HKSAR v. Leung Wing Fai

HCMA000310/1998

HCMA310/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellant Jurisdiction)

MAGISTRACY APPEAL NO. 310 OF 1998

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Coram : Hon Nguyen J in Court

Date of hearing : 30 June 1998

Date of judgment : 30 June 1998

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J U D G M E N T

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1. The Appellant pleaded guilty to the charge of reckless driving causing death before Mr Bruce McNair on 24th March 1998 and was sentenced to six months' imprisonment. He now appeals against that sentence on the ground that the sentence is too severe.

2. Mr Lim, who appeared for him this morning, and indeed also for him when he pleaded guilty before the Magistrate, has basically put forward two grounds. Firstly, that there were no aggravating factors in this particular case; and secondly, that the learned Magistrate took into account certain matters in assessing the sentence which he should not have taken into account. These matters were :

(1) that the Appellant was speeding;

(2) that the learned Magistrate had wrongly said that the Appellant had changed lanes without giving any signals;

(3) that the car, which the deceased person was driving, had a fuel tank which, upon impact, might have exploded and caused a fire to the car; and

(4) that the learned Magistrate had wrongly taken into account the previous convictions of the Appellant.

3. As the learned Magistrate said, when he sentenced the Appellant, the Appellant was giving his Counsel a very difficult and uphill road to travel, to try and keep him out of prison. Mr Lim, this morning, has said on behalf of the Appellant everything which could possibly be said in a case such as this.

4. This was, by any standard, a very bad case of reckless driving. The Appellant was driving along the Island Eastern Corridor at about midnight on 20th August 1997. He was driving at a speed of about 100 kph when the speed limit on that road was, and still is, only 70 kph. He was following a private car which was driven by the 42-year-old deceased man. In the adjacent lane was a goods vehicle which was also going in the same direction. The Appellant, in an endeavour to overtake the goods vehicle and also the vehicle driven by the deceased, then changed lanes from the lane of the deceased man's vehicle to the lane where the goods vehicle was going. In the course of changing lanes, the Appellant's vehicle collided into the rear of the deceased's vehicle and caused the deceased's vehicle to surge forward and mount the southern concrete barrier. The deceased's vehicle spun clockwise and slid along the first lane of the Island Eastern Corridor. It caught fire and there was also an explosion. The deceased person was trapped inside his vehicle and was later rescued by firemen. He was severely burnt and was certified dead at 00:50 hours the following morning.

5. The goods vehicle, which was being overtaken, also could not stop on time and collided with the Appellant's vehicle. Its nearside front collided into the nearside rear of the Appellant's vehicle. The driver of the goods vehicle lost control of his vehicle and the offside rear of the goods vehicle grazed the concrete central embankment.

6. Mr Lim quite properly concedes that the learned Magistrate was entitled to take into account the fact that as a result of the reckless driving by the Appellant, an innocent motorist was killed.

7. In relation to the four matters raised by Mr Lim, in my judgment, the Appellant was clearly speeding when he was travelling at 100 kph. The complaint that the learned Magistrate had wrongly taken into account the fact, which was not alleged in the Statement of Facts, that the Appellant had changed lanes without signalling, to my mind, does not go any way towards helping the Appellant to say that if the learned Magistrate had not taken that into account, the accident could have been avoided. Whether the Appellant signalled or not, the basic cause of the accident was the fact that the Appellant collided into the car driven by the deceased, and it was only after that that the goods vehicle then collided into the Appellant's car. Whether or not the learned Magistrate was right to say that the petrol storage tank of the deceased's car posed a danger, the fact remains that it was obviously because of the collision that the gas storage tank exploded and caused the fire.

8. In relation to the previous convictions of the Appellant, it is quite clear that the learned Magistrate did not impose the sentence that he did because of these previous convictions. He said in his Reasons for Sentence that the only effect these previous convictions had was the fact that the Appellant could not be treated in the same manner as a person of good character who pleads guilty at the earliest opportunity. I agree with Mr Chan, appearing for the Director of Public Prosecutions, that this act of reckless driving by the Appellant caused danger to the occupants of two other vehicles, and that the Appellant, at the time when he changed lanes in the manner that he did, must have realized that he was causing danger to the drivers of the two other vehicles. In my view the sentence which was imposed cannot be said to be manifestly excessive.

9. Drivers who drive on the roads of Hong Kong in a reckless manner have to be warned that if they carry on driving in that fashion and tragic consequences arise, then they have to bear the consequences of that bad driving. The vehicular population of Hong Kong is rising by the year and the streets of Hong Kong are getting more crowded, and unless everybody on the road drives with extreme care, dangers will be posed to motorists and to pedestrians. The appeal against sentence is dismissed.

Representation:

Mr Johnny Chan, S.G.C., for Director of Public Prosecutions

Mr Ernest Lim, inst'd by M/s Yuen & Partners, for the Appellant