Hughes v The Chief of Police

• Jurisdiction: British Virgin Islands
• Court: Court of Appeal (British Virgin Islands)
• Judge: Lewis, C.J.
• Judgment Date: 07 November 1969
• Neutral Citation: VG 1969 CA 5
• Docket Number: Criminal Appeal No. 4 of 1967
• Date: 07 November 1969

Court of Appeal

Lewis, C.J., Gordon, J.A., St Bernard, J.A. (Actg.)

Criminal Appeal No. 4 of 1967

Hughes

and

The Chief of Police

J.S. Archibald for Appellant

W.L. Macintyre (Attorney General) for respondent

Road Traffic - Sentence — Vehicle and Road Traffic Ordinance, Cap. 198 (The Ordinance) — Magistrates Code of Procedure Act, Cap. 45 (The Act) — Whether the appellant's appeal suspended the operation of the sentence disqualifying him from driving.

Facts: Evidence revealed that the appellant was convicted for the second time for driving under the influence of alcohol. Section 1(2) of the Ordinance required that he be permanently disqualified from driving. While his appeal was pending he was found and convicted for driving without a licence.

Held: Under the Ordinance the appellant's disqualification was automatic and would have been in force even if the court had no order. Nor could s.157 of the Act offer him any protection since it uses the words “suspends the execution” and not “suspend the operation”. In this case the disqualification is as a consequence of the conviction and is not a part of it. Appeal dismissed.

Lewis, C.J.

1 This case raises the question whether disqualification for holding or obtaining a driver's lincence imposed by conviction or order under sections 28 and 41 of the Vehicles and road Traffic Ordinance, Cap. 198 (herein after referred to as “the Ordinance”) is suspended automatically on appeal as a result of section 157 of the Magistrate's Code of Procedure Act, Cap. 45 (hereinafter referred to as “the Act”).

2 The facts are not in dispute. On the 16 ^th April, 1969, the appellant was convicted by the Magistrate for driving under the influence of liquor, contrary to section 28 of the Ordinance, and a sentence was imposed on him under subs. 1 of that section.

3 Sub.2 of that section reads as follows:

4 (2) A person convicted of an offence under this section shall, without prejudice to the power of the Court to order a longer period of disqualification, be disqualified for a period of twelve months from the date of the conviction for holding or obtaining a driver's licence, and on a second conviction for al like offence he shall be permanently disqualified for holding or obtaining a driver's licence. As this was a second conviction, the provision for permanent disqualification applied, and the Magistrate made an order to that effect. On 2 ^nd May, 1969, this appellant filed a notice of appeal against the “conviction”, sentence and disqualification order.” On the 5 ^th May he duly entered into a recognizance to prosecute the appeal.

5 On 24 ^th July, while his appeal was pending, he was seen driving a Land Rover and arrested and charged with driving when he was not the holder of a driver's licence, contrary to section 13(1) of the Ordinance.

6 On 1 ^st August he was convicted as charged and sentenced to a fine of $120 and, in default to six months imprisonment with hard labour.

7 The appellant's defence at the trial, and hid ground of appeal argued before this Court, was that as a result of section 157 of the Act, his disqualification was suspended by the appeal, and that accordingly he was lawfully driving on the 2 ^nd May. That section, insofar as it is relevant, enacts that –

“An appeal. shall have the effect of suspending the execution of the decision …appeal from…. until the final determination of such appeal.”

8 The learned Magistrate in his Reasons for Decision held that section 41 of the Ordinance contains special provisions relating to disqualification orders and to appeals against such orders, and that as the Court had not suspended the operation of the order under the provisions of subs. (4) of the section, the disqualification was in force at the time of the offence. He held that section 157 of the Act, being a general provision as to appeals, does not override the special provision of section 41(4) of the Ordinance.

9 It is necessary to set out subsections (1) and (4) of section 41 of the Ordinance.

10 41. (1) The Court before which a person is convicted of any offence in connection with the driving of a motor vehicle may, in addition to any other penalty provided for such offence, and shall, where so required by the provisions of this Ordinance, order that the offender be disqualified for a stated period or permanently from holding or obtaining a driver's licence either generally or limited to the driving of a motor vehicle of any particular class or description; and if the offender holds a driver's licence the Court shall endorse upon the licence particulars of the conviction.

• (4) A person who by virtue of an order of a Court under this section is disqualified for holding or obtaining a driver's licence may appeal against the order in the same manner as against a conviction, and the Court may, if it thinks fit, pending the appeal suspend the operation of the order.

Learned counsel for the appellant submitted that the Magistrate's disqualification order was made under section 28(2), and not under section 41(1), of the Ordinance, and that section 41(4) was therefore not applicable; that a disqualification order is for the purposes of an appeal part of a conviction, since section 2 of the Act defines the term “conviction” as including any order made by a magistrate; and that an appeal against such an order attracts the provisions of section 157 of the Act and results in the suspension of the disqualification.

He further submitted that even if the Court held that the order was made under section 41(1) of the Ordinance, the provisions of section 41(4) were overridden by the provisions of section 157 of the Act.

Learned Attorney General submitted that section 28(2) of the Ordinance prescribed the mandatory punishment of disqualification and must be read together with section 41(1), so that under the latter section the Magistrate was “required by the provisions of this Ordinance” to make the order. Thus, he argued, the order was made under the authority of the two sections, and section 41(4) applied to it, as that subsection made special provision for the case of appeals from disqualification orders, and was enacted subsequently to the provisions of the Act, it had the effects of exempting such appeals from the general provisions of section 157. But, he submitted, section 157 does not affect the disqualification order since that order requires no execution.

In my opinion, the disqualification order...