Yeung Ka Chu v. The Queen

CACC000417/1974

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 417 OF 1974

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Coram: Huggins, J.

Date of Judgment: 4th July 1974.

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JUDGMENT

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1. This is an appeal against sentences imposed for a number of driving offences. The Appellant was driving a motorcycle at a reckless speed and killed an elderly woman. The offence was committed in an area where there was a speed limit. He was knocked from his machine but immediately tried to escape and despite the prompt intervention of another driver, who, incidentally, is to be commended for his action, the Appellant got away. He did not report the accident but he was later traced and arrested. He was at the time of the accident driving without third party insurance - and could not have obtained third party insurance because he was disqualified from driving by order of a court, having been convicted in October 1972 of taking a conveyance without authority and driving without third party insurance. On that occasion he was given the somewhat unusual and very lenient sentences of 18 months' probation. He obviously did not learn his lesson from that conviction. The learned magistrate imposed sentences of 9 months' imprisonment for the dangerous driving causing death; a fine of $1,000 or 4 months' for failing to stop; a fine of $750 or 3 months' for failing to report; a fine of $1,000 or four months' imprisonment for driving without third party risk insurance and 6 months' imprisonment for driving whilst disqualified. The magistrate then ordered that all those sentences should run concurrently. With respect to him, I do not think that could be right. Where a sentence of imprisonment is imposed in default of a fine and there is a concurrent substantive term of imprisonment of the same, or greater length, the effect is to make nonsense of the fine: the convicted person can decline to pay the fine and he serves no additional term of imprisonment.

2. In my view the sentence of 9 months' imprisonment for the dangerous driving offence was a proper one. I take the same view of the term imposed for driving whilst disqualified. Those were separate and distinct offences for which, in my view, consecutive terms of imprisonment should be imposed and the order of the magistrate must be altered accordingly. Driving without third party risk insurance is a very serious offence, but in the present case the Appellant could not have obtained third party insurance because he was driving whilst disqualified, and I think there is sufficient nexus between those two offences to justify concurrent sentences. For the fine and term of imprisonment in default on the fourth charge I substitute a substantive term of 3 months' imprisonment, which is to be concurrent with the others. The offences of failing to stop and to report are also serious matters, although in the circumstances of the present case the Appellant did not escape. The excuse which the Appellant gave was that he was shortly to be married and he was frightened that his marriage at the date fixed would be prevented. I sympathise with that feeling on his part. The very heavy fines have not been paid and I think that the proper course in the present ...(illegible) is to substitute for them short terms of imprisonment: on each of those charges there will be a term of 14 days' imprisonment, which shall be concurrent with each other but consecutive to the other sentences.

3. The appeal is allowed and I order accordingly.

4th July 1974.

Representation: