HKSAR v. IP SUM CHUEN

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 718 OF 1997

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J U D G M E N T

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1. The Appellant in this case initially appealed against a conviction for Reckless Driving causing Death for which he was sentenced to 4 months imprisonment, disqualified from driving for 18 months and ordered to pay $2,000 costs.

2. Today, at the hearing of the appeal, Appellant advised the court that he was abandoning the appeal against conviction and wished to pursue the appeal against sentence because he did not want to go to prison. I should point out that in dismissing the appeal against conviction, I was satisfied that the magistrate in arriving at his conclusions for conviction had carefully examined the evidence and had properly evaluated it. There was nothing unsafe or unsatisfactory about the conviction.

3. In respect of the sentence, the magistrate gave careful thought to that also. In particular, he took note of the English case of R.v. Boswell 1984 1 AER 353 as approved in A.G. v. Chung Yim Chow 1986 HKLR 109 when he examined the factors that should be taken into account in a sentencing of this nature.

4. The Appellant in this case was considered by the Magistrate to be guilty not of a one-off momentary reckless error of judgment or momentary inattention. He considered it a sustained recklessness involving speed, changing lanes, jumping a red light, passing too close to 30 odd pedestrians and and that there were two aggravating factors one of prior consumption of alcohol and the other an attempt by Appellant to pervert the course of justice by requesting a witness not to tell the truth, or too much of the truth of what she had seen.

5. The Magistrate considered all those factors. He also took into account the Defendant's virtually clear driving record, noting that he had only one previous offence of careless driving, his age of 64 and his illness as a chronic asthmatic. Today the Defendant did not put any grounds before me which would lead me to alter the Magistrate's sentence. The Magistrate adopted a very careful approach to the sentencing; and took into account what mitigation he could and gave credit for it. On that basis, the starting point of 6 months which he took was reduced to 4 months imprisonment.

6. I cannot fault the sentence. The Appellant may well be concerned about the management of his illness while he is in prison but I have no doubt that the Correctional Services Department can cope with somebody who is a chronic asthmatic and on that basis, I dismiss the appeal against sentence.