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THE PROBLEM
7.
Clearly (assuming the convictions to be just) it must be accepted that in some cases unscrupulous persons are able deliberately to stymie prosecutions for the underlying driving offences at the risk of being convicted under S.29. Such an option is obviously undesirable.
8. In 1976-77 the Legislative Council passed the Fixed Penalty (Criminal Proceedings) Ordinance (Cap 240) but this has not yet been activated as the computer has not so far been duly programmed. The Ordinance is mainly designed to cover some 70 minor offences: save for speeding ($50 or $100), it does not cover the offences listed in paragraph 6 above. But it does cover some more serious offences such as not stopping at zebra crossings, or for school crossing patrols, disobeying traffic lights, insecure load, giving incorrect name and address, (all $100), driving without lights, overloading vehicles, etc. (all $50).
9. S.29(1) is covered in this Ordinance and attracts the heaviest penalty therein ($200). The police may at their discretion prosecute rather than apply for the fixed penalty. But the Legislature's view of the penalty usually appropriate will obviously influence the Magistrates greatly when deciding sentence.
POSSIBLE SOLUTIONS
10. S.29(1) could be amended so as potentially to carry similar penalties to the underlying traffic offences, including disqualification. In the U.K. the offence of refusing to take a breath test carries as heavy penalties as failing the test, including disqualification, and it is no defence to prove the driver had taken no alcohol.
11. S.29(1) (and also giving a false name and address) could be taken out of the Fixed Penalty Ordinance.
12.
It would be possible (but in my view undesirable) to impose minimum penalties for S.29 or even to make the owner statutorily liable for the underlying traffic offence upon failure to comply with S.29