴⁾ in which it was argued that if the proportion of alcohol in the driver's blood was only just about the limit at which the offence of driving with blood alcohol concentration above the prescribed limit was committed, this could amount to "special reasons".

15. At page 31 of the report, Lord Parker said -

"Parliament has laid down a statutory limit of alcohol in the blood, 80 milligrammes per 100 millilitres of blood, no more, no less. At the same time it has laid down a mandatory penalty of disqualification. Just as the amount of the excess cannot affect the issue of guilt or innocence so also it is of no consequence in regard to disqualification. As has already been said, there may be facts which constitute special reasons, but the amount of the excess is not one of them: as counsel for the appellants put it, a special reason must be something other than the commission of the offence itself."

16. Later in his judgment, Lord Parker commented that the extent to which the offence is committed may be a consideration when it is decided as to whether or not there should be a prosecution but it cannot be "special reasons" of itself.

17. It is clear that the Legislature, when enacting Chapter 272, meant Section 4 to constitute an offence of a sufficiently grave nature to bring the disqualification provisions into effect in every case, unless there were special circumstances. These have to be not only special to the offender but unusual.

18. The consequences which can follow from the driving of an uninsured motor vehicle are so obvious and so grave that magistrates should be slow to find special reasons for not disqualifying,

19. I have no doubt that the magistrate was wrong in finding that the existence of a previous policy could amount to- special reasons, particularly in view of the fact that, as he then found it, there had been a gap of eight months during which the vehicle had been without third party insurance.

20. Even had he known, as I now do, that the interval was six days rather than eight months, he would not have been correct in regarding even an interval as short as that as special reasons for not disqualifying under Cap. 272.

21. He might, on the other hand, have taken the view that a very short interval of this nature, combined with the absence of any notice of renewal from the insurance company and with the fact that the defendant had instructed his secretary to renew the policy, were factors which might have induced him to reduce the fine of $500, which he imposed as well as a six months' qualification.

22. I allow the appeal against sentence, quash the sentence imposed by the magistrate and substitute instead a fine of $200 and disqualification for twelve months.

Representation:

M. Jenkins (M. Jenkins & Co.) for appellant

Stock for crown

(1) (1954) 3 All E.R. 261.

(2) (1946) 2 All E.R. 552.

(3) (1947) 1 All E.R. 302.

(4) (1969) 1 All E.R. 25.