Chan Kam Chung v. The Queen
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 676 OF 1972 -----------------
----------------- Coram: Huggins, J. ----------------- JUDGMENT ----------------- 1. The Appellant appeals against sentence. He was charged with driving a private motor-car for the carriage of passengers for hire or reward and with using a motor vehicle without third party insurance. Upon his trial he was convicted on both charges and was sentenced to a fine of $150 on each charge with a disqualification for a period of fifteen months on the second charge. 2. The case was adjourned pending the decision of the Full Court in LEUNG Tak-kuen v. Reg. Cr. App. 630 of 1972, the Appellant having produced a certificate of insurance which would have covered him had he not been driving the vehicle for hire or reward. Following upon the decision in that case I directed that the order of disqualification made against the Appellant be limited to Class (b) vehicles, the class of vehicle to which the offence related. However, I reserved my decision on the question whether the learned magistrate was right to order disqualification for a period exceeding twelve months, a matter which was not argued before him. He has said:
3. His premiss being correct (see Whittall v. Kirby 1946 2 All E.R. 552, 556) I could not say that it was wrong to exercise his discretion as he did – provided that there was power to make such an order. It seems probable from the wording of s.4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (to which I shall refer as “the Insurance Ordinance” that the Legislature thought there was power to make such an order. It is conceded by counsel for the Crown that s.4(2)(a) does not itself confer the power. The material part of the paragraph is in the parenthesis:
4. As a matter of common sense unless there was such a power that saving could be of no effect. If it has been intended that this paragraph should itself confer the power, the draftsman could easily have used some such from as “shall be disqualified ... for a period of not less than twelve months from the date of the conviction or for such longer period as the magistrate may think fit”. It may be that he simply followed the English legislation without appreciation that the fact that in Hong Kong disqualification for driving uninsured was being provided for in a separate statute would in this connection be of vital importance. Be that as it may, I have to interpret the legislation as it stands and it is beyond argument that the paragraph takes the form of a saving provision. The rule that if a saving clause be repugnant to the body of the stature it is void and is not be construed as though it were a positive enactment is of respectable antiquity: see The Case of Alton Woods (1600) 1 Co. Rep. 40b. 5. Counsel for the Crown seeks support for the view that power to impose a longer period of disqualification does exist by reference to s.4(2)(b), the very paragraph which was considered by the Full Court in LEUNG Tak-kuen v. Reg. (supra). Counsel not unreasonably submits, in effect, that what is sauce for the goose is sauce for the gander and that if the proviso to s.23(1) of the Road Traffic Ordinance (to which I shall refer as “the Traffic Ordinance”) can apply so as to permit the limitation to one class of vehicle then the enacting part of s.23(1) must also apply so as to permit disqualification for more than twelve months. He goes on to say that s23(4) of the Traffic Ordinance clearly emphasises what is indeed apparent from s.4(2)(a) of the Insurance Ordinance, namely that the Legislature thought the power did exist. Section 23(4) allows any person disqualified from holding a driving licence to apply to the court before which he was convicted or by which the order was made to remove the disqualification, but it is expressly provided (inter alia) that the disqualification may not be removed, in the case of an offence under s.4 of the Insurance Ordinance, with effect from a date earlier than the date of expiry of the twelve months minimum period of disqualification. He rightly says that that part of s.23(4) which relates to disqualifications imposed under the Insurance Ordinance would be meaningless if there were no power to order disqualification for a period longer than twelve months. I entirely agree, but it seems to me that if the saving clause in s.4(2)(a) of the Insurance Ordinance cannot be construed as though it were a positive enactment neither can the relieving provision contained in s.23(4) of the Traffic Ordinance: both show what the Legislature thought it had enacted, but neither confers the power which is in question. In my view that power must be found, if at all, in the enacting provisions of s.23(1) of the Traffic Ordinance and the sole issue is whether those provisions must, by reason of s.4(2)(b) of the Insurance Ordinance, be deemed to apply to orders made under the Insurance Ordinance. 6. Not without hesitation I have come to the conclusion that there is no power to order a longer period of disqualification. That such a decision is not entirely logical is manifest, but as a member of the Court which decided LEUNG Tak-kuen v. Reg. I think I am entitled to say that the conclusion there reached was not entirely logical. The majority of the Court thought that Burrows v. Hall 1950 2 All LR. 156 had been wrongly decided, but felt constrained to followed it out of comity. We were able to take that fortunately unusual course because to do so was favourable to the subject. In the present case it is the strict interpretation which favours the subject and in my view that is sufficient reason for not applying the principle of LEUNG Tak-kuen v. Reg. to its logical conclusion in relation to the period of disqualification. In s.4(2)(b) of the Insurance Ordinance the Legislature chose to enact a provision which applies to “a person disqualified by virtue of conviction under this section or of an order made thereunder” and not to “a person convicted under this section”. It seems to me clear that any disqualification for an insurance offence is intended to be made under the Insurance Ordinance and not under the Traffic Ordinance. If s.4(2)(a) was intended merely to set a minimum period for a disqualification which was to be made under the Traffic Ordinance, the Legislation could easily have said so. If, as I thinks, the power to order disqualification for an insurance offence must be found in that paragraph then it would be an extraordinary abuse of language to read the words “shall order him to be disqualified for a period which is not less than that minimum period” in s.23(1) of the Traffic Ordinance (which confers the power to make an order of disqualification under that Ordinance) as giving power to prolong an order of disqualification made under the Insurance Ordinance. If the words cited were intended to be applicable to persons convicted under the Insurance Ordinance nothing would have been easier than to provide by s.492)(a) of the Insurance Ordinance the anyone convicted of an offence under that Ordinance should be deemed for the purposes of s.23 of the Traffic Ordinance to have been convicted under that Ordinance. To construe the statute in the manner now suggested seems to me to be not merely “ironing out the creases” but weaving anew the fabric of the legislation. There is no doubt in my mind that the Legislature thought it had conferred the wider power and that its further enactments based upon that understanding are meaning less if they had failed to express their original intention. However, I do not think there is any ambiguity in s.4(2)(b) which would justify me in giving to it the effect contended for by the Crown. The over-riding consideration, in my view, is that if the Legislature wishes to impose a penalty upon one of Her Majesty’s subjects it must do so in plain terms. 7. The appeal will be further allowed to the extent that the period of disqualification will be limited to twelve month. 3rd January, 1973 |