Zachary De Silva v Licensing Authority of Trinidad and Tobago and another

Mr de Silva was notified on 23 October 2020 by the Transport Commissioner that he had been disqualified from driving and his driving licence suspended for a period of six months. This was the result of his having accumulated 10 demerit points on his licence for infringements of the Motor Vehicles and Road Traffic Act, Chap 48.50 (“the Traffic Act”). Mr de Silva wanted to appeal against the suspension on the grounds that it was unreasonable and disproportionate. Mr de Silva brought his appeal by way of Fixed Date Claim form filed in the High Court on 6 November 2020. The High Court decided that it was not the correct forum; the appeal should have been lodged in the Court of Appeal. The Court of Appeal agreed. The question that the Board has to decide is whether Mr de Silva's appeal should be brought before the High Court or the Court of Appeal.

The Traffic Act dates back to 1934. Section 4, as amended, establishes the Transport Commissioner to be the Licensing Authority charged with “responsibility for the registration and inspection of all motor vehicles and issue of driving permits and such other matters as are assigned to him by this Act or any Regulations made thereunder”. Section 42 makes it an offence to drive a motor vehicle on the road without a valid driving permit.

Before the Traffic Act was amended in 2017, as described below, Part VI of the Traffic Act included section 82(1). This provided that the Court before which a person was convicted of a traffic offence could order, in addition to any other penalty provided for the offence, that the offender be disqualified from driving for a stated period or permanently. A person so disqualified could apply to the Court after six months for his driving permit to be reinstated. Section 83 provided that a person who was disqualified from driving by an order under section 82 “may appeal against the order in the same manner as against a conviction” and the Court could suspend the operation of the order pending that appeal. It was common ground before the Board that under the old Part VI of the Traffic Act, traffic offences other than the most serious offences, were tried in the Magistrates' Court so it was that Court which exercised the power in section 82. Further, it was common ground that the court to which an appeal against disqualification was made under the old section 83 was the Court of Appeal: see section 128 of the Summary Courts Act, Chap 4:20.

The Traffic Act was amended extensively by the Motor Vehicles and Road Traffic (Amendment) Act (Act No 9 of 2017) (“the Amending Act”), the amendments coming into effect on 26 May 2020. Section 35 of the Amending Act repealed Part VI and substituted a new Part VI headed “Fixed Penalty Enforcement and Administration” and a new Part VIA headed “Legal Proceedings, Demerit Points, Suspension and Cancellation of Driving Permits”.

Section 81(1) provides that where a constable has reason to believe that a person is committing or has committed a traffic violation, the constable may issue the driver with a fixed penalty notice. That offers the driver the opportunity either to pay the fixed penalty within the time specified in the fixed penalty notice and discharge any liability for the traffic violation or to file a notice to contest the fixed penalty notice issued to him.

The contents of the fixed penalty notice were prescribed by section 82 which provided that the notice must specify, among other things:

(i) the date, time and place that the fixed penalty notice was issued or affixed;

(ii) the section of the written law creating the traffic violation and the specified particulars of the traffic violation;

(iii) the amount of the penalty and the applicable number of demerit points for the traffic violation;

(iv) that the person may contest the fixed penalty notice by filing a notice to contest in accordance with section 85; and the date, time and address of the Court where the person should appear if he or she files a notice to contest.

“Court” is defined for this purpose by reference to the Summary Courts Act: section 80. That definition refers to “any Magistrate or Justice when sitting in open Court to hear and determine any matters within his power and jurisdiction, either under this Act or under any other written law, and such Magistrate or Justice when so sitting as aforesaid…”.

Section 83 provides that if the driver does not contest the notice and pays the penalty within 30 days, “a person shall not be liable to any sanction for the traffic violation in respect of which the fixed penalty notice was issued or affixed”: section 83(2). Where a person files a notice to contest the fixed penalty and does not pay the penalty then the matter is listed for trial in Court: section 87. The constable who affixed the notice must attend Court and the Magistrate will hear and determine the case.

The amounts of the penalties imposed for various traffic violations and the number of demerit points for each violation are set out in the Ninth Schedule to the Traffic Act. The Minister has power under section 88D to add or remove violations and vary the number of points or the amount of the penalty. The Ninth Schedule lists 96 traffic violations, ascribing to each a value of the fixed penalty and a number of demerit points. They include many familiar contraventions including driving whilst using a hand-held mobile device, driving in a bus lane, failing to park as close as possible to the side of the road and overtaking traffic at a place where it is dangerous to do so.

Section 88J provides that the Licensing Authority shall establish and maintain a register to be known as the Demerit Points Register. Where a fixed penalty notice is issued under section 81 for a traffic violation that carries demerit points and the notice is not contested, then the number of demerit points prescribed in the Ninth Schedule is recorded against the driving permit record of that person: section 88K(3). Section 88M provides for the accumulation of demerit points and disqualification. It provides that where a driver has held a driving permit for more than a year and accumulates a specified number of demerit points, they are disqualified from driving for a specified period. 10 to 13 demerit points lead to a disqualification for six months, 14 to 19 disqualify the driver for a year and 20 or more for two years. Section 88M(3) and (4) provide:

“(3) The Licensing Authority shall, before disqualifying a person under subsection (2), give that person notice in writing of its intention to do so, and shall specify a date not less than fourteen days after the date of the notice, upon which the suspension shall be made and call upon the person to show cause why he should not be disqualified.

(4) Where a person fails to show cause under subsection (3) and the Licensing Authority after taking into consideration any facts in mitigation, decides to disqualify that person from holding or obtaining a driving permit, the Authority shall forthwith, in writing, notify that person of the disqualification.”

The disqualification takes effect 14 days after the person has been informed and the person must surrender his driving permit to the Licensing Authority. When the disqualification period expires, all the demerit points are expunged. Further, all demerit points are expunged if a person does not accrue any points for a period of two years: section 88O.

The key provision for the purpose of this appeal is section 88M(9):

“(9) A person who is disqualified from holding or obtaining a driving permit under this section may, within fourteen days of the receipt of the notice under subsection (4), appeal to a Court of competent jurisdiction against that decision and the decision of that Court shall be final.”

There is another group of sections which are relevant to this appeal. They deal with the more serious offences of:

(i) driving whilst under the influence of drugs: section 70 as amended;

(ii) driving or attempting to drive under the influence of alcohol: section 70A;

(iii) causing death by dangerous driving: section 71;

(iv) dangerous driving: section 71A; and

(v) careless driving: section 72.

The first four of those offences are punishable by substantial fines, periods of imprisonment and prescribed periods of disqualification from driving. However, section 29 of the Amending Act amended the careless driving offence in section 72 so that it was a summary offence. The punishment is a fine and disqualification from driving “for such period as the Court thinks fit”, though this must be not less than one month on a second or subsequent conviction. Section 88F, introduced by the Amending Act, provides, broadly, that where a person is charged with driving whilst under the influence of drugs or of dangerous driving and the Court determines that the offence is not proved, the Court can proceed instead with a charge of careless driving. Section 88H then provides:

“88H A person who, by virtue of an order of a Court under section 88F is disqualified from holding or obtaining a driving permit 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.”

The Appellant relies on the difference between the wording of...