HKSAR v. SO PING YIU

HCMA1218/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

MAGISTRACY APPEAL NO. 1218 OF 1998

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J U D G M E N T

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1. The Appellant has not advanced any ground to show that the convictions under appeal were wrong. He was represented by Counsel and his case of not being the driver of the tow-truck in question had been thoroughly presented to the Magistrate who, after careful examination of the evidence, found the Appellant being the driver and therefore guilty of the offences as charged. The appeal against the convictions is therefore dismissed.

2. Regarding the appeal against sentences, the Magistrate gave the following sentences on the three charges under appeal :

i) For the offence of driving whilst disqualified - Charge 1 -six months' imprisonment.

ii) For using a motor vehicle without third party insurance -Charge 2 - one month, to run concurrently with Charge 1.

iii) For reckless driving - Charge 3 - six months, three months to run concurrently with Charge 1 and three months consecutive with Charge 1.

The Appellant was also disqualified for three years from driving for the three offences, concurrent. The Appellant had two previous records of driving whilst disqualified. He had previously been sentenced to jail for 28 days for his second such record. This time the Magistrate gave him six months. Regarding the reckless driving, the Appellant had no similar record.

3. In R v. Steel [1992] TLR 351, the Court of Appeal in England ruled that both the quality and the consequences of a reckless driving were relevant for consideration of an appropriate sentence. The offence of driving whilst disqualified was unmitigated by the Appellant's two similar records, and the six months' imprisonment this time is appropriate. Again, the manner of the reckless driving as described by the police officers and accepted by the Magistrate was also very bad. Going against a traffic signal on the road and jumping red lights, causing other drivers to brake to avoid him and getting partly onto a pavement with pedestrians on it were all very serious. The six months' imprisonment as imposed by the Magistrate was apparently warranted. However, there was no previous record of the Appellant committing offences similar to the reckless driving charged of which he was convicted.

4. The two offences of which the Appellant was convicted each attracted a like term of six months' imprisonment arose out of the same transaction. I would have thought it proper for consideration to be given for the sentences to run concurrently, although I agree with the Magistrate that consecutive sentences could be passed. Taking into account the whole circumstances of the offences, especially that there was no previous record of reckless driving and that no property was damaged and no person was injured, I would think that the total of nine months in effect is over the proper punishment to reflect the gravity of the situation. I think the proper sentence should in total be six months and the two sentences for Charges 1 and 3 should be allowed to run concurrently. The disqualification for three years is mandatory and those concurrent sentences should not be disturbed.

5. I hasten to add that reckless driving as well as driving whilst disqualified are both very serious offences, and this judgment should not be taken as a rule that in case that both offences took place at the same time or in the same transaction, the sentences should run concurrently. My decision only relates to the particular circumstances of this case.

6. In the result, the appeal against the convictions is dismissed. The appeal against sentences is only allowed to the effect that the six months' imprisonment for Charges 1 and 3 relating respectively to driving whilst disqualified and reckless driving is to run concurrently. The other sentences remain undisturbed.