d. Defence

d. Defence

The order for disqualification under the Driving-offence Points System is to be made by a magistrate.  Existing Court decisions indicate that magistrate’s courts almost invariably make orders for disqualification for 3 months in the case of a first incurrence of 15 points and 6 months in the case of a repeated incurrence.  However, section 8(3) of the Road Traffic (Driving-Offence Points) Ordinance (Cap.375 of the Laws of Hong Kong) provides that a magistrate may, “having regard to all the circumstances”, order a shorter period of disqualification or even not to order the convicted person to be disqualified; and section 8(4) of the same Ordinance expressly denotes that a magistrate may take into account circumstances such as “exceptional hardship”.  So what exactly is “exceptional hardship”?

The Court has made it clear that “exceptional hardship” does not mean an extreme degree of hardship, but a kind of hardship different from a usual or ordinary one.  For example, the Court has held that financial hardship is not exceptional hardship even though the defendant is a professional driver.