AU WAI v. THE QUEEN

CACC001018/1971

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 1018 OF 1971

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BETWEEN
	AU Wai	Appellant
	and
	THE QUEEN	Respondent

Coram: Leonard J. in Court

Date of Judgment: 22nd February, 1972.

 

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JUDGMENT

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Leonard J.:

1. In this case the appellant pleaded guilty to driving a motor vehicle on a restricted road at a speed exceeding 30 miles per hour. He had one previous conviction within the 3 years immediately preceding the conviction from which he appealed and had three earlier conviction in the years 1953 and 1954. The learned magistrate held that he had no discretion under Section 15(2) (and its proviso) of the Road Traffic Ordinance (Cap. 220) to do other than disqualify him for driving for a period of six months. He was not unnaturally reluctant to do so as the appellant a taxi dirver earns his living from driving meter vehicles.

2. I sympathize with that reluctance but I fear that the Section as drawn leaves no discretion to the magistrate. Miss Leong for the appellant urged that a period of 3 years without a conviction must result in the person involved having a clean slate. She does so because of the statement in the proviso that the magistrate may deal with the offence as a first offence when a period of 3 years had elapsed since the last previous conviction. She suggested that third conviction having been treated as a first offence a fourth conviction must be treated as a conviction for a second offence. This argument while attractive does not taken into account the wording of the proviso. Furthermore, as Crown Counsel has pointed out a different wording is used in Section 23. There the magistrate is given discretion to impose a sentence of disqualification for a second conviction for driving a motor vehicle on a road at a speed exceeding the speed limit but he has no discretion to disqualify if the date of the second conviction falls more than three years after the date of the first conviction. I should have liked to give the proviso to Section 15 "a fair large and liberal construction" to use the words of Section so as to be interpreted in the manner suggested by Miss Leong. However, I am prevented from doing so by the manifest intention of Section 15 when read together with Section 23.

3. I would finally observe that the law here appears as Corwn Counsel candidly states to the draconian. Indeed it is so draconian that I fear it may open door to worse evils than speeding. This appeal must accordingly be dismissed. The learned magistrate having suspended the operation of his order it now comes into force. Accordingly the appellant should deposit his licence with the magistrate with in five days of this order.

 

 

	(P.F.X. Leonard)
	Puisne Judge

 

22nd February, 1972.

 

Representation:

Miss J. Leong assigned for the Appellant.

Carellan, C.C. for Respondent.