Lam King Cheong v. The Queen

CACC000387/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 387 OF 1971

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Coram: Pickering, J.

Date of Judgment: 28th July, 1971.

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JUDGMENT

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1. The appellant was charged with careless driving, contrary to Section 14(1) of the Road Traffic Ordinance, Cap.220, and upon conviction was fined $100 and disqualified from holding or obtaining a driving licence for one month. He appeals against conviction and sentence.

2. The facts are that at a point in Laichikok Road where there are three traffic lanes in each direction the appellant had parked a private car half on and half off the pavement. Upon being told by a policeman that the area was a no waiting area, he got into the car and made for the centre lane with the intention of turning right at the next road junction. According to the driver of a delivery van who was travelling in the centre lane on the same side of the road as the appellant's private car and in the direction of that car, the appellant pulled out from the pavement without hand signal or use of traffic indicator in a manner which caused the witness to brake, stopping his vehicle at a distance of some 6" from the appellant's car, which was then diagonally across the road.

3. These facts were disputed by the appellant but a very precise corroboration was available from the police offier who had told the appellant to move on, and this witness testified to the squeal of brakes from the delivery van when it was forced to stop. Whilst there was some possible ambiguity in the evidence of the driver of the delivery van as to whether he stopped because of the appellant's action in driving into the centre lane or because a truck in front of him had stopped at traffic lights, the more probable interpretation of his evidence is that he was forced to stop because of the diagonal approach of the appellant's car, and the evidence of the policeman puts this beyond any doubt. The learned magistrate found that the goods vehicle had to brake sharply to avoid a collision, and was, on the evidence, perfectly entitled to come to that conclusion. The appeal against conviction is dismissed.

4. As to sentence, the fine of $100 is upheld, but in my view the disqualification for a period of one month is, on the facts of this case, unduly severe, and indeed the Crown do not seek to uphold that portion of the sentence. It is, indeed, doubtful if the sentence would in any event have any effect because in error the learned magistrate disqualified the appellant from holding or obtaining a driving licence of Class A, which relates to taxis, and in his Statement of Findings says frankly that he had intended Class B, which relates to goods vehicles of a weight unladen not exceeding 2 tons and private cars.

5. The appeal against sentence is allowed to the extent that the disqualification from holding or obtaining a driving licence for one month is set aside.

Representation:

Ming Hwang (P.H. Sin & Co.) for appellant.

Duckett S.C.C. for Crown.