HKSAR v. CHEUNG CHUNG

HCMA 1070/2006

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1070 OF 2006

(ON APPEAL FROM KTCC 6817 OF 2006)

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BETWEEN

HKSAR Respondent
and
CHEUNG CHUNG (張忠) Appellant

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Before : Deputy High Court Judge Line in Court

Date of Hearing : 26 January 2007

Date of Judgment : 26 January 2007

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J U D G M E N T

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1. This is an appeal against sentence for driving whilst disqualified. The appellant received a sentence of 2 months’ imprisonment.

2. The facts were that on 11 July at Fanling Magistracy, he was disqualified from driving for 3 months. At 6.40 on that very day, hewas driving a motor vehicle. One can find it hard to imagine a more flagrant breach. It is suggested that he had obtained employmentother than as a transport worker, which was his job previously, between the disqualification and 6.40 pm and that it was on receivinga telephone call that his child had fallen over, that he decided to drive. As the magistrate pointed out, there is no suggestionthat it was a genuine emergency and certainly the fact remains he could easily have taken a taxi or some other form of transportif it had been.

3. Mr Fu has said everything it is possible to say to try and stop the sentence of 2 months’ imprisonment still running. He may havegone some way to seeking to persuade, save that it became apparent to me – I had not realised it before – that on 20 July, nine dayslater, this appellant was driving his vehicle again.

4. He appeared in court on 21 August, pleaded guilty, and was dealt with and given a suspended sentence of imprisonment for that driving. It is common ground that the magistrate who passed that sentence was in ignorance of the fact that there was an outstanding casefollowing the driving of 11 July. This sentence that is appealed now, was passed on 24 October. I am afraid learning of that drivesfrom my mind any thought of the exercise of mercy.

5. Driving whilst disqualified is an offence that attracts sentences of imprisonment. Sometimes it is suspended; sometimes it is not. There is the alternative of community service obviously available. If it came to be thought that you could have one go at drivingwhilst disqualified and not be imprisoned, then the usefulness of disqualification would be greatly diminished. Motorists must appreciatethat if they breach the court order, then they are in jeopardy of being locked up. Obviously, the cases that deserve suspensionand that deserve immediate imprisonment have to be identified.

6. For the reasons I have given, the flagrant breach on the day in question and the subsequent behaviour of driving whilst disqualifiedagain, both make this an appropriate case for immediate custody.

7. I note that the magistrate said that he regarded the subsequent conviction of the driving whilst disqualified that attracted thesuspended sentence on 21 August as irrelevant. I take it that what he meant by that was that it lacked the aggravating force thatit would otherwise have had if it had antedated the conduct in question here. But it cannot be irrelevant because, generally speaking,a man’s whole character and behaviour is taken into account when it comes to sentencing.

8. Mr Fu urges upon me to look at his subsequent conduct in selling the motor vehicle in question, demonstrating he does not intendto drive it again. Equally, when looking at that, I also look at the fact that he offended subsequently, having been stopped bythe police on 11 July only nine days later. If I were to regard that as completely irrelevant, what would happen is that the aggravationof repeatedly driving whilst disqualified would be absent from the sentence of the man completely and that would not be right. Itwould offend commonsense. So even thought Mr Fu has said everything possible he can on the appellant’s behalf, this appeal againstsentence is dismissed.

(P Line)
Deputy High Court Judge

Ms Wong Sze-lai Lily, Senior Government Counsel, of the Department of Justice for the Respondent

Mr C S Fu, instructed by Messrs Ko & Chow, for the Appellant