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In response to the announcement of the Ombudsman today (March 19) to initiate direct investigation into the implementation of the Driving-offence Points ('DOP') system by the Transport Department, a Government spokesman said, the Administration shared the Ombudsman's concern that a small number of drivers, who have accumulated 15 DOPs or above, can through evasion of disqualification still drive on the road affecting the safety of other road users.
Some drivers have tried to circumvent the DOP system by avoiding receiving summonses issued under the Road Traffic (Driving-Offence Points) Ordinance (Cap.375) ('the DOP Ordinance') and any disqualification order to be made against them. In order to address the problem, the Government has put forward the Road Traffic (Driving-Offence Points)(Amendment) Bill 2009. The main contents of the Bill are as follows:
(1) To continue with existing arrangement that a summons issued by the magistrate is to be served by ordinary post to a driver in the first instance. If the driver fails to appear in court at the date and time specified in the summons, the summons will then be served to the driver again by registered post.;
(2) a summons is deemed to have been served if it is served on a person by registered post at the person¡¦s address shown in the record of driving licences kept by the Commissioner under the Road Traffic (Driving Licences) Regulations (Cap. 374B) even if it is returned undelivered (Section 18A of Magistrates Ordinance (Cap. 227) provides, amongst others, that where a summons has been served on a person a reasonable time before the hearing and at the time and place appointed for the hearing only the complainant or informant appears, the magistrate may issue a warrant to arrest the defendant);
(3) to provide that the magistrate shall not order a person to be disqualified from driving in the absence of that person; and
(4) to provide that the Commissioner for Transport shall not issue, reissue or renew a driving licence to a person if the person fails to appear in court to answer a summons served (including the summons deemed to have been served) on him under the DOP Ordinance.
We note that the Ombudsman is very concerned about the effectiveness of the proposal in (3) above, under which the court is not empowered to issue a disqualification order in the absence of a driver.
¡§When drafting the Bill, we have carefully considered all relevant factors, including whether provisions should be made for automatic disqualification of a driver from driving, and whether the proposed legislative amendments can effectively plug the existing loophole in the summons serving mechanism,¡¨ the spokesman said.
¡§Under the proposed 'deemed served' provision, the possibility of a driver not having received a summons served by registered post on him, and hence not attending the hearing where his civil rights would be determined, cannot be dismissed entirely. Therefore, in addition to the 'deemed service' provision, we follow the legal advice to propose that the court shall not order a person to be disqualified from driving in his absence. This is to protect the person's right of fair hearing provided under Article 10 of the Hong Kong Bill of Rights.¡¨
¡§A disqualification order may jeopardize the pecuniary interest of a professional driver and even affect his livelihood, so the Government must consider the matter carefully,¡¨ the spokesman said.
The Government has also duly considered that practically if a disqualification order were to be made automatically against a driver who has accumulated 15 or more DOPs or in his absence, the court will not be able to ask the driver to return his driving licence. Besides, the driver concerned may continue to drive without knowing that he has been disqualified, and commit the offence of driving whilst disqualified. This will not help enhance road safety, but may lead to problems on human rights and insurance (if a traffic accident occurs) particularly if the driver has reasonable excuse for failing to receive summons but being disqualified from driving without his knowledge.
¡§Having considered all relevant factors, including the need to strike a balance between enhancing road safety and protecting a person's right of fair hearing, we found it not appropriate to introduce a mechanism whereby a person will be disqualified from driving automatically. However, we agree that suitable provisions should be added in the DOP Ordinance to address the situation whereby some drivers circumvent the DOP system by avoiding receiving summonses and any disqualification order to be made against them.¡¨
¡§We consulted the Transport Panel of Legislative Council last November about the contents of the Bill and obtained their support. Before coming up with proposed provision, we have also consulted the Judiciary who had not held different views.¡¨
¡§The Bill is being scrutinized by the Legislative Council. We hope the Bill can be passed as early as possible so that we can deal with the anomaly arising from the deliberate circumvention of the DOP system.¡¨
¡§We would cooperate fully with the Ombudsman to help her better understand the whole DOP system, the relevant factors that we have considered and the procedures that we have gone through, including the need to protect the human rights of the drivers concerned and our consultation with the Legislative Council,¡¨ the spokesman said.
Ends/Thursday, March 19, 2009
Issued at HKT 20:09
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