Yiu Chung-fu v. The Queen
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CACC000883/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL No. 883 OF 1980 -----------------
----------------- Coram: Penlington J. in Court Date of Judgment: 14th November 1980 ----------------- JUDGMENT ----------------- 1. This is an appeal against sentence. The appellant was charged with three offences but the only one with which there is any serious complaint as to sentence is the B Charge, that of driving whilst disqualified. On that charge the Magistrate imposed a fine of $200 plus one month's imprisonment. 2. Section 25 on the Road Traffic Ordinance CAP 220 provides that any person who is convicted of driving whilst disqualified shall be sentenced to a term of imprisonment of not less than one month except where the conviction is a first conviction for the offence, which is the case here, and the Magistrate is of the opinion that, having regard to the special circumstances of the case, a fine would be an adequate punishment for the offence. The Magistrate decided that the appellant came within the first bracket in that it was his first conviction but he was not satisfied there were special circumstances. 3. The alleged special circumstances put forward, not it may be noted by the appellant himself but through his Counsel, were that on the date in question at about 5 p.m. he received the telephone call from his wife, who he said was about 7 months pregnant, saying that she was in pain and asking him to return home immediately. No other form of transport was available so he drove a company car. At the hearing of the appeal certain affidavits and documents were produced, one of which is a letter from Dr. F.S. Wong which confirms that the appellant's wife is indeed pregnant (it also makes it clear that at the time of the incident she was in fact only five months pregnant). It is I think noteworthy that this alleged phone call from his wife was not mentioned by the appellant to the constable who stopped him nor was it mentioned to the Magistrate when the appellant first appeared. I would have thought, and no doubt the Magistrate took the same view, that if he had been rushing home to see his wife under those circumstances he would certainly have told the constable and most certainly would have told the Magistrate as this would have been obviously a strong mitigating circumstance. This explanation for his driving whilst disqualified only emerged after the appellant found himself facing a sentence of imprisonment. I do not think that the Magistrate accepted this evidence and neither do I. 4. Having found therefore that there was no special circumstance the learned Magistrate had no option but to impose the sentence which he did, one of one month's imprisonment. What he does not perhaps have given full attention to was the question of whether under the circumstances the sentence should be suspended. 5. My attention was drawn to Criminal Appeal No. 516 of 79 in which the Chief Justice said that where there were no special circumstances and a term of imprisonment must be imposed that a term of imprisonment could nevertheless be suspended where the personal circumstances of the appellant justified such a course. In that case however he was dealing with an appellant who at the time of the commission of the offence was under the age of 21 and clearly that was a factor of considerable importance. In this case while the appellant is not of that age, but he is young, he has a clear record apart from motoring offences, his wife is now seven months pregnant and is due to give birth in mid-January. I think this is a borderline case but that the circumstances of this particular appellant are such that the sentence should be suspended, and I so order. Taking into account, however, the appellant's bad motoring record I think that the period of disqualification imposed by the Magistrate should be increased, and he will be disqualified in respect of the charge of driving whilst disqualified for a period of two years starting from the 24th of January 1981 when the present period of disqualification would lapse.
Representation: Mr. Frederick Lee instructed by Hastings & Co. for Appellant Miss Crebbin for Crown |