Cheung Fuk Wah v. The Queen

CACC000292/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 292 OF 1972

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Coram: Leonard J.

Date of Judgment: 5th June, 1972.

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JUDGMENT

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1. This is an appeal against sentence only. The appellant, a bus driver, pleaded guilty to careless driving and was fined $500 and disqualified from driving all vehicles for a period of one year. The facts as given to the learned magistrate and as admitted by the appellant were meagre in the extreme and were as follows:-

"At about 7.15 hours on 24th September 1971 a goods vehicle registration AV 4525 stopped in the west bound carriage way of Lee Yue Mun Road waiting to turn right into an unnamed road. A bus of Kowloon Motor Bus Co. came up from behind this goods vehicle and struck the rear of the goods vehicle. After the collision the bus mounted the pavement and knocked two persons down. Both these persons were taken to Queen Elizabeth Hospital where one of them died."

In mitigation in the court below the appellant had stated that he had lost control after he hit the lorry and ended by saying:-

"perhaps I am inexperienced."

In fact the appellant had been licenced since August 1967 and, having been a conductor with the bus company for ten years, had been a driver for one year before the accident. He had a clear record.

2. My attention was drawn by counsel for the appellant (who concerned himself with the order for disqualification only) to Cheung Chi Shing v. The Queen⁽¹⁾ where Mr. Justice Blair-Kerr in a somewhat similar case commented on the importance of the prosecutor describing to the court the behaviour of the offending motorist with as much detail as possible. In the instant case we do not know anything about the degree of suddenness with which the driver of AV 4525 stopped his vehicle, the speed of the motor bus prior to the accident the prevailing weather conditions or the presence or absence of other traffic. I am left with the impression that the facts that the bus went out of control after the accident and that a death resulted must have weighed heavily with the learned magistrate in ordering disqualification. The legislature has thought fit to make a distinction between dangerous driving and dangerous driving causing death but no such distinction exists with regard to careless driving. This, of course, is not to say that a magistrate should not take the consequences of careless driving into account. I consider that he should do so. Nevertheless I am satisfied that the sentence of disqualification was excessive having regard to the paucity of facts before the learned magistrate. To a person like the appellant whose livelihood depends on his having a licence disqualification is a very severe penalty. I appreciate that it was imposed by the learned magistrate for the protection of the public. Nevertheless its effect on this particular appellant is so severe as to compell me on the circumstances shown on the record to discharge the order for disqualification and substitute for it an order for endorsement. The fine imposed will stand.

3. The appeal is allowed to that extent.

5th June, 1972.

Representation:

J. Leong (Liang & Ip) for Appellant.

Caird for Respondent.

Oral judgment reduced into writing.