Chan Kwai Lai v. The Queen

CACC000703/1967

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO.703 OF 1967

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Coram: W.A. Blair-Kerr

Date of Judgment: 29 January 1968

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JUDGMENT

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1. At 2.30 p.m. on 4th September 1967 the appellant was driving a private car in Leighton Road when it collided with an old woman who was walking across the road on a stud crossing. She died as a result of the injuries caused by the impact.

2. On 10th November the police laid an information with the magistrate charging the appellant with careless driving contrary to s.14(1) of the Road Traffic Ordinance, Cap.220. The magistrate issued his summons, and the case came on for hearing on the 24th November when the appellant, who appeared in person, pleaded guilty to the charge. No evidence was called; but the magistrate was handed a plan and a number of photographs of the area; and a statement of facts prepared by the police was read to the court. The appellant was then asked if he admitted the facts alleged in this statement; and, in answer to this question, he said "Yes".

3. The appellant had been previously convicted of dangerous driving in April 1951. On that occasion he was fined $25. In November 1952 and in December 1958 he was convicted of speeding, the fines being $20 and $15 respectively. His record also showed that he had a more recent conviction for failing to halt at a "major road ahead" sign. The appellant admitted his previous convictions. When he was asked if he had anything to say before sentence was passed, he asked for leniency. The magistrate then sentenced him to a fine of $1,000 and three months' imprisonment; and he was disqualified from holding a driving licence for five years.

4. From the photos and the statement it appears that there was a speed limit of 30 miles per hour in the area; that Leighton Road between the Roxy roundabout and Yan Ping Road is straight; that it is a one-way street carrying three lanes of traffic from north to south; that there are railings guarding the pavements on each side to prevent pedestrians from walking off the pavements; and that the stud crossing where the collision occurred is the only suitable place in the area for pedestrians to walk across Leighton Road. The statement of facts continues thus:-

5. After he was sentenced the appellant engaged a solicitor; and on 2nd December, the magistrate granted an application by the appellant for a review of sentence. In this proceeding, the proprietor of the oriental Motor Co. testified as to the appellant's good character; and he said that the appellant had been in his employment for over 20 years as a motor repairer and salesman. The police informed the magistrate that the car which the appellant had driven on 4th September, namely, a Datsun, had disc brakes on the front wheels.

6. The magistrate, having considered submissions made on the appellant's behalf, refused to vary the sentence which he had imposed on 24th November.

7. The appellant has now engaged counsel; and he appeals to this court on the ground that the sentence is too severe.

8. In his grounds for decision, the magistrate said:-

"In my view this was certainly one of the worst, possibly the worst, case of bad driving ever to have come before me. Indeed, upon the admitted facts, I was surprised that the appellant had not been prosecuted for causing death by dangerous driving. Not only was it established that the appellant had driven his car at a speed of 55 m.p.h. on a restricted 30 m.p.h. road, but that he had driven at that speed on that road approaching a pedestrian crossing. In the case of Chiang Shu-cheong and the Queen⁽¹⁾ Sir Michael Hogan, C.J., observed that common sense indicated that pedestrians were likely to cross roads on studded crossings and that consequently drivers should exercise particular care on approaching them so that they would not through excessive speed or other misuse of the vehicle which they controlled endanger the lives or physical safety of others. This the appellant had manifestly failed to do. In passing sentence I disregarded the appellant's previous convictions having regard to the time which had elapsed between their dates and 4th September last. I was, however, firmly of the opinion that if ever there was a case which called for a sentence of imprisonment and an order for disqualification for a substantial period in the public interest, this was such a case."

9. Counsel attacked the magistrate's statement that it had been established that the appellant had driven at a speed of 55 m.p.h. Counsel's submission was that there was no direct evidence from the appellant, or from any other person, that he was driving at 55 m.p.h.; that there was no evidence as to the conditions under which the police test was conducted; that even assuming that the test was conducted under conditions similar to those obtaining on 4th September, it was unreasonable for the magistrate to have deduced that the appellant was travelling at 55 m.p.h. from the mere fact that another person driving the same car at 55 m.p.h. at the same place had produced a tyre mark of 60 feet in the process of stopping the car by hard braking; and that there was no evidence as to the length of tyre mark which the appellant's car would produce when its initial speed before braking was 30 m.p.h. Counsel also drew the court's attention to the following statement which appears on the back of a pamphlet which incorporates the Highway Code. It does not appear to be part of the Code itself, not having been prepared under the authority of s.7 of the Road Traffic Ordinance. The statement reads:-

"A good driver -- a vehicle in perfect condition -- good weather -- broad daylight -- good dry roads -- under these conditions a vehicle cannot stop in distances less than those shown below:-

10. I do not think there is anything in the submission that the magistrate was not informed whether the police test was conducted under conditions similar to those obtaining at the time of the incident. The magistrate was being given facts to enable him to assess a proper sentence; and in the absence of any suggestion to the contrary he was quite justified in assuming that a test, which had obviously been designed to obtain data from which he might infer at what speed the appellant was travelling, was conducted fairly. If conditions on the day of the test were not similar to those obtaining on the 4th September, the test was useless and the court was being deliberately misled. The magistrate had no reason to think that the police had, say, conducted the test on a slippery road, or that prior to carrying out the test they had changed the tyres of the car. If it comes to that, there was no evidence that the P.W.D. had not put on a different type of road surface in the interval between the time of the incident and the time of the test.

11. I agree with counsel's submission that there was no "evidence" that the appellant was driving at 55 m.p.h. in the sense that no sworn evidence of any kind was called. The appellant had pleaded guilty to the charge; and his guilt was not in issue. Of course, there was nothing to prevent the prosecution from calling evidence for the purpose of assisting the court in the matter of sentence; but this question would only have arisen if the appellant had challenged any of the facts placed before the court.

12. There was no evidence as to what disc brakes are; but I have always understood (indeed I would say it is almost a matter of common knowledge) that when the brakes of a motorcar are applied, the brake shoes expand against the rotating brake drums, and the friction between the shoes and the drums slows down the motorcar. If the brakes are applied very hard, the brake shoes may press so hard against the drums that the wheels are "locked", and the wheel ceases to turn although the motorcar still moves forward. From that moment, the slowing down process is achieved as a result of friction between the tyre and the road surface. The road is harder than the tyre. Part of the tyre is rubbed off on the road. Hence the black marks known as skid marks or tyre marks.

13. It frequently happens in trials involving motoring offences that the prosecution call a police officer to say that he has tested the vehicle at the place where the collision occurred under the same conditions, and that, when travelling at a certain speed, he braked hard thereby locking the wheels of the car, and that, in the process of bringing the car to a halt, he made a tyre mark of a certain length on the road. Such evidence is tendered with a view to inducing the court to believe that the appellant, driving the same car under similar conditions, must have been driving at the same speed because the tyre mark made by him was the same length. It is relevant evidence. If true, it is cogent evidence. The statement on the back of the pamphlet incorporating the Highway Code has no statutory authority, and it is not evidence. But, in any event, these figures are minimum general figures. The figure given by a police officer as a result of an actual test carried out by him relates to the vehicle in question, and to that particular section of road where the incident occurred. The condition of the tyres on the particular vehicle involved at the time of the incident, the type of brakes with which it is fitted, and the road surface at the spot where the incident occurred, are highly relevant factors.

14. The appellant not only did not challenge any of the facts read out; but he had virtually nothing to say when he was asked to plead in mitigation. It is not as if he were a young inexperienced person. He has been in the motor industry in Hong Kong for twenty years. He has been before the courts on a number of occasions. He must have appreciated the significance of an allegation by the prosecution that the tyre mark made by him in the process of stopping measured 60 feet and that, in a subsequent test, a police officer, driving the appellant's car in the area where the collision occurred, had produced a tyre mark of 60 feet in the process of stopping it from an initial speed of 55 m.p.h. It should have been obvious to any one that the prosecution were inviting the court to draw the inference that at the time of the incident the appellant was driving at about 55 m.p.h.

15. I find it equally significant that neither at the review nor on this appeal did the appellant suggest that his car might be re-tested by the police at the spot where the incident occurred in the presence of the appellant himself or some independent observer. Before this court the appellant, through his counsel, challenged the bona fides of the officer who conducted the test, or at least the accuracy of the test; and he was certainly challenging the evidential value of the results of the test. If the appellant really believed that his car would produce a tyre mark of 120 feet when being braked to a halt from an initial speed of 50 m.p.h. and that it would produce a tyre mark of 60 feet when being braked to a halt from an initial speed of 35 m.p.h., it would have been a very simple matter to challenge the prosecution to conduct a further test, or, better still, a series of tests, with the appellant or an independent observer either sitting in the car or present at the scene. The appellant may not have been travelling as fast as 55 m.p.h.; but, in the absence of some evidence to the contrary, I do not think it was unreasonable for the magistrate to assume, for purposes of sentence, that the appellant's speed was somewhere in that region. I would probably have made the same assumption if I had been in the magistrate's position. There was no sworn evidence or the point; and there is still no sworn evidence before me. But, where there has been a plea of guilty, and an accused person says nothing which might be said to amount to a challenge of any important fact submitted to the court, the court is justified in making certain assumptions for purposes of sentence.

16. There seems to have been a difference of opinion as to what charge should have been preferred by the prosecution in the first instance. I asked Crown Counsel appearing on the appeal what his views were. He said that, as he saw the case on the prosecution file, he would have advised that the appellant be charged with causing death by dangerous driving; but he said that the Crown Counsel who had in fact advised the police took the view that careless driving was the proper charge. Clearly, the magistrate took the view that the proper charge should have been causing death by dangerous driving; but he may also have taken the view that, having accepted the appellant's plea of guilty and having convicted him upon that plea, it was not open to him at that stage to convict the appellant of dangerous driving in respect of the same facts. Clearly, he was not in a position to form any view until he had heard the appellant agree that the statement of facts given to the court by the prosecution was correct; and that was at a stage in the proceedings when, it would appear, he had already accepted the appellant's plea of guilty to the careless driving charge.

17. When the case came before the magistrate on review, the appellant's solicitor expressed surprise at the fact that the prosecution had not thought fit to charge the appellant with dangerous driving; and he submitted that the magistrate could have "amended" the charge so as to have charged the appellant with dangerous driving. This would have amounted to more than amendment. It would have amounted to preferring an additional, and more serious, charge. Presumably the solicitor had in mind the provisions of s.27 of the Magistrates Ordinance; and it has been held in a number of cases⁽²⁾ that this section enables a magistrate to prefer a new charge during the course of a trial. The procedure to be followed in such a case was laid down by this court in Hughes & Jeavons v. the Crown.⁽²⁾ But when the case came before the magistrate on review, the application was in respect of sentence. As there had been a plea of guilty, sentence was the only matter which the magistrate had "determined in a summary way". The solicitor did not suggest that at that stage the magistrate had power to re-open the whole case, frame a new charge, and retake the appellant's plea on the new charge. What the position would have been if the magistrate had done so on his own initiative, having regard to the law pertaining to autrefois convict, was not explored on this appeal.

18. However, it may be that the matter is now of academic interest because the approach of counsel on the appeal was quite different from that of the appellant's solicitor on the review. On the appeal counsel would not agree that the prosecution should have preferred a more serious charge against the appellant. He submitted firstly that the prosecution had an unfettered discretion as to what charge should be preferred and secondly that the correct charge had been preferred in this case. For the first of these two propositions he referred to R. v. Nuneaton Justices, ex parte Parker⁽³⁾. In that case the police laid an information for careless driving; and the justices refused to issue their summons and gave as their reason that they had a "settled practice." that the charge in the first instance should be a dangerous driving charge. In issuing an order of mandamus to them, the Divisional Court held that the justices had no power to refuse to issue a summons for careless driving. Lynskey J. put the matter thus:-

"It must not be thought that it is laid down in every case where death occurs the charge should be manslaughter or in every case where there is some complaint as to driving the charge should be dangerous driving; it is a matter for the prosecution. On the other hand, the offence of dangerous driving or reckless driving is a very serious one, and the police ought always, in my view, where the facts support it, to bring the more serious charge."

I respectfully agree. However, in this case, the magistrate had accepted the appellant's plea of guilty to the careless driving charge; and I am by no means persuaded that he had power at that stage to convict the appellant on a more serious charge relating to exactly the same facts. Section 27 of Cap.227 enjoins the magistrate to

"... give judgment upon the substantial merits and facts of the case as proved before him, and convict the defendant of the offence with which he was charged with such variation as has been warranted by the evidence or of any offence which under the provisions of paragraph (c) of sub-section (2) of section 10 could have been tried therewith."

But there was no "trial" in this case. However, even assuming that the magistrate did have power to prefer a more serious charge, the course which he adopted is not open to criticism. He had a valid charge before him. It was one which was supported to the hilt by the facts disclosed to him. It was obviously a very serious case of careless driving. The fact that he thought that it also amounted to dangerous driving does not mean that he ought to have taken steps to charge the appellant with that offence. He accepted the appellant's plea of guilty and sentenced him. I cannot see any irregularity in the course which he adopted.

19. In dealing with the proceedings on the review, the magistrate said:-

"He "(i.e. the appellant's solicitor)"suggested that the appellant had pleaded guilty to careless driving because he believed careless driving to be less serious than dangerous driving."

I must also assume that the appellant pleaded guilty to careless driving because he acknowledged that he was guilty of driving carelessly. No doubt careless driving is a less serious offence than dangerous driving. But is that any reason why he should have thought he was entitled to be sentenced to a nominal fine? The appellant may have had good grounds for believing that he would get away with a small fine, especially as he had been fined $25 on a previous occasion for dangerous driving. But that is not a ground of appeal in this case. The legislature has prescribed a fine of $1,000 and three months' imprisonment as the maximum sentence for the offence of careless driving. If the appellant's view is that the courts ought to ignore this upper limit for the reason that no case of careless driving could merit a sentence of imprisonment, then I must say that this is a view which I do not share. Courts of law have no right to ignore what the legislature says when it creates a statutory offence. It is not for the courts to say: "Never mind, this is what we think the defendant's conduct merits." It is the duty of the courts to accept whatever maximum punishment the legislature has prescribed and to administer the law faithfully on that basis.

20. The next point urged on the appellant's behalf was that the magistrate must have taken the fact of death into consideration in assessing sentence; and that, if he did so, he was wrong because the fact that a person died as a result of the appellants's careless driving was irrelevant, that is to say that the fact of death was not only not an element in the offence of careless driving but that it was irrelevant in the matter of sentence.

21. I agree with the former of these two propositions. The fact that the appellant killed some one is not an element in the offence of careless driving; but I am by no means persuaded as to the correctness of counsel's second proposition. It is always a difficult question to know what is, and what is not, relevant for purposes of sentence. It might be argued that the fact that the appellant killed someone as a result of his careless driving has as much relevance as the fact that the appellant is honest and is of good character and that, (according to his employer who gave evidence on the review) he is a good timekeeper. If the magistrate had said that he was punishing the appellant for having killed someone, that would clearly have been wrong. But to say that the fact of death is irrelevant in the sense that the magistrate should never have been told about it, is equally wrong. What the fact of death does is to throw into proper perspective the reason behind the enactment of the various provisions relating to careless, dangerous and drunken driving, speeding, failing to give preference to pedestrians on road crossings, failing to obey various lawful orders in regard to stopping when approaching major roads and so on. These provisions have one object: to reduce the risk of death and injury on our roads. Yet, how often do we all forget the immensity of the potential danger to persons and property which is created by careless driving. The truth of the matter is that "if nothing happens", that is to say ifnoone gets killed or injured, we tend to dismiss the matter with a shrug of the shoulders and say: "The defendant was lucky." If these words mean no more than that the defendant should count himself fortunate that he did not kill any one and so find himself before the court on a more serious charge, then it is simply stating a truism. But, judging by the sentences passed by certain courts in respect of this offence, I am unable to escape the conclusion that these courts sometimes fail to take cognizance of the great potential danger to life which a careless motorist creates. It is the creation of this potential danger which is prohibited by s.14 of the Road Traffic Ordinance; and in very bad cases, the maximum penalty may appropriately be imposed.

22. In R. v. Kan Chik Tung,⁽⁴⁾ the Full Court said:-

"It has been stated over and over again that it is not the function of an appellate court to prune sentences. Indeed, unless the sentence passed by the court of trial is either wrong in principle or is quite clearly excessive, this court will not interfere."

The Full Court were considering an appeal against a sentence passed by a single judge upon the appellant's conviction by a jury; but I see no reason why a single judge should adopt a different principle when dealing with an appeal from the decision of a magistrate.

23. I am unable to agree that the magistrate in this case erred in principle in passing a sentence of imprisonment as well as a fine. It was a very bad case of careless driving.

24. The order of disqualification was made pursuant to s.23 of the Road Traffic Ordinance. Subsections (1) and (10) of the section, so far as applicable, read:-

25. In making the disqualification order the magistrate appears to have disregarded entirely the appellant's driving record on the ground that a long period had elapsed between his previous convictions and the offence with which he has now been convicted. It is quite true that he has no recent convictions other than one for failing to stop at a "major road ahead" sign; but, if one looks at his driving record as a whole, I do not think that it should be disregarded entirely when deciding whether an order of disqualification should now be made, and for what period such an order should remain in force. Proviso (b) to s.23(1) of the Road Traffic Ordinance would have operated so as to preclude the court from disqualifying the appellant in 1958 in respect of his second conviction for speeding if his only previous conviction had been his first conviction for speeding in 1952. But that does not mean that in 1967 the magistrate was precluded from looking at the appellant's record as a whole (starting with his conviction for dangerous driving in 1951) and noting that this is the appellant's fifth conviction in connection with his driving of a motor vehicle.

26. It also appears that a court is fully entitled to consider all the circumstances of the case, including the fact (if it be a fact) that the person convicted has caused the death of a person quite irrespective of whether the charge before the court is manslaughter, dangerous driving, careless driving, or drunken driving.

The main purpose of the application for review appears to have been to bring to the magistrate's notice that the appellant was employed in the motor industry as a salesman and that he was required to drive motor cars in the course of his employment. That, of course, is a mitigating factor. Obviously, a disqualification order operates more harshly on a person who uses a motor car for purposes connected with his work than on a person who uses a car merely for pleasure. But it is not without significance that the courts have refused to regard considerations of hardship, and the fact that a driving licence is essential to the conduct of the accused's business on which he is dependent for his livelihood, as "special reasons" for the purpose of relaxing the minimum period of 12 months disqualification which the law prescribes for certain other driving offences. As the Lord Justice General said in Adair v. Munn⁽⁵⁾(p.75):-

"..... it is obvious that the main object of the disqualification is the safety of the public on the roads";

and, at p.78 Lord Moncrieff said:-

"Once a special reason has been properly found, however, a statutory discretion is conferred upon the court, in the exercise of which any particular judge is likely to be influenced in varying degrees by considerations of hardship or by the personal claims of the applicant. I do not say that it would be wrong in such degree as to be open to review if, in the exercise of this discretion, having been already satisfied upon sufficient evidence that he had made provision for the safety of the public, a judge would prove less reluctant to restore a breadwinner than a mere pleasure seeker to the roads, although with equal prospects of reform. It is however only within this entirely limited area that the personal interests of the applicant for indulgence can be given any supplementary consideration."

It is a limited area. By far the most important consideration is the protection of the public; and having regard to the appellant's record and the whole of the circumstances connected with his present conviction, the argument that the magistrate erred in principle in making a disqualification order is quite untenable; and as regards the period of disqualification, I am not persuaded that five years is excessive. The appellant's record shows that on every occasion he has been before the courts it has been in respect of an act which has created potential risk to other road users culminating in his causing the death of a person by his careless driving in September 1967.

27. For the above reasons the appeal against sentence and the order of disqualification is dismissed.

28. Arising out of this appeal there is one matter which seems to call for consideration. The offence was committed on 4th September 1967. The appellant appeared before the magistrate on 24th November. If the police decide to arrest a person and put him on the charge sheet, the case is usually diposed of by the magistrate a few days after the commission of the offence. This case was dealt with by way of laying an information and the issuance of a summons, and this process is bound to take longer; but it seems to me that something could be done to speed up the machinery for bringing to trial persons charged with serious motoring offences such as dangerous and careless driving. I can well imagine how there would be delay if such cases are dealt with together with hundreds of other informations for petty offences such as illegal parking, obstruction etc. But surely, at the police end, it would be a simple matter to have two lists of offences. They might be described generally as 'serious' and 'minor' for departmental purposes; and, as each 'serious' motoring offence comes in, it should be dealt with at once, just as in cases where the defendant is on the charge sheet. In other words, the information should be laid before the magistrate at once so that he may issue his summons and have the defendant before the court in a matter of two or three weeks.

29th January, 1968.

Representation:

Zimmern (Deacons) for the Appellant,

MacDougall, Crown Counsel, for the Respondent.

(1) (1962) H.K.L.R. 595

(2) Hughes and Jeavons v. the Crown (1949) 33 H.K.L.R. 318; R. v. Yip Yuk Lum (1961) H.K.L.R. at p.278.

(2) (1949) 33 H.K.L.R. 318

(3) (1954) 3 A.E.R. 251

(4) (1963) H.K.L.R. p.721 at p.732

(5) Adair v. Munn (1940) S.C.J. p.69