The Queen v. Yeung Chuen Shing and Others

HCMA000835/1988

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 835 OF 1988

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BETWEEN

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Coram: Hon. Mr. Justice Barnes in Court

Date of Hearing: 18th October 1988

Date of Delivery of Judgment: 18th October 1988

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J U D G M E N T

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1. The four Appellants were among a group of defendants convicted after trial of the offence of reckless driving. The 1st Appellant was fined $3,000, the 2nd $4,000, the 3rd $2,500, and the 4th $2,500, and each of them was disqualified from holding or obtaining a driving licence for a period of 12 months. They now appeal against sentence and their appeal is limited to an attack on the length of the disqualification order in each case.

2. The offences occurred on Ting Kok Road which links Tai Po with Brides Pool. The offences were detected by police officers of a Special Unit operating in the New Territories with a view to detecting motorists indulging in road racing.

3. The learned magistrate had the advantage of a view of the road and in particular of the part of the road over which the reckless driving was alleged to have taken place. The evidence before him was to the effect that the distance under which they were observed was 100 metres and the speed at which they were travelling was somewhere between 70 and 60 kilometres per hour.

4. In the area where this took place there was a sharp bend on the crown of the road which "slopes away very steeply at the apex of the corner". The police officers' evidence was to the effect that they became aware of the existence of the motorists on hearing loud revving of car engines and screeching of tyres. one officer then saw the first group of vehicles drive past his position at "high" speed about 1 metre apart from each other, and approximately two-thirds of the righthand side of each vehicle had encroached on the opposite carriage way. Shortly after this first group of vehicles drove past - and the period of time which elapsed was variously estimated at between 2 and 6 seconds - they heard further loud engine revving and screeching of tyres and then saw the second group of two vehicles drive past at high speed. Again the distance between the vehicles was only about l metre and on this occasion about half of each vehicle encroached on the opposite carriage way.

5. The learned magistrate said this:

"I consider this to be a particularly bad case of reckless driving,"

He goes on to mention the speed at which the vehicles were driven and the manner in which they were driven; namely, encroaching on the opposite carriage way; and negotiating a bend beyond which there was a steep slope. He then went on to say:

"If a vehicle or vehicles were approaching on the opposite carriage way a collision would have been inevitable. Serious harm and even death might have resulted, not only to the drivers involved in the collision and the passengers, but also to other vehicles in that group and the second group following closely behind.

6. Mr. McCoy for the Appellants has said that the period of observation was short in time and short in distance. He does not accept the learned magistrate's finding that this was a bad case of careless driving.

7. I cannot agree with Mr. McCoy. I fully agree with the learned magistrate's assessment, an assessment after a visit to and view of the scene.

8. The learned magistrate in passing sentence said that because it was such a bad case he thought that a deterrent penalty was required.

9. Mr. McCoy submits on behalf of the 3rd Appellant that as he had a clear record the passing of a deterrent sentence on him was wrong in principle. Two of the Appellants have significant traffic records whilst the 4th Appellant had a record of which the prosecutor remarked that it contained "nothing significant".

10. The magistrate has differentiated between the Appellants by imposing different monetary penalties. I cannot find anything wrong in principle with his decision to order a similar period of disqualification for similar acts of reckless driving committed on the same occasion.

11. Mr. McCoy has drawn my attention to the schedule of Cap. 375 of the Ordinance which provides for disqualification once a motorist has logged up a certain number of points. That schedule assigns ten points for the offence of reckless driving, but as a motorist needs to score 15 points before disqualification operates under that Ordinance, he argues that that is an indication that the legislation does not see a disqualification order as automatically following a conviction for reckless driving. There is undoubted merit in that submission. The Road Traffic Ordinance also recognises that disqualification does not automatically follow a conviction for reckless driving. This however, was not a case of mere reckless driving. This was a bad case of reckless driving on the part of each Appellant. I can see no reason to interfere with the magistrate's decision to order a disqualification for a period of 12 months in each case. I must therefore dismiss the appeal of each Appellant.

Representation:

Mr. Wilson, C.C. for Crown

Mr. G.J.X. McCoy (Tang, Wong & Cheung) for Appellant