Fong Chi Yuen v. The Queen
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CACC000603/1980 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 603 OF 1980 -----------------
----------------- Coram: Garcia, J. in Court Date of Judgment: 15th August 1980 ----------------- JUDGMENT ----------------- 1. The appellant was on the 19th day of June 1980 convicted of dangerous driving contrary to Section 11(1) and (2) of the Road Traffic Ordinance, and he was fined $500 and disqualified from driving all classes of vehicles for a period of 12 months. The events which led to the charge against the appellant are that at about 10.40 a.m. on the 14th of May 1980, Senior Inspector Eaton of the Traffic Branch, New Territories, whilst riding a motor-cycle along Castle Peak Road from Tuen Mun in the direction of Tsuen Wan, saw two public light buses ahead of him, and noticed that the second of the public light buses, that is the one which was nearest to him and which was driven by the appellant, swerve and overtake the first public light bus but had to move back because a private car was coming from the opposite direction. 2. The appellant in his evidence stated that he was given a signal by the first public light bus to go ahead, but this was not accepted by the Learned Magistrate. After moving back to its own carriageway, the public light bus which the appellant was driving started to overtake again, and it then cut across a single solid white line, following which it crossed double white lines, went around a blind bend, and uphill on the wrong side of the road for about 70 yards. The Inspector said that if anything had come from the opposite direction there was no way in which a serious accident could have been avoided. As far as the appeal against conviction is concerned I see no grounds upon which I should or could come to any other decision than has been arrived at by the Learned Magistrate. He accepted the evidence of Senior Inspector Eaton as he had every right to, and the manner in which the appellant was driving his public light bus not only put other road users at risk but his own load of 8 passengers in particular. His appeal against conviction is therefore dismissed. The appellant has also appealed against his sentence of a fine of $500 and disqualification for a period of 12 months. When he was before the Learned Magistrate the only factors which he had submitted in mitigation were that he was aged 63, and he was a part-time public light bus driver. He never gave the Learned Magistrate further particulars about himself nor the fact that this part-time occupation was his only means of livelihood, nor for that matter that he had a family of three young children. It has been urged on his behalf this morning that he is a driver of some 30 years experience and that since that time he has had only one conviction for careless driving in 1977. In the case referred to by Mr Egan, i.e. Man Kam-pui v. R.(1) the appellant was disqualified from driving for a period of 6 months for careless driving. In that case the driver of a goods vehicle pleaded guilty to careless driving and was fined $400 and disqualified for 12 months. The careless driving involved the driver driving too fast round a hair-pin bend and well over the double-white line as a result of which he collided with an oncoming vehicle the driver of which had enough time to stop to avoid a more serious collision. On appeal his disqualification was reduced to one of 6 months. One very important distinction between that case and the one here is that the goods vehicle which the driver in that case was driving at the time collided with an oncoming vehicle as a result of the manner in which the vehicle was driven. In addition, another distinction is that the goods vehicle was also driven at a very high speed. Probably those were the reasons why the driver was disqualified from driving for a period of 6 months. There was no accident in the present case. The facts in mitigation were not, in my view, put fully to the Learned Magistrate, and taking into account the normal period of disqualification for offences of this kind is 6 months, I would allow the appeal against sentence to the extent that the disqualification of 12 months is reduced to one of 6 months, but the fine is affirmed.
Representation: J. N. Midgley of Haldane & Co. for appellant K. Egan, Crown Counsel, for respondent (1) Crim. App. 966/1976 |