Mak Kau v. The Queen

CACC001318/1977

Coram: Briggs, C.J.

Date of Judgment: 31st December, 1977.

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JUDGMENT

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1. The appellant was found guilty of dangerous driving causing death and sentenced to three months' imprisonment and to be disqualified from holding a driving licence for a period of three years. The appeal is against sentence only.

2. The facts were that at about 11 p.m. on the 9th March, 1977 the appellant, who is a public light bus driver, knocked down and killed a man on a zebra-crossing in Castle Peak Road. The victim was a man of 67 years of age and was accompanied by two relatives. It appeared from the evidence that the road where the accident occurred was one half of a double carriageway which is separated into two halves by a metal fence, a passageway being allowed so that pedestrians can cross by the zebra-crossing. The road is wide and quite straight and is designed to take three lanes of traffic. A policeman who arrived at the scene of the accident shortly after it occurred gave evidence that the street was well lit and there was a blinking light at the zebra-crossing, which had the usual zig-zag lines at each end of the striped portion.

3. Mr. Huggins, who appeared for the appellant, suggested that this offence can be divided into two separate categories. One, where the accident is caused by an error of judgment or foolishness and, two, where the accident is caused by the deliberate taking of a risk or driving in an irresponsible manner. He suggests that only for an offence coming within the second category should a custodial sentence be imposed.

4. This, in my view, is a useful way of looking at this offence when a magistrate is considering what sentence to impose. In the present case, the evidence is indecisive whether the very experienced driver, the appellant, deliberately took a risk and drove much too fast straight across a zebra-crossing knocking the victim down or whether it was merely an error of judgment albeit a grave error of judgment.

5. In the event, I think that this is a case which falls within the first category mentioned above and not in the second category. There is insufficient evidence for it to come within that second category and so I allowed the appeal.

6. In his Statement of Findings the magistrate seems to say that he imposed a custodial sentence as a deterrent. He refers to the bad standard of driving in Kowloon and in the New Territories, particularly the bad standard of driving amongst professional drivers, and especially public light bus drivers. With respect, I do not think that is a proper way to approach the imposition of a sentence for this offence and, in this particular case, there was evidence before the magistrate that the appellant has been driving public light buses for ten years and has a clear record except for certain offences of failing to pick up or put down passengers at the correct stopping places. He has no previous convictions for other traffic offences, not even for speeding.

7. I therefore allowed the appeal to the extent that the sentence of three months' imprisonment is set aside and a fine of $800 substituted therefor. The period of three years disqualification will stand.

Representation:

A. Huggins (Yeung & Cheuk) for appellant

Mrs. Jewkes for crown