Wong Chi Chiu v. The Queen

CACC000932/1981

BETWEEN

________

Coram: Penlington J. in Court

Date: 6 January 1982

______________

J U D G M E N T

______________

1. This is an appeal against conviction and sentence on a charge of careless driving contrary to section 14(1) of the Road Traffic Ordinance.

2. The charge arose following an accident in which the Appellant, who is a taxi-driver, struck a 14-year old school girl who was crossing at a zebra pedestrian crossing. The defence was that the girl dashed across and the Appellant had no opportunity to avoid her.

3. The Magistrate considered the evidence given by the girl herself and by a Police Constable who produced a plan and he also considered the evidence given by the Appellant. Having heard that evidence he was satisfied that while the girl may well have been hurrying, or even running, he was satisfied that the Appellant had not taken sufficient care in the prevailing circumstances. I see no reason to interfere with that clear finding of fact and the appeal against conviction is dismissed.

4. The Magistrate imposed a sentence of 6 months' imprisonment suspended for 12 months and ordered the Appellant to pay $500 costs.

5. It seems that there was some confusion as to the accused's record and the Magistrate understood the Appellant to be conceding that he had one previous conviction for careless driving. On that basis the maximum sentence would be one of 6 months' imprisonment. It seems that such was not the case and that the Appellant, while he has some previous convictions for other traffic offences such as disregarding lights and signs, has no previous conviction for careless driving. That being so the maximum sentence that the Magistrate could have imposed was one of 3 months' imprisonment.

6. Recently the Court of Appeal in Cheung Kin-man v. R.⁽¹⁾ said that it was not wrong in principle to impose a sentence of imprisonment for dangerous driving.  Here the charge was not one of dangerous driving but I think the principle is the same. The Legislature has empowered the Court to imprison for careless driving and clearly therefore there must be some cases where such a sentence is appropriate.   However the Court of Appeal went on to say that only in cases of gross negligence or deliberately dangerous driving should an immediate prison sentence be imposed. Here the Magistrate has imposed a suspended sentence. I think it is clear that a Court before imposing any sentence of imprisonment must first decide that the offence merits such a sentence and then, having considered all the circumstances, decide whether or not it should be suspended. The concept of a driver having a suspended sentence hanging over him and thereby exercising more care in his driving than he otherwise would have done is undoubtedly an attractive one. I did not however think that the facts of this case warrant a sentence of imprisonment. The suspended sentence of 3 months' imprisonment is therefore quashed and a fine of $750 substituted therefore. The order for payment of $500 costs is also quashed. I rather imagine that the Magistrate had made the order for payment of costs in order that the Appellant would have to pay some pecuniary penalty in addition to the suspended sentence of imprisonment.

7. I have also considered the question of whether, in addition to the fine, I should impose a period of disqualification. I have decided that on the circumstances of this case and because this is an appeal I should not do so but in my view the Magistrate would have been perfectly justified in imposing a period of disqualification.

(1)    (1981) C.A. 720

Representation:

Armand Souyave (Laurence Pang & Co.) for Appellant

T.H. Freeman, Counsel for the Crown/Respondent