Case Detail

HCMA000746A/1985

HEADNOTE

Speeding - limitation of mandatory disqualification.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Criminal Appeal No. 746 of 1985

___________

BETWEEN

THE QUEEN

Respondent

and

MO Wing

Appellant

_____________

Coram: Hon. Bewley, J. in Court

Date of hearing: 18th & 23rd September; 5th December, 1985

Date of delivery of judgment: 5th December, 1985

___________

JUDGMENT

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1. The appellant pleaded guilty to speeding. He was fined $200, disqualified for 12 months and ordered to retake the driving test.

2. This was his third conviction for speeding. The offence took place on 28th April this year and the last conviction was on 7th January, 1983. He was thus caught by section 41(2) of the Road Traffic Ordinance, under which disqualification for not less than 12 months is mandatory in such circumstances. The magistrate was also bound by section 70(1) to order that he be disqualified until he passed the driving test.

3. Section 69(2)(b) of the Road Traffic Ordinance provides that disqualification may, if the court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed.

4. The appellant is a taxi driver and this offence occurred while he was driving a taxi in Cornwall Street, Kowloon Tong. I am asked to exercise my discretion to limit the disqualification to taxis, in order to permit the appellant to earn his living by driving private cars or light goods vehicles. He has no other skills and at present is unemployed.

5. It is necessary to balance the hardship that will be suffered by the appellant, if the disqualification remains unlimited, against the need to protect the public from speeding motorists. His record is not good. Apart from the speeding conviction, the appellant has one conviction for careless driving and six convictions and fixed penalty tickets for disobeying traffic lights and signs. He also received a fixed penalty ticket for speeding in March this year. I accept that all these offences were committed while driving taxis.

6. Apart from the appellant's personal circumstances and his driving record, I am entitled to take into account how the offence occurred. The appellant's speed on this occasion - 60 k.p.h. - was not grossly excessive considering the location. He was caught in a radar trap while driving uphill on a section of Cornwall Street that is free of intersections for approximately one kilometre. It is a dual carriageway and traffic is not usually heavy, particularly on a Sunday morning. There is no dispute that the appellant was on his way to assist a friend that had been involved in an accident.

7. Taking all these matters into account, I conclude that the public interest does not demand that the appellant be prevented from earning his living as a driver.

8. The appeal is allowed to the extent that the disqualifi-cation is to be limited to taxis.

(E. de B. Bewley)

Judge of the High Court

Representation:

Mr. Simon Chiu, Crown Counsel, for the respondent.

Mr. Raymond Faulkner (D.L.A.) assigned for the appellant.

HCMA000746/1985

IN THE SUPREME COURT OF HONG KONG

Magistracy Appeal

1985 No. 746

BETWEEN

THE QUEEN

and

MO WING

Coram: Hon. Li, V.-P., Kempster, J.A.& Hunter, J.

Date of Hearing: 22nd November 1985

Date of Judgment: 22nd November 1985

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JUDGMENT

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Kempster, J. A. :

1. On 8th August of this year MO Wing was convicted in North Kowloon Magistrate's Court, on his own plea, of an offence of driving a taxi at a speed exceeding 50 kilometres per hour contrary to section 41(1)(a) of the Road Traffic Ordinance. He was fined $200, disqualified from holding or obtaining a driving licence for 12 months and ordered to re-sit the driving test pursuant to sections 41(2) and 70(1) respectively. Against that sentence MO Wing appealed to the High Court and his appeal was heard by Bewley, J. on 18th September. At that hearing MO Wing sought an order that his disqualification from holding or obtaining a driving licence should apply only to taxis. The learned judge was troubled as to his powers in this regard and adjourned the appeal to 23rd for argument. Having heard such argument and at the invitation of counsel Bewley, J. referred the question to this Court pursuant to section 118(1)(d) of the Magistrate's Ordinance; the question being whether or not a Magistrate or a Judge has power to limit the classes of vehicle when an individual is subject to mandatory disqualification for twelve months under the provisions of section 41(2). That section, as a whole, reads as follows:

" (1)

A person who drives a motor vehicle on a road at a speed exceeding -

(a)	50 kilometres an hour or such other speed limit as may be in force on that road under section 40; or
(b)	70 kilometres an hour as provided for in section 40(5),

commits an offence and is liable to a fine of $4,000.

(2)	A person who is convicted of a third or subsequent offence under this section or under section 15 of the repealed Ordinance relating to the speed at which any vehicle shall be driven on any road shall be disqualified for a period of not less than 12 months. "

It is pointed out by Mr. McCoy, who appears for the Crown, that the expression "disqualified" is defined in section 2 of the Ordinance in these terms:

"'Disqualified' means disqualified under this Ordinance from holding or obtaining a driving licence and 'disqualification' shall be construed accordingly."

And again:

"'Driving licence' means a driving licence issued under this Ordinance.

The Road Traffic (Driving Licences) Regulations made pursuant to the Ordinance provide for the issue of driving licences in the following classes:

Private cars
Taxis
Public light buses and private light buses
Public buses and private buses
Light goods vehicles
Medium goods vehicles
Heavy goods vehicles
Articulated vehicles
Special purpose vehicles
Motor cycles and motor tricycles
Invalid carriages
Government vehicles

Prima facie disqualification covers all these classes but provisions allowing limitation of its ambit appear in section 69 which reads:

" (1)

without prejudice to any other provision relating to the penalty that may be, or is required to be, imposed for an offence, a court before which a person is convicted of any of the following offences may order him to be disqualified for such period as the court thinks fit -

(a)

any offence under this Ordinance in connexion with the driving of a motor vehicle, other than a first offence of driving a motor vehicle on a road at a speed exceeding a speed limit imposed by any enactment, or a second such offence the date whereof falls more than 3 years after the date of the first offence; -

(2) A disqualification -

(a)	imposed in respect of an offence specified in subsection (1)(f) (that deals with a breach of the provisions of the Public Service Vehicles Regulations relating to the obligations of taxi drivers) shall be limited to the driving of a taxi; and
(b)	imposed in respect of any other offence may, if the court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed. "

It is submitted on behalf of the Crown that subsection 2 should in effect so be construed as to read:

"A discretionary disqualification (b) imposed in respect of any other offence - "

which would not allow its limitation in relation to a mandatory disqualification under section 41. And it is faintly pointed out both that these two sections appear in different parts of the Ordinance and that if section 69(2) was to have general application it would more appropriately have been enacted in a separate section.

2. When looking at section 41(2) we have already referred to the words "under section 15 of the repealed Ordinance". That was the Road Traffic Ordinance, Cap. 220. It is helpful, on the point of construction, to see how the equivalent of section 69 was then worded. The section was then section 23:

" (1)

Without prejudice to any other penalty, any court or magistrate before whom a person is convicted of -

(a)	any offence under this Ordinance or under any regulations made thereunder in connexion with the driving of a motor vehicle;
(b)	stealing a motor vehicle;
(c)	an offence under section 14(1) of the Theft Ordinance, in respect of a motor vehicle; or
(d)	an offence under section 27 of the Theft Ordinance, committed with reference to the theft or taking of motor vehicles,

may order him to be disqualified from holding or obtaining a driving licence for such period as the court or magistrate thinks fit (again a discretionary power), and where any provision of this Ordinance requires him to be so disqualified for a minimum period, shall order him to be disqualified for a period which is not less than that minimum period:

Provided that -

(a)	if the court of magistrate thinks fit, any disqualification imposed under this section may be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed. "

But in section 69(2) of the Ordinance which we have to construe the words "under this section" do not appear. Again, on the point of construction, we note that in section 8(6) of the Road Traffic (Driving-Offence Points) Ordinance, Cap. 375 the provision as to disqualification reads:

" 8(6)

Any disqualification imposed under subsection (3) shall apply to the driving of all classes of motor vehicles shown on the driving licence. "

A similar provision could have been included in section 41(2).

3. Having briefly compared these two related Ordinances we think it right to mention that we notice grave anomalies between the provisions which may require or result in disqualification depending on whether a prosecution is brought pursuant to the one ordinance or the other. Those anomalies may have given rise to the number of appeals about which we have been informed.

4. In the event we have no hesitation in giving to section 69(2) the wide meaning which it literally bears namely that a disqualification imposed in respect of "any other offence" which, of course must be an offence in relation to motor vehicles, may, if the court thinks fit, be limited to the driving of a motor vehicle of the same class or description as the motor vehicle in relation to which the offence was committed. The courts have power to provide for such limitation when imposing a mandatory disqualification under section 41(2).

5. The order which we make in the circumstances is to remit the appeal to Bewley, J. with our opinion.

(M. Kempster)

Justice of Appeal

Representation:

Mr. Faulkner (D.L.A.) for applicant

Mr. McCoy & Miss V. Fung for D. P. P./ respondent

THE QUEEN v. MO WING

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