R. v. Lo Kwong Sing

HCMA000329/1995

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.329 OF 1995

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Coram: Hon Patrick Chan, J. in Court

Date of hearing: 21 June 1995

Date of judgment: 21 June 1995

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J U D G M E N T

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1. The appellant was found guilty of careless driving and was fined $1,500, ordered to pay cost of $500 and was disqualified for 3 months.

2. The prosecution witness was a housewife. She, together with two young children, boarded the appellant's taxi in the Yiu On Estate. She intended to go with her children to Lee On Estate in Sha Tin which is obviously in the New Territories. The appellant was reluctant to take them and asked them to get a New Territories taxi. PW1 insisted and so the appellant started his taxi. According to her, the appellant drove at a very high speed. As an experienced driver for over 10 years, she said she could actually see the speedometer and it was about or over 100 km per hour. I think she qualified that by using the words "sometimes it was over 100 km per hour". Upon arrival at the destination, she and her children got off the taxi. They tried to cross the road from behind the taxi. According to them, when they were about to cross, they were about 4' to 5' away from the tail of the taxi. Then the taxi started to reverse, she had to be warned by her daughter. They stepped back and she found that the taxi was then about 1' from them. The taxi driver then hurled some abuses at her and drove off.

3. The appellant denied in his evidence that he had travelled at great speed and that he had ever reversed without paying attention to the housewife and her two children.

4. I have considered the grounds of appeal and the skeleton submission of Counsel for the appellant. A lot of criticism had been levied at the learned magistrate's finding that the taxi was travelling at a very high speed. In my view, the learned magistrate was perfectly entitled to accept, as he did, the evidence of PW1 who was an experienced driver herself, and that the appellant was indeed travelling at times at over 100 km per hour. Notwithstanding what was stated in the charge sheet, in my view, the conviction of careless driving was also based on the behaviour of the appellant when his car arrived at Lee On Estate. It included the reversing without taking care and attention and ensuring that pedestrians behind his car was safe. That was also part of the consideration in the mind of the learned magistrate. If it had been merely ill manner, I do not think there is any need for the housewife to lie about the high speed and the reversing and what is more, to have taken the trouble of reporting to the police on the following day about the conduct and the manner of driving of the appellant. She had two young children with her. She had already got off the taxi and there was no reason why she still wanted to accuse the appellant if the appellant had not behaved and driven his taxi in the way she described.

5. The appellant did not deny reversing. He said that he did it slowly. He said he paid attention but saw no one there. Yet according to his evidence, he said someone suddenly banged his car and accused him. There is no reason why, if he had paid care and attention to someone when he was reversing, that someone would have banged on his car and accused him of not paying sufficient attention when he was reversing. In these circumstances, I think the learned magistrate is perfectly entitled to disbelieve him. I think there is sufficient evidence for the learned magistrate to find that the appellant was careless in his driving. So the appeal against conviction is dismissed.

[Submission on Sentence]

6. I have considered the circumstances of the offence. On the one hand, the appellant is a professional taxi driver. The public is entitled to expect a very high standard from such a professional driver who serves the community. The conduct of the appellant in this case was disgraceful to say the least. On the other hand, I do not think it is such a bad case that it could be described as a deliberate or reckless driving in the circumstances. I have also considered the effect of any disqualification on the appellant bearing in mind his previous conviction of careless driving which I accept was not a very serious case judging from the smallness of the fine imposed upon the appellant.

7. So in the circumstances, I think that a fine of $1,500 with an order for costs would serve as a sufficient warning and punishment to the appellant. I would think that the learned magistrate had failed to have sufficient consideration of the circumstances of the case and the effect of the disqualification on the appellant. I would allow the appeal against sentence in part and vary the sentence by quashing the order for disqualification.

Representation:

Mr P. Cantrill, S.C.C., for Crown

Mr Henry Ma, inst'd by M/s Wong & Hung, for Appellant