The Queen v. Lau Kwok-kwong

HCMA000049/1984

Dangerous driving - very high speed - gross negligence but not racing or other deliberate dangerous driving - maximum sentence not called for but custodial sentence appropriate - 6 months imprisonment reduced to 2 months.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 49 of 1984

BETWEEN

____

Coram: Hon. Penlington, J. in Court

Date of Hearing: 7th March 1984

Date of Judgment: 19th March 1984

___________

JUDGMENT

___________

1. This is an appeal against both conviction and sentence for dangerous driving in respect of an accident which occurred on the Tuen Mun Highway. Mr. Francis Yim who appears for the appellant sought leave to abandon the appeal against conviction on the grounds that he could not argue that the Magistrate had erred in respect of the conviction of the accused; I think that is quite right and there will be leave to abandon the appeal against conviction.

2. Mr. Yim, however, argued strenuously and ably for the appellant that the sentence is excessive and should be reduced. The Magistrate found that the facts of this case were such that he should impose the maximum sentence of 6 months imprisonment, this being the appellant's first conviction for dangerous driving.

3. The facts of the case, as found by the Magistrate and set out very clearly and fully in his finding, were that on the 22nd September at about 18.30 the appellant was driving his BMW car, along the Tuen Mun Highway on the inside lane. He said in his evidence that he struck the inside kerb, lost control of the vehicle, went right across the road before striking another vehicle being driven along the outside lane. He then spun round and both vehicles stopped. The occupants of the other vehicle in the outside lane were injured but not severely. What is, however is, of considerable importance is the evidence given as to the skid marks of the appellant's vehicle which showed that it was in fact moving sideways to some extent as it went across the road and that this must have reduced its speed substantially. There is no clear evidence as to what was the appellant's speed. The motor vehicle examiner who saw the skid marks said that in his expert opinion the speed was "well in excess of 56 miles an hour". I am not sure where he got that 56 miles an hour from. The appellant was not represented before the Magistrate and that point was not pursued. He agreed with the Magistrate that a speed of 80 miles an hour was not an unreasonable estimate of the appellant's speed. That estimate of 80 miles an hour was obtained by the Magistrate from the evidence of a Mr. Choi who was driving the other car and who he found to be an impressive and honest witness. He said that he would say that the appellant was doing double his speed and that he was doing about 40 miles an hour. Mr. Yim argues that the Magistrate was not entitled to accept that speed of 80 miles an hour and he should have accepted a lower speed as being more favourable to the accused. Be that as it may I am quite satisfied from the evidence that the appellant was travelling at a grossly excessive speed. There was not, however, any suggestion that he was racing.

4. We do not have, as is the case in many countries overseas, a provision whereby overtaking on the inside lane on a multi-lane highway is in itself an offence. This seems to me as a classic illustration of the danger of overtaking at high speed on an inside lane.

5. The Magistrate said that taking into account that very high speed he considered that in view of the traffic accident record on this Highway, which is well known, taking into account the fact that in mitigation the appellant showed no remorse whatever but was only concerned about his own licence that a sentence of 6 months imprisonment, the maximum, was appropriate. I entirely agree with him that this case did call for a custodial sentence. I must, however, bear in mind the dicta of the Court of Appeal in the case of Cheung Kin-man(1). There the Court endorsed the remarks of the Chief Justice in Chung Man-kin(2). Bewley J, said:

"We feel that it is not wrong in principle to impose prison sentences in appropriate cases of dangerous driving causing death."

In view of the fact that the legislature had laid down that on summary conviction a maximum imprisonment of 12 months could be imposed I do not see how it could ever be possibly argued that a prison sentence was wrong in principle if the legislature had laid down that it was. The court went on to say however that an immediate prison sentence should only be passed for offences involving "deliberate gross negligence or deliberate dangerous driving. Here there was no question of deliberate dangerous driving except to the extent that he was travelling at a very high speed. He obviously knew he was travelling at a very high speed and he must have been aware of the dangers that flowed from that. That, in my view, in this case is deliberate gross negligence. A sentence which is the maximum should however only be passed if there are no mitigating factors present. Here I think clearly there were in that this was not deliberate dangerous driving but driving at a grossly excessive speed. That being so I do not think the maximum sentence of 6 months should have been imposed. However it is a case where immediate custodial sentence is correct. In Cheung Kin-man, where there was a death involved the court considered that a sentence of 3 months imprisonment was correct. There were, however, several other mitigating factors such as the lapse of time since the incident. I think that a proper sentence in this case is one of two months imprisonment. In cases of this sort the imposition of an immediate custodial sentence, no matter how short, has a severe deterrent effect. I do not propose to interfere with the disqualification. The appeal will be allowed to that extent.

6. The appellant has already been in custody for 13 days which will be deducted from that sentence.

Representation:

Mr. Francis Yim (Francis Yim & Co.) for Appellant

Mr. Turnbull, Crown Counsel, for the Respondent

(1) Criminal Appeal No. 720 of 1981

(2) (1978) HKLR 544