HKSAR v. Yip Chi Lin

HCMA 278/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 278 OF 2012

(ON APPEAL FROM KCS 3204 OF 2012)

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BETWEEN

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REASONS FOR JUDGMENT

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1.The appellant was convicted after trial by a deputy special magistrate (“magistrate”) of a summons of careless driving. She was fined $4,000, disqualified from driving for 6 months and ordered to retake the driving test after the period of disqualification.

2.The appellant initially appeals against both the conviction and sentence but subsequently abandons the appeal against conviction and proceeds only with the appeal against sentence.

3.After hearing the parties the Court allows the appeal to the extent that the orders of disqualification from driving for 6 months and retaking of driving test (“the 2 orders”) are set aside but the fine of $4,000 is to stand.  The Court now gives the reasons.

Facts Found

4.According to the facts found by the magistrate in the trial, on 27 October 2011 at about 1030 hours, the prosecution witness was driving a private car along Castle Peak Road and was about to make a left turn into Tsap Fai Street.  He switched on the indicator light and slowed down to a near stop.  Shortly after he had begun to negotiate the turn he was hit at the rear by the private car driven by the appellant.

Application for Review

5.The appellant applied to the magistrate for a review of her conviction and sentence but her application was dismissed.  The appellant then launched this appeal.      

Grounds of Appeal

6.The grounds of appeal are as follows:

(a)   The magistrate wrongly failed to take into account that the previous convections of careless driving of the appellant took place in 2003 and 2006 and the fixed penalties were at the low end of the scale in terms of seriousness;

(b)   The magistrate wrongly held that the appellant was incompetent to drive and was required to retake the driving test when she was unable to tell the safe stopping distances when giving evidence in the witness box;

(c)   The sentence is manifestly excessive.

Discussion

7.The grounds of appeal of the appellant can be considered together.

8.The appellant is 45 years of age and is a housewife.  She has previous convictions of careless driving in 2003 and 2006, and between 2007 and 2009 she was issued fixed penalty regarding speeding by more than 15 kph but not more than 30 kph on 4 occasions.  Her last traffic contravention took place in January 2010 when she was dealt with by way of fixed penalty of $320 for unlawfully entering box junction.

9.She completed a driving improvement course in 2006 and 2009 of her accord and had had 3 driving-offence points deducted on each occasion.

10.It was said in mitigation that the 11 year-old son of the appellant had learning difficulties and was hyperactive and suffered from lumbar scoliosis.  Her mother had cataract, heart disease and high blood pressure.  The appellant had to drive the 2 of them to have medical treatment 2 to 3 times a week.

11.In imposing the fine of $4,000 and the 2 orders the magistrate said:

“36.  I was of the view that the remorse shown by the appellant was only skin-deep……and was in fact feeling no remorse…The appellant had 2 similar records in the past, and the 2 driving improvement courses failed to correct her driving attitude, thus there was a very high chance of re-offending, Therefore I was of the view that substantially deterrent sentence against the appellant was warranted. The appropriate sentence, in my view should include a fine and a disqualification period for 6 months.

37.   In addition, although the appellant had held a driving licence for 18 years, her testimony and submission clearly indicated a lack of knowledge of how to judge a safe distance.  Her evidence showed that this driving manner was not limited to that single occasion.  If the appellant were allowed to drive again immediately after a period of disqualification, chances are that she would simply fall back to the old track.  Considering the fact that after completing driving improvement courses, the appellant still had a number of fixed penalty records and committed the present case, I was of the view that driving improvement courses could not correct the manner of driving of the appellant.  The court should make sure that the driving attitude and skills of the appellant had reached a satisfying standard before allowing her to drive a vehicle again.  Therefore, I was of the view that re-taking the driving test was an appropriate sentencing option.”   

12.As pointed out by the appellant it was said in the case of Leung Kwan Tun v R CACC 36/1979 that “it is only in a serious case of careless driving that a period of disqualification is imposed”. In that case a taxi driver ran into a pedestrian who was crossing Argyle Street and was disqualified from driving a taxi for 3 months after pleading guilty to careless driving.  The order of disqualification was quashed on appeal.

13.The appellant cites a number of cases and the respondent one to illustrate the sentences of careless driving imposed by various courts.  Those cited by the former show that in cases which were more serious in nature than the present one no or shorter periods of disqualification were imposed.  In the one cited by the respondent the facts were more serious than the present one in that the driver crossed double white line and collided with another vehicle, causing substantial damages to the vehicles.

14.All these case are of limited use to the Court because the sentences imposed were specific to the facts of the case and are by no means sentencing guidelines.  It is indeed not practicable for any such guidelines to be laid down because the circumstances of careless driving can vary substantially from case to case, so do the sentences.  The court must therefore consider the facts of the case and the relevant circumstances to arrive at a just sentence.

15.In the case of Chan Kwai Lai v R [1968] HKLR 31 cited by the respondent it was held:

“2. The object of much road traffic legislation is to reduce the risk of death and injury on the road, and the most important consideration in making a disqualification order is the protection of the public. For these reasons a court is fully entitled to consider all the circumstances of the case, including the fact that the offence had caused the death of a person, the accused’s driving record as a whole, etc.”

16.In the whole of the Reasons for Sentence of the magistrate no reference at all was made to the facts of the case.  Obviously such facts must be a very important consideration in the process of sentencing.  The appellant was convicted of careless driving for failing to keep a safe stopping distance from the car in front and collided with it causing minor damages.  No doubt this must be at the very low end of the scale in term of seriousness and certainly did not necessitate the making of the 2 orders. 

17.The traffic record of the appellant is not a good one but is certainly not the worst type.  The 2 convictions of careless driving were dated back to 2003 and 2006 which were 8 and 5 years before the present case.  Any driving-offence points incurred for these 2 convictions would have been spent long before the present case.

18.All other traffic contraventions of the appellant were in form of fixed penalty which according to Sin Yiu Kwong v R [1979] HKLR 294 are not even regarded as traffic convictions.  Although the magistrate, as observed in the case of R v Ma Kin Man HCMA 180/1985, was still entitled to take them into consideration in sentencing, the record as a whole is not so bad as to substantiate imposing the 2 orders.

19.The magistrate was also of the view that as the 2 driving improvement courses had failed to correct the driving attitude of the appellant there was a high chance of the appellant re-offending, thus warranting disqualification from driving for 6 months.  He further came to the conclusion for the same reason that the appellant would simply fall back to the old track after the disqualification and he therefore made an order for the appellant to retake the driving test.

20.The magistrate overlooked the fact that apart from the fixed penalty contraventions the appellant had not committed any careless driving or other serious traffic offences until the present one after the 2 driving improvement courses.  As stated above the offence in the present case was careless driving of a relatively minor nature.  The 2 courses had in fact, contrary to the conclusion of the magistrate, improved the driving manner of the appellant.  In the view of the Court this does not constitute sufficient ground for the 2 orders to be imposed.

21.The magistrate pointed out specifically that the appellant did not have the basic knowledge safe stopping distance and that she was not a qualified driver.  It is not in dispute that the appellant was not able to tell the safe stopping distances in the witness box.  It is, however, not known on what basis the magistrate held that she was not a competent driver.  Even if a person cannot tell exactly the safe stopping distances of a vehicle at various speeds it does not follow that he does not know that he has to keep a distance from the car in front while driving, let aside saying that he is not competent to drive.  The Court wonders how many drivers can tell off hand such distances.  In any event the Court is of the view that ordering the appellant to retake the driving test on this ground cannot stand.     

22.The Court is of the view that all the above factors which the magistrate determined to be justifications in making the 2 orders, no matter taken individually or in combination, are not sufficient to substantiate the imposition of the 2 orders.  They are nevertheless grounds for a heavy fine to be imposed.  In this connection, the court is of the view that the fine of $4,000 in the present case is appropriate and correct in principle and is certainly not manifestly excessive.   

Conclusion

23.The appeal against sentence is allowed to the extent that the order of disqualifying the appellant from driving for 6 months and the order for her to retake the driving test are quashed, but the fine of $4,000 is to stand.

Ms Nolle A Chit PP of Department of Justice for the respondent

Mr Chan Pat Lun instructed by Messrs Hart Giles Solicitors for the Appellant