HKSAR v. Chan Chi Keung

HCMA000640/2000

HCMA640/2000

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO.640 OF 2000

(ON APPEAL FROM TWCC 491 OF 2000)

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Coram: Hon Gall J in Court

Date of Hearing: 24 October 2000

Date of Judgment: 24 October 2000

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J U D G M E N T

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1. The appellant was convicted on 8 June 2000 of one charge of driving a public light bus on a road recklessly, contrary to section 37(1) of the Road Traffic Ordinance, Cap.374. He was convicted after trial and he was sentenced by the magistrate to a period of three months' imprisonment suspended for 18 months, fined a sum of $5,000 and disqualified from holding or obtaining a driving licence for a period 18 months. He now appeals the sentence in respect of the disqualification of holding or obtaining a driving licence.

2. The facts were that on 31 January 2000, the appellant who had held a driving licence for over 30 years was driving a public light bus on Castle Peak Road near Ma Wan Pier at Tsuen Wan. In order to pass another mini-bus to arrive at a pick-up spot before that other mini-bus, he drove his vehicle across double white lines onto the opposing carriageway, and through, whilst on the wrong side of the road, a pedestrian crossing where a pedestrian was in the process of crossing that carriageway. He struck that pedestrian causing her injuries. He had, he admitted, seen the pedestrian standing on the pavement of that other carriageway before he pulled onto the wrong side of the road to pass the other mini-bus.

3. The first ground of appeal is that the learned magistrate was wrong in principle in ordering a disqualification without giving an opportunity to the counsel for the appellant to address her on the exercise of her discretion to disqualify his licence. She has a discretion pursuant to section 59 of the Road Traffic Ordinance to disqualify the appellant from holding or obtaining a driving licence for any offence committed contrary to the Ordinance while driving a motor vehicle. The magistrate did say after hearing mitigation :

"All right, case is adjourned to 8 June for background reports. All sentencing options are open. Imprisonment is likely and you are remanded in jail custody. Anything else?"

4. To an alert counsel, a statement by a magistrate that "all sentencing options were open" would be an indication that, in this case, the discretion of the disqualification of the appellant was a possibility. It was at that point for counsel to address the magistrate in respect of that exercise of discretion. However, Mr Kwok argued, and he had some force in his argument, that not all counsel are alert as they might be, and that such an oblique reference to the exercise of a discretion may not have been perceived by counsel and that the magistrate ought to have been more direct in her declaration that there was possibility that the licence of the appellant might be disqualified. This is not sufficient for me to allow the appeal and quash the conviction given that I have a general discretion to review the sentence and determine whether it is appropriate in all the circumstances.

5. The appellant had 22 previous road traffic convictions since 1996, most of them for picking up in a restricted zone and none of them for any particularly serious offence. He also had a previous conviction in 1987 for assault occasioning actual bodily harm which is regarded as spent and had no effect upon the decision made by the magistrate. Mr Kwok rightly argued that there is nothing in the driving record of the appellant that indicate that during the period covered by that record he had been a danger to the public.

6. The magistrate reviewed the law in respect of cases of reckless driving. She referred to R v. Mak Kau [1978] HKLR 134 where Briggs CJ held that where there was a deliberate risk-taking or driving in an irresponsible manner, a custodial sentence should be imposed. She further considered R v. Chan Kwai Lai [1968] HKLR 31 where Blair Kerr J said that in deciding whether to disqualify a driver from holding or obtaining a licence, the most important consideration was the protection of the public. She further considered Whittal v. Kirby [1947] 1 KB 194 where the Lord Chief Justice said :

"That a man is a professional driver cannot, as it seems to me, by any possibility be called a special reason. The fact that drivers are professional drivers would of itself indicate that they are more likely to be habitually on the roads than people who drive themselves, so there is all the more reason for protecting the public against them. By exercising discretion in favour of an offender because he is a professional driver or merely because he drives himself for business purposes, it is obvious that the court is taking into account the fact that in such cases disqualification is likely to work greater financial hardship than in the case of a person who uses his car for social or casual purposes. There is no indication in the Act of Parliament meant to draw any distinction between drivers who earn their living by driving or who drive for purposes connected with their business and any other users of motor cars."

7. The magistrate did not consider the conviction record of the appellant to be a feature which needed to exercise her mind. She did find, having considered the nature of the offence committed by the appellant, that he knew it would be dangerous to overtake in the situation that he did, and she held that the manoeuvre which he undertook amounted to a deliberate risk-taking within the meaning of R. v. Mak Kau.

8. Section 37(2) of the Road Traffic Ordinance as was then in force (it having been repealed on 1 July 2000) provided :

"(2) A person convicted of an offence under this section shall be disqualified for a period of not less than 18 months in the case of a second or subsequent conviction or of a conviction subsequent to a conviction under section 11(1) of the repealed Ordinance unless the court or magistrate for special reasons orders that he be disqualified for a shorter period or that he not be disqualified: ..."

In the case before this magistrate, it was not a second offence, however, it was a very serious offence of reckless driving. It was one where the learned magistrate considered that custodial sentence appropriate and I do not dispute the correctness of that decision.

9. In all the circumstances, a period of disqualification was appropriate. I must consider, therefore, whether the period of 18 months is an appropriate period. In my view, it is. Although the appellant does not have a record of reckless driving, he drove in such a manner that he is clearly prepared, in the interest of obtaining a greater number of passengers for his public light bus, to take whatever risk he considered necessary or appropriate in the circumstances to benefit himself. That makes him a danger to the public and one from whom the public must be protected. The magistrate's decision to impose disqualification of 18 months was neither wrong in principle nor manifestly excessive. The appeal against sentence is dismissed.

Representation:

Mr Daniel Ozorio, SGC of Department of Justice, for the HKSAR

Mr Eric Kwok, instructed by Director of Legal Aid, for the Appellant

Remarks:
On application by the Appellant to the Appeal Committee of the Court of Final Appeal: Leave to appeal is refused. Please refer to FAMC000024/2000.