HKSAR v. Ma Kwong Tak

CACC 217/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 217 OF 2014

(ON APPEAL FROM DCCC NO. 248 OF 2014)

________________________

BETWEEN

________________________

__________________________________

DECISION

__________________________________

1.The Applicant has applied for bail pending appeal. On 16 June 2014, he pleaded guilty before District Judge CP Pang to a charge of careless driving. He was sentenced on 23 June 2014 to a term of imprisonment of 3 months. He has applied for leave to appeal against sentence.

Principles governing bail pending appeal

2.The court has an unfettered discretion in deciding whether to grant bail pending appeal.  It is usually only granted where it appears prima facie that the appeal is likely to be successful.  It may also be granted if there is a risk that the sentence will have been served by the time the appeal is heard (see R v Watton (1979) 68 Cr App R 293 and R v Lee Hoi-Kwong [1993] HKLY 216).

Case

3.The Applicant was driving a goods vehicle at about 4:50 pm on 5 September 2013 in Sai Kung when his vehicle struck a 78-year old man who was crossing the road at a pedestrian crossing.  The speed limit along that stretch of road was 50 kph and the Applicant’s vehicle was travelling at the speed of about 40 kph. The pedestrian was crossing the road from the vehicle’s right to its left.  According to an eye-witness, the pedestrian had been walking slowly with the use of a walker and had nearly reached the pavement on the other side when he was struck by the vehicle, which did not decelerate until just before impact.

4.The Applicant was originally charged with dangerous driving causing death but at the commencement of trial the prosecution amended the charge to careless driving, to which the Applicant pleaded guilty.

5.In mitigation it was said that he had had a driving licence for 30 years and had been a professional driver for the last 10 years.  He had no previous convictions relating to driving. 

6.The judge acknowledged that imprisonment was rare in careless driving cases, but he considered that the present case involved gross negligence and the pedestrian was not to blame at all for the accident.  The judge considered that the Applicant would have been able to see the pedestrian from a distance of at least 21m and that a reasonably careful driver should have been able to react in time to avoid the accident, but the Applicant failed to do so until just before impact.  The Applicant said to police at first that he thought the pedestrian had come out from the vehicle’s left, which indicated that he had not noticed the pedestrian.  The judge therefore considered that this was not a case of a momentary lapse of attention. 

7.The Applicant’s counsel has impressed upon me the fact that at 40 kph, the Applicant would only have had less than 2 seconds to see the pedestrian who was 21m away.  The judge was therefore in error when he held that it was not a momentary lapse of attention case, which normally would not warrant a custodial sentence.

8.I am satisfied that there are reasonable prospects of success.  An additional factor is the short term of sentence of 3 months.  The earliest date of release is 23 August 2014 and I am given to understand that the earliest date for the hearing of the appeal will be in December.  Mr Kuan for the Respondent does not oppose bail in the present circumstances.

Order

9.Accordingly I am prepared to grant bail pending appeal on condition of cash bail of $20,000 and a surety of the like amount. 

Mr Erik Shum, instructed by K.L. Chan & Co. for the Applicant

Mr Franco Kuan, SPP of Department of Justice, for the Respondent