Ng Hin-leung v. The Queen
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CACC000682/1979 IN THE SUPREME COURT OF HONG KONG (Appellate Jurisdiction) CRIMINAL APPEAL NO. 682 OF 1979 -----------------
----------------- Coram: Baber, J. Date of Judgment: 12 September 1979 ----------------- JUDGMENT ----------------- 1. The appellant was convicted of carelessly driving a public light bus number AS1666 at 8.15 p.m. on 18th December of last year in King's Road, Hong Kong. He was fined $300 and disqualified from driving for 3 months on 3rd July of this year. He appeals against conviction and sentence. 2. The case is concerned with a slight collision which occurred between the appellant's public light bus and an omnibus of the China Motor Bus Co. Ltd. number BH8907 driven by Mr. Wan Chi-hung (P1) near house No. 1063A in King's Road. Both vehicles were moving in an easterly direction, the appellant's vehicle on the right hand side of the omnibus which was in the left hand of the 3 lanes of the carriageway, and somehow the left hand side of the public light bus struck the offside mirror of the omnibus, smashing it; Mr. Wan applied the brakes of the omnibus sharply and struck his chest against the steering wheel. Fortunately he was not injured to any extent. 3. The appellant was unrepresented at the trial. It is agreed that the sketch (Ex 1) shows the position of the two vehicles when they came to rest after the collision. The bus is on the left hand side of the carriageway, the public light bus slightly ahead of it in the middle of the 3 lanes of the east-bound carriageway. Both vehicles are pointing straight ahead. 4. Mr. Wan's version of the matter was that he was proceeding steadily along the road when the appellant overtook him on his right and swerved to the left in front of him hitting the mirror; the appellant then swerved back to the centre lane and came to a halt. 5. The appellant's version was that he was proceeding along the centre lane when the omnibus which had previously halted at a bus stop swerved into that lane without warning. He heard a sound, stopped and found that a collision had occurred. 6. Mr. Wan said that he had asked the appellant for compensation which the appellant refused. The appellant said that Mr. Wan offered him $20 compensation, which seems somewhat unlikely to me in all the circumstances, both as to the offer having been made at all the and unlikely as to the amount. 7. In his statement of findings the magistrate stated that it was clear from the sketch of the scene that there was no bus stop in the vicinity. In this he was apparently mistaken as there are Chinese characters indicating a bus stop - on the extreme right centre of the plan to the west of the road which both vehicles had just passed before they came to a halt after the collision. It was argued for the appellant that the existence of this bus stop made the version of the events given by the appellant more likely to be the true one. In my view, however, the magistrate must have come to the conclusion that he did even if he had been aware of the existence of the bus stop. His argument as to the position in which the two vehicles - the one notoriously much more maneuverable than the other - seems to be compelling. The appeal against con-viction is dismissed. 8. I turn to the appeal against sentence. In his record of the proceedings the magistrate noted that in addition to an earlier conviction for careless driving on 13th November 1973 upon which occasion the appellant was fined $200, the appellant had on 12 occasions since May 1977 and prior to the present proceedings paid $50 under the fixed penalty system. On 11 of these occasions the allegation against him was one of not stopping his public light bus close to the near side of the road when discharging or embarking passengers, and on the other occasion the allegation was one of parking or waiting within 50 feet of a bus stop. The magistrate referred to these compounded allegations as "convictions". When he wrote his statement of findings relating to sentence on 12th July 1979 (the appeal was originally against sentence only) he made no mention of these compounded allegations. It is argued for the appellant that he must have taken them into account in assessing sentence and should not have done so in view of the judgment of Leonard, J. in Sin Yui-kong v. Reg. Criminal Appeal 416/79 in which a considered judgment was delivered on 25th May of this year. 9. I am bound to say that I have doubts as to the correctness of that decision though Mr. Reid, Crown Counsel, was disposed to accept it. Compounded allegations under the fixed penalty system may not be convictions but they speak to a defendant's character, background and outlook, matters to which a judge is entitled to refer in passing sentence. They are not matters of controversy, especially such as are involved her. I am not, however, called upon to decide the matter nor whether in fact the magistrate initially took them into account because in my view on the facts of this case a disqualification was abundantly disqualified, irrespective of the compounded allegations. As Mr. Reid said the established antics of the appellant constituted quite a dangerous activity. I think, however, that the length of disqualification was excessive and I allow the appeal to the extent of reducing the period of disqualification to one of 2 months.
Representation: Mr. S.P. Llewellyn (Hampton, Winter & Glynn) for the appellant Mr. C.W. Reid, C.C., for the respondent |