Coram: The Honourable Mr. Justice Jones in Court.
Date of hearing: 27 April 1984
Date of delivery of judgment: 27 April 1984
1. The appellant pleaded guilty before a magistrate at North Kowloon Magistrates Court on the 22nd February 1984 that he drove a privatecar on a restricted road on the 15th November 1983 at a speed exceeding 30 m.p.h. contrary to Section 15(1)(a) of the Road Traffic Ordinance Cap. 220. The appellant’s speed was 64 m.p.h. He was fined $500, disqualified from holding or obtaining a driving licence for 6 months,and ordered to resit all tests for his driving licence. The appellant appeals against sentence.
2. The magistrate imposed the period of disqualification pursuant to Section 15(2) of the Ordinance on the grounds that it was the appellant’s third speeding conviction within 3 years. The relevant part of Section 15(2) reads:-
However, I am told that the appellant’s previous traffic. offences were dealt with by fixed penalty notices under the Fixed Penalty (Criminal Proceedings) Ordinance. Mr. Bruce who appeared for the Crown concedes that the fixed penalty notices on which payment has been made should not have beentaken into account by the magistrate when he came to determine sentence see Sin Yiu-kong v. R (1979) HKLR 294. In that case it was held that the payment of a fixed penalty offence does not amount to a conviction nor is it a prima facie admissionthat an offence had been committed, Leonard J. in the course of his judgment at. page 296 said:-
3. As a result the appellant in the instant case had to be regarded as a first offender. The mandatory provision for disqualificationdid not therefore apply.
4. The magistrate imposed the order to resit all driving tests having regard to the appellant’s previous offences and the excessivespeed at which he was travelling. I assume that he did so by invoking the provisions of Regulation 10(6) of the Road Traffic (Driving Licences) Regulations which provides:-
5. Whether or not he exercised power under this regulation, an order for disqualification until the passing of a test should not beimposed as part of the penalty for the offence for the provision is not punitive see R v. Donnelly (1975) R.T.R. 243, R v. Banks (John) (1978) R.T.R. 535. The provision should be used where a person is shown to be inexperienced, old, infirm, or incompetent. None of these circumstancesapplied in this case.
6. Treating the appellant as a first offender the facts did not warrant the imposition of a period of disqualification. It necessarilyfollows that the magistrate was wrong to order the appellant to resit all tests for his driving licence. However, the fine of $500was appropriate. Accordingly the orders of disqualification and to resit all driving tests will be discharged. The appeal is allowedto this extent.
Mr. J. Lee (O’cock & Day) for Appellant.
Mr. A.A. Bruce (Legal Department) for Respondent.