HKSAR v. MOK KING YIN

HCMA114/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.114 OF 2002

(ON APPEAL FROM WSC 9676 OF 2001)

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J U D G M E N T

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1. The appellant was convicted after trial before a magistrate of one charge of dangerous driving causing death contrary to s.36(1) of the Road Traffic Ordinance, Cap.374 of the Laws of Hong Kong. He was sentenced to 18 months' imprisonment and disqualified from driving for a period of three years. At the outset of the trial, he pleaded guilty to driving with alcohol concentration in breath above the prescribed limited (Charge 2) and carrying excessive passengers (Charge 3). In respect of Charge 2, he was sentenced to imprisonment for 1 month to be served concurrently with the sentence of 18 months. The appellant appeals against the conviction of the charge of dangerous driving causing death and the sentence.

2. This tragic accident happened in the early hours of 5 May 2001 when the car driven by the appellant, a Mercedes Benz owned by his sister, went out of control, and then struck a bollard and the railings on the central island at the Garden Road end of Lower Albert Road, killing the deceased who was in the front passenger seat. The appellant and a number of his friends who were in the car at the time of the accident had been drinking alcohol in bars in Happy Valley and Lan Kwai Fong since the previous evening. They must have had a fairly large quantity of alcohol as reflected by the bill of a bar called D26 which was in excess of $3,000. Some of the passengers were in an excited mood and told the appellant to drive faster two to three times. PW1, one of the passengers who had nine years' driving experience, estimated the speed of the car to be 70 to 80 kph. He thought the speed was too high and told the appellant to slow down or stop and as a result the appellant applied the brakes and the car went out of control.

3. The magistrate found that the accident was caused by excessive speed and excessive alcohol consumed by the appellant.

4. Mr Ching Y.Wong, SC who appeared for the appellant with Mr Grounds, essentially made three points. Relying on two lines in the M.V.E. Accident Report which described the condition and pressure of the off-side axle two tyre as unsatisfactory, he submitted that the accident could have been caused by the tyre. There is completely no substance in the submission. The motor vehicle examiner found no mechanical defects in the car prior to the accident. Mr Wong also submitted that it was very unusual when the brakes of a vehicle were applied, even at the speed of 70 or 80 kph that it would spin out of control like the appellant's car did and that there was no medical evidence to prove that because the appellant's alcohol level as at 39 mg that he was or must have been so badly affected that he was unable to control the vehicle when he braked. I find these arguments totally without merit. The magistrate had made clear findings that the accident was caused by speed when the appellant was driving under the influence of alcohol. There is, in my view, ample evidence to support his conclusions.

5. The next matter raised by counsel was the section in the Road Traffic Ordinance which creates the offence, namely s.36. It was argued that s.36(4) created a presumption and that the magistrate had misdirected himself in this regard. In order to put the matter in context, it is necessary to set out s.36(4) to (8) and then to see how the magistrate dealt with it. S.36(4) to (8) are in these terms :

(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if

(a) the way he drives falls far below what would be expected of a competent and careful driver; and

(b) it would be obvious to a competent and careful driver that driving in that way would be dangerous.

(5) A person is also to be regarded as driving dangerously within the meaning of subsection (1) if it would be obvious to a competent and careful driver that driving the motor vehicle concerned in its current state would be dangerous.

(6) For the purposes of subsections (4) and (5), "dangerous" refers to danger either of injury to any person or of serious damage to property.

(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including

(a) the nature, condition and use of the road concerned at the material time;

(b) the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c) the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

(8) In determining for the purposes of subsection (5) the state of the motor vehicle, regard may be had to anything attached to or carried on or in it and to the manner in which it is attached or carried.

The magistrate's treatment of s.36 is to be found in two short passages in his Statement of Findings. The first passage is in paragraphs 5 and 6 at page 14 of the Appeal bundle. These read :

"5. Section 36 of the Road Traffic Ordinance is fairly comprehensive in its scope. Subsections (4) to (8) define what is meant by "dangerous driving" and to what the court must have regard.

6. The prosecution must prove that the accused was at the material time driving in a manner which fell far below what would be expected of a competent and careful driver in the circumstances in which it would be obvious to such competent and careful driver that driving in that way would be dangerous."

The next passage in paragraph 33 at page 20 of the Appeal Bundle reads :

"33. Section 36(7) of the Road Traffic Ordinance requires the court to have regard to all the circumstances of the case in determining what would be expected of, or obvious to, a competent and careful driver in the case in question, including various specific matters."

6. I disagree with counsel that the words "to be regarded" in subsection 4 creates a presumption. What it really means is that once the court is satisfied with all the conditions or elements set out in subsections 4 and 7, it is to be regarded or considered to be driving dangerously. That is not a presumption. It is clearly a definition or as Mr Madigan who appeared for the respondent put it in his written submission "at the very least an evidentiary burden". Once the various matters have been proved beyond reasonable doubt, the offence of dangerous driving is made out. In my view, the magistrate adequately and correctly directed himself on the meaning of s.36.

7. There is no substance in any of the grounds advanced. The appeal against conviction is dismissed.

Sentence

8. Sentences imposed for the offence of dangerous driving causing death have hitherto been at a very low level as most previous decisions in Hong Kong suggest. This is a lamentable state of affair. Motor cars can be as lethal weapons as guns or knives if they are not properly used. Anyone who drives dangerously and kills must expect to pay a high price. Heavy penalties are necessary where aggravating features exist. In the present case, aggravating features of drinking and showing off were found by the magistrate. I would be more than prepared to uphold the sentence of 18 months meted out by the magistrate if I am not constrained by previous authorities. There is no reason why Hong Kong should not increase the maximum sentence to 10 years and follow the English sentencing approach. The loss of a human life, from whatever angle one looks at it, is a very serious consequence indeed.

9. Not without some reluctance, I would allow the appeal and reduce the sentence of 18 months to 9 months' imprisonment.