HKSAR v. Bouillon, Attis Clayton

HCMA 262/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 262 OF 2013

(ON APPEAL FROM ESS 43228 of 2012)

____________

_________________________________

R E A S O N S  F O R  J U D G M E N T

_________________________________

1.The appellant pleaded guilty to one charge of Using a Vehicle without Insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272. The appellant was sentenced to $1,500 fine and 12 months’ disqualification. He appealed against his sentence of disqualification.

2.On 30 May 2003 I dismissed the appeal and advised that reasons would be handed down at a later date.  Those reasons follow.

Facts

3.The appellant was the registered owner of a motorcycle PP 6290.  On 27 May 2012 he parked the motorcycle at a parking space at Yuen Yuen Street, Happy Valley and left the motorcycle unattended there.  On 4 June 2012 the parked motorcycle together with 5 other parked vehicles was damaged in a traffic accident caused when the driver of a private car reversed into the parked motorcycles.  Police investigation revealed that the insurance policy of the appellant’s motorcycle expired on 16 August 2011.  The motorcycle licence had expired on 15 August 2011.

4.In imposing a disqualification order, the magistrate followed section 4(2)(a) of the Ordinance which provides for a mandatory disqualification period of not less than 12 months nor more than 3 years after conviction.  There was no special reason advanced before the magistrate to justify his not disqualifying the appellant. 

5.The magistrate had considered two English authorities. In Eden v Mitchell [1975] RTR 425 the test of “use” for immobile vehicles was whether steps had been taken to make it impossible for anyone to drive the vehicle.  The magistrate found that the motorcycle was parked at a parking space on a public road and the motorcycle could be driven or moved away; he found the appellant was using the motorcycle, even though he was not driving the motorcycle at the material time. 

6.Andrews v Kershaw [1951] 2 AW ER 164 held that even a car which cannot be set in motion due to removed tires or malfunctioning engine was “in use”.  A vehicle should not be left on the street without valid third party insurance, because there are still risks involved in leaving the car on the street.

7.The appellant’s grounds of appeal were that:

(1) there was a misunderstanding regarding whether or not he was operating the motorcycle without insurance;

(2) he did not realise the prosecution was accusing him of actually driving the motorcycle.  He was pleading guilty to simply having expired insurance;

(3) the motorcycle was inoperable, parked and hit by a car in the parking lot at the time of the accident;

(4) if he had understood the clerk in court, or had known what the consequences were, he would have pleaded not guilty;

(5) he has been a law-abiding expatriate over his 7 years in Hong Kong;

(6) he relied on the motorcycle for commuting to work;

(7) he had never had any dangerous traffic convictions nor did he have a criminal record in Hong Kong;

(8) he was attending a conference in Taiwan at the time of the accident; and

(9) he was willing to pay an additional fine and asked for leniency in sentence.

8.The appellant seemed to be submitting that his guilty plea was equivocal due to either his misunderstanding of the relevant law or his failure to form a deliberate and informed decision about his plea at the hearing on 5 April 2013; neither of those suggestions was substantiated. 

9.I am satisfied that the appellant knew what he was doing in regard to his plea and in any event he had agreed with the material facts read to him in court. 

10.The respondent submitted that the appellant’s submission that he failed to understand the court clerk was not credible as the facts made it very clear that the motorcycle was not being driven by the appellant at the material time.  The magistrate had also explained the relevance of the charge to the appellant. 

11.The other grounds put forward by the appellant relating to his clear record and the hardship caused by the disqualification had been considered already by the magistrate at the time he passed sentence.

12.A special reason which would justify the magistrate exercising his discretion not to make a disqualification order, is one which is special to the facts of the particular case, which constitute the offence.  The magistrate could not find any special reason here why he should not impose the mandatory disqualification.  That a driver is of good character, has a clear record, or that disqualification would lead to transport problems do not amount to special reasons. [see Whittal v. Kirby (1947)1KB194]

13.The sentence of 12 months’ disqualification imposed by the magistrate was not manifestly excessive, nor wrong in law.  In the circumstances the appellant’s appeal against sentence is dismissed. 

Mr David Yim, PP of Department of Justice, for HKSAR

The appellant, in person, present