Chan Po Cheung v. The Queen

CACC000327/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 327 OF 1973

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Coram: Briggs, C.J.

Date of Judgment: 16th June, 1973

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JUDGMENT

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1. The appellant was convicted of the offence of careless driving contrary to section 14(1) of the Road Traffic Ordinance. He was sentenced to a fine of $300, and was disqualified from holding or obtaining a driver's licence for three months. The magistrate also ordered that his present licence or any licence held by him hereafter to be endorsed.

2. The appellant appealed against conviction and sentence. I upheld the conviction but varied the sentence by quashing the order for disqualification and ordered that only the current licence of the appellant be endorsed.

3. The accident occurred at about 7.20 p.m. in Waterloo Road on November 2nd, 1972.

4. A woman was knocked down by the appellant's car as she was crossing the road at a studded crossing. The woman gave her version of the accident and so did the appellant. The two versions were very different. It is obvious from the judgment of the magistrate that he accepted the version of the woman and rejected the appellant's version. However, the magistrate did accept that the appellant was driving his car at "thirty miles per hour or a little more". The police plan of the accident shows that that part of Waterloo Road where the accident occurred is straight. The road is divided down the centre by rails and there are three lanes of traffic on the side with which we are concerned.

5. The appellant cannot be said to have driven carelessly simply because he was driving at thirty miles an hour.

6. Accepting the version of the facts as given by the woman his carelessness consisted in not slowing down more than he did when he saw the beacon-lit crossing and other cars to his left stopping to allow a pedestrian to cross. It was momentary carelessness.

7. The magistrate said that he considered the offence a serious one. And it is true that the consequences were serious to the victim of the accident.

8. Mr. Ching, counsel for the appellant, drew the attention of the court to the case of Cheung Chi Shing v. R.⁽¹⁾. The present Senior Puisne Judge in that case pointed out that disqualification is primarily for the protection of the public. And further, that it is only when there is a bad case of carelessness that an order for disqualification should be made on a conviction of careless driving. He added that in this connexion it is necessary to pay regard to the driving record of the accused person.

9. The appellant in this case has been driving since 1949, at first in America, since 1957 in Hong Kong. The magistrate has recorded that he has one previous conviction "for disobeying a traffic light".

10. The record does not indicate of this conviction was admitted by the appellant. However, at the hearing of the appeal it was treated as having been admitted. What is more important is that we do not know the date of the previous conviction: nor whether the magistrate took it into consideration when imposing the order for disqualification.

11. Looking at the record of the case and bearing in mind the long period during which the appellant has been driving without impinging the law (with one minor exception), I do not think that this is a case which merits an order for disqualification. Every case, of course, depends upon its own particular facts but I do not think that this is a "bad" case of carelessness in the sense in which that expression is used in Cheung Chi Shing⁽¹⁾.

12. For these reasons I varied the sentence imposed by the magistrate as I have indicated above.

Representation:

Charles Ching (F. Zimmern & Co.) for Appellant.

Harte, C.C. for Crown/Respondent.

(1) (1964) H.K.L.R. 1.