HKSAR v. Muhammed Ramzan

HCMA 285/2019

[2019] HKCFI 2392

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 285 OF 2019

(ON APPEAL FROM STCC NO 1521 OF 2019)

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Before: Hon Campbell-Moffat J in Court

Date of Hearing: 27 September 2019

Date of Judgment: 27 September 2019

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JUDGMENT

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Introduction

1.The appellant pleaded guilty before Principal Magistrate Ernest Lin (as he then was) on 14 May 2019 to a single charge of Dangerous Driving contrary to section 37(1) of the Road Traffic Ordinance, Cap 374.  He was fined $7,000, disqualified from driving for 15 months and required to take a driving improvement course within the last three months of his disqualification.  By his notice of appeal dated 27 May 2019, the appellant appeals that sentence on the ground that it was manifestly excessive.

The prosecution case

2.The appellant approached a zebra crossing with two vehicles ahead of him, which had stopped to allow a group of pedestrians to cross.  The appellant failed to stop and overtook both of the stationary vehicles and crossed the zebra crossing whilst it was still being used by an elderly lady.  The gravamen of the prosecution case was that this was a busy mixed residential and commercial area with many pedestrians.  The offence involved overtaking two vehicles, manoeuvring into the opposing traffic lane and crossing the zebra crossing whilst it was still in use.  The situation was aggravated by the medium goods vehicle operated by the appellant.

The grounds of appeal

3.The appellant maintained that the sentence was manifestly excessive in all the circumstances given that there were no aggravating circumstances.  Mr Thomas Martin, on behalf of the appellant, submitted various authorities on the range of sentence previously given for dangerous driving including those where injury or damage had occurred.

4.Both parties accepted that sentencing in these cases was fact specific.

The sentencing hearing

5.The sentencing hearing appears to have been carried out at break neck speed.  Mr Martin, who appeared for the appellant below, limited his mitigation to 21 lines, only seven of which went to the appellant’s personal circumstances and none to his previous driving record or that he was otherwise of good character.

Conclusion

6.The magistrate correctly applied the relevant legal principles.  The mandatory minimum disqualification was six months. However, no one brought to his attention the fact that the appellant had not been previously disqualified and, over a 24‑year driving career, had only been dealt with for minor traffic offences.  Other than a cursory mention of his family, defence counsel did not highlight the appellant’s background, his employment or the true consequences of a prolonged disqualification.  Indeed, he did not mention the length of disqualification at all.  The magistrate was taken to no authority, nor urged to consider a disqualification period of six months, given that this was the appellant’s first hearing of this kind.

7.Whilst the degree of risk to pedestrians was significant, it was not the worst of its kind.  Luckily no one was injured and his manner of driving caused no adverse reaction from other road users.  It does not appear that the true ramification of loss of employment was canvassed before the learned magistrate.  It is trite that the effect of a disqualification on a professional driver may properly be taken into account in the sentencing process.  Whilst they have an even greater duty to take especial care[1], so too must it be recognised that the loss of a license may have a more prejudicial effect than it may have upon other offenders who are not dependent upon their driving licence for a living.  Loss of income to a man with a large family is not insignificant as a punishment.  The length of disqualification may affect his ability to keep his employment or to find other employment in the interim at a level at which he can support his wife and children.

8.Sentencing in these circumstances very much turns upon the particular facts.  It is incumbent upon counsel to ensure a busy magistrate has all of the facts necessary to do justice to any given case.  The magistrate was given little assistance as to the true effect upon the appellant of a substantial period of disqualification and nothing was advanced as to his minor previous traffic violations against the background of the length of time that he had been driving and driving professionally.  If that had been done, I am satisfied that the magistrate may have thought that a period of disqualification of six months was more appropriate in the circumstances of this case.

9.The appeal will be allowed.  The sentence of the magistrate stands save for a reduction of disqualification period from 15 to 6 months. There will be no order as to costs.

Ms Audrey Parwani SPP, of the Department of Justice, for the respondent

Mr Thomas Martin, instructed by Chaudhry Solicitors, for the appellant