Chan Hon Chung v. The Queen
Read the full judgment text of CACC 320/1978 on BabelCite. This Court of Appeal judgment.
1. This is an appeal against conviction and sentence. The facts leading up to conviction are as follows.
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CACC000320/1978 IN THE HIGH COURT OF HONG KONG CRIMINAL APPEAL NO. 320 OF 1978 -----------------
----------------- Coram: Li, J. in Court Date of Judgment: 24th April 1978 Cheng Yuan (Alfred Lau and Co.) for appellant Lindsay for Crown ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction and sentence. The facts leading up to conviction are as follows. 2. The appellant on the 6th of October last year came to one of the vehicles parked illegally along a road in the vicinity of Hau Wong Road. The police party consisting of constable Wat Yui Sang and sergeant So Yat On were dishing out tickets for such offending vehicles. When the appellant arrived one of the tickets had been put on his vehicle. After that, constable Wat went to the back of the appellant's vehicle. He stood at a distance of about 2 to 3 feet away from it where constable Wat directed and urged the other vehicles to go away. I should add that there was some argument between the appellant and this police party on the fact that the appellant was given a ticket for illegal parking prior to constable Wat went to the rear of the appellant's vehicle. While the constable was standing there, the appellant suddenly backed his vehicle towards constable Wat touching his left leg. The constable had to jump away. He banged on the appellant's car and shouted at him to stop. This did not prevent the appellant from backing the vehicle a second time towards the constable before coming to a halt. 3. The sergeant also gave evidence in corroboration. 4. According to the appellant who gave evidence in the lower court there was no argument. He knew he received a ticket for illegal parking. He merely started the engine in order to drive away. Soon after he started his engine he heard a bang on his vehicle which had not moved at all. The constables came back and accused him of reversing the vehicle. The learned Magistrate, having heard the evidence of prosecution witnesses and the appellant believed the prosecution and convicted the appellant of Dangerous Driving, and sentenced him to a fine of $500 and disqualification from driving all vehicles for one year. 5. The grounds of the appeal are:
6. The 4th and additional ground of appeal is that the learned Magistrate had applied the wrong test in that in his findings he adopted a subjective in stead of an objective test. 7. Having regard to the evidence as adduced in the lower court one can hardly say that there is no evidence to support the conviction. Nor has argument been advanced that there had been improper admission of evidence. The main argument is that the conviction is against the weight of evidence and that the wrong test had been applied. 8. A passage from the Magistrate's statement of findings is cited:
9. Learned counsel for appellant criticise that this indicated the learned magistrate was in fact applying the subjective test in saying what was in the appellant's mind. He had not applied the objective test in saying what constituted dangerous driving. 10. An answer to this criticism is to be found in the opening sentence "Having heard the evidence and considered the submissions I was left in no doubt that appellant was guilty of dangerous driving." 11. Whatever was in the appellant's mind was subjective. But if he was found by his own conduct to drive deliberately his vehicle to alarm or injure people, there can be no doubt he drove dangerously that whatever test is to be applied. This ground of appeal must fail. 12. As regards the ground that the conviction was against the weight of evidence learned counsel relies strongly on the discrepancies of evidence between P.W.1 and P.W.2. 13. P.W.1. the constable, said that the vehicle had touched his leg on the second reverse and he had to jump. P.W.2, the sergeant, said the vehicle touched the constable's leg on the 1st reverse and he had to jump. Of course that was a discrepancy and the learned magistrate referred to it as a minor discrepancy. The fact remains that the magistrate believed the prosecution witnesses that the appellant had reversed the vehicle. That must be the main issue. He found also that the appellant had reversed twice. Whether the constabld had to jump on the first or the second occasion, and whether the vehicle touched the constable's leg on the 1st or second occasion are of minor importance. Suffice it to say that the magistrate accepted the prosecution evidence that the appellant had deliberately reversed twice, that he had deliberately frightened the constable in the manner described in evidence. This constitutes Dangerous Driving. The appeal against conviction must be dismissed. 14. As to sentence it is to be observed that driving is the appellant's occupation. He is the breadwinner and has a clear record since 1969. Under Section 11(4) of the Road Traffic Ordinance disqualification is not compulsory. It is accepted that the appellant committed this offence in a moment of anger. The disqualification will rob him of his job and will cause him and his family a great deal of hardship. Crown counsel expressed sympathy for the appellant and I am inclined to feel that a conviction accompanied by endorsement will be a sufficient lesson and a fine of $500 is a sufficient deterrent. I would allow the appeal against sentence to the extent that the disqualification be quashed. The appeal against conviction is dismissed. The appeal against sentence is allowed by quashing the sentence of disqualification. Representation: |