Chung Hon So v. The Queen
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CACC000566/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO.566 OF 1972 -----------------
----------------- Coram: Huggins, J. Date of Judgment: 14th September, 1972 ----------------- JUDGMENT ----------------- 1. This is an appeal against conviction and sentence in respect of offences of Resisting Arrest and Dangerous Driving. The Appellant was convicted on the Arrest charge and was given an absolute discharge with a conviction recorded and in respect of the Dangerous Driving charge he was fined $500 and disqualified from driving for five years. 2. It is necessary to mention that there were other charges laid against the Appellant but these are relevant only in so far as they indicate the history of the matter. A police officer was on duty, obviously intending to stop drivers who were carrying passengers for hire or award in private motor vehicles. He was picked up by the Appellant, who was driving a private motor car and he was taken to a cinema. There, according to the police officer, the car stopped and money was paid. The police officer alleged, and this in fact was admitted, that an offence of carrying passengers for hire or award had been committed and the police officer's story was that when the money was paid he revealed his identity and indicated that the Appellant was under arrest. He said that the Appellant then, in a fury, drove off in what can only be described as a reckless manner and that there were collisions with a moving car and a parked car before the vehicle finally came to rest some distance further down the road, where the Appellant was finally arrested. 3. The Appellant's story was rather different. He said that before they reached the destination which had been indicated by the police officer, i.e. the cinema, the police officer suddenly grabbed him round the neck while the vehicle was still in motion and that as a result of that highly dangerous action he put his foot on the accelerator and the car rushed forward out of control, that being the sole cause of the dangerous driving. In fact he admits that there was danger due to the motion of the car, but he says it was entirely outside his control and entirely due to the conduct of the police officer. 4. There was evidence from the sergeant who was in charge of this police operation and who was standing near the cinema. He says that he saw the car arrive at the cinema and that it stopped. The learned magistrate rightly stated in his Statement of Findings that a crucial question in this case was whether or not the car came to a stop outside the theatre. He says in his reasons:
Counsel for the Appellant fairly points out that at the time that the learned magistrate gave his decision he said
and the substance of the appeal is that the verdict is unreasonable, because it is said that there was no reason for the constable to put his arm round the Appellant's neck when the vehicle finally came to rest after the two collisions and that it must, therefore, have been (if there was a putting of an arm round the neck) before the vehicle came to rest and that in those circumstances the story of the Appellant was at least a possible story and one which could not be rejected as totally unreasonable. Mr. Caird suggests that the two passages, one in the Statement of Findings and one at the time of the conviction, are not inconsistent and he says that the passage in the Statement of Findings was concerned with a particular period of time, although the learned magistrate used the word "never". He submits that clearly the magistrate was concerned with the point of time when the vehicle was at the theatre. I think that that is a reasonable interpretation of the learned magistrate's comments. There was, in my view, clear evidence which it was open to the learned magistrate to accept. It was, as I say, corroborated to some extent by the sergeant, who says he saw the vehicle stop, and once the vehicle stopped then that suggests that the story of the police is probably true. 5. The learned magistrate saw the witnesses and he was satisfied beyond all reasonable doubt that the story of the prosecution witnesses was true. It is quite impossible for me to say that that conclusion was wrong and the appeal against conviction must be dismissed. 6. The appeal against sentence does cause me more anxiety. I do not think any real objection is taken to the fine which was imposed and the main contention is that a disqualification of five years was not justified. It has been emphasised that the Appellant is a professional driver but that of course means that he ought to be more careful than other drivers. It was suggested that there was no reckless indifference to human life. I think the learned magistrate was perfectly justified in his comment that this was a highly dangerous piece of driving and that innumerable other people were exposed to very great danger. The police witness who was in the car said that the Appellant was driving "like a blind man or a madman" and objection is taken to that phrase. I think that it may possibly be somewhat exaggerated but it is probably just what it felt like to the constable who was in the car. My chief anxiety results from my belief that five years' disqualification is considerably longer than that which has been imposed in any comparable case. I know of no case other than cases where death has resulted where anything like this period of disqualification has been imposed in Hong Kong. That is not to say that in my view no long period of disqualification can be justified where death has not resulted, but I do think that the actions of the Appellant in this case were possibly due, as the learned magistrate was inclined to think, to a loss of temper. Of course, drivers should not lose their temper and thereby endanger other people. I think the learned magistrate was justified when he said that a long period of disqualification ought to be imposed. He had already imposed twelve months' disqualification in respect of one of the other offences, to which the Appellant pleaded guilty, and therefore it had to be something in excess of twelve months to be effective at all. Nevertheless, after much hesitation I have come to the conclusion that this is a case where I am justified in interfering with the exercise of the learned magistrate's discretion and I reduce the disqualification to one of three years. 7. I would like to add that, having taken this course, I hope I shall not be taken to be suggesting that I think that the power of disqualification should not be used to the full. I think that it is a most effective and desirable form of punishment. 14th September, 1972. Representation: |