HKSAR v. NG CHI LUNG

   HCMA76/2010

   IN THE HIGH COURT OF THE

   HONG KONG SPECIAL ADMINISTRATIVE REGION

   COURT OF FIRST INSTANCE

   (Appellate Jurisdiction)

   MAGISTRACY APPEAL NO. 76 OF 2010

   (ON APPEAL FROM ESCC 6156 OF 2009)

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BETWEEN

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REASONS  FOR  JUDGMENT

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1.  The appellant was charged with one count of Assault Occasioning Actual Bodily Harm (“Charge 1”) and one count of Careless Driving (“Charge 2”). He pleaded guilty to both charges. On 13 January 2010, he was sentenced to 12 months’ probation for Charge 1 He was fined $1,500 and disqualified from driving for a period of 12 months for Charge 2. In addition, the Magistrate’s made an Order pursuant to section 72A paragraph 1(b) of the Road Traffic Ordinance, Cap.374 that the appellant attend and complete a driving improvement course. The appellant appealed only the period of disqualification from driving imposed for Charge 2.

2.  On 26 February 2010, I allowed the appellant’s appeal to the extent that the period of disqualification from driving be reduced from 12 months to 6 months. I indicated at that time that I would hand down my reasons for that decision in due course. These are my reasons.

3.  Both offences with which the appellant was charged were committed at approximately 3:30 a.m. on 19 December 2009. The appellant was involved in a traffic accident at the Garden Road Flyover in Central, Hong Kong. The accident was directly caused by the manner in which the appellant drove his vehicle.

4.  The appellant was at the material time a taxi driver. He was driving his taxi with passengers on board towards Garden Road in the direction of Queensway. He overtook another taxi travelling in the same direction and in so doing crossed the double white lines. In addition to the above he misjudged the distance between his taxi and that of the other driver and as a consequence there was a minor collision whereby damage was caused to the right front of the other taxi and the left rear of the appellant’s taxi.

5.  The Summary of Facts revealed that both the appellant and the other taxi driver alighted from their respective vehicles and a dispute ensued. The appellant punched the other driver which resulted in injuries to his eyebrow and eyelid. Police were summoned to the scene and the appellant was arrested.

6.  The magistrate quite properly categorised the appellant’s conduct in assaulting the other taxi driver as an incident of “road rage”. It is quite surprising then in the circumstances that a non-custodial sentence was imposed. This is all the more so when it is appreciated that the appellant has two previous convictions for assault in 2003 and in 2005, both of which were directly referable to confrontations with other road users.

This appeal

7.  It is submitted on behalf of the appellant that the period of disqualification from driving for 12 months was wrong in principle and in all of the circumstances manifestly excessive. On the appellant’s behalf, it is emphasized that he is a professional driver by occupation. He has for many years, been exclusively in employment as a taxi driver. It is submitted that a lengthy period of disqualification as this is, would in his circumstances cause to him undue hardship and have significant financial implications.

8.  On the appellant’s behalf emphasis is placed upon the fact that he has only one previous conviction for careless driving some five years ago, and that he has no convictions for other serious driving offences. True as this may be, the appellant’s accumulated fixed penalties are a damning indictment of his general disregard for the road rules. He has accumulated no less than 14 fixed penalty tickets in the past two years. These include infringements for crossing continuous double white lines, failing to comply with traffic signs, and failing to comply with road markings.

9.  Mr Joseph Lee for the appellant drew my attention to the fact that when a magistrate orders that a driver attend and complete a driving improvement course pursuant to section 72A(1)(b) of Cap.374, he or she may impose a lighter penalty than they might otherwise have imposed for that particular offence had that order not being made.

10.  On behalf of the appellant it is said there is no indication by the magistrate in the instant case whether the disqualification period of 12 months imposed was a lighter penalty than might have otherwise been imposed or whether any consideration had been given by the magistrate to this provision. I agree.

11.  Given the above, I am satisfied that it is necessary for me to look at the period of disqualification afresh (see Chou Shih Bin v HKSAR (2005) 8 HKCFAR 70).

12.  In the course of the appeal, it was accepted on behalf of the appellant that it is proper for a magistrate to impose a period of disqualification for a person convicted of an offence of careless driving even if that be a first offence (which it was not in the instant case). Given that concession the imposition of a period of disqualification cannot be said to be a sentence which is wrong in principle.

13.  There is no doubt in my mind that given the appellant’s driving on this occasion and given his previous driving record, that it was entirely proper for a disqualification order to be imposed.

14.  Having taken all matters into account, and considering the fact that the appellant was ordered to and has completed a driver improvement course, I was satisfied that the period of disqualification of 12 months was in all of the circumstances of this case manifestly excessive. I concluded that a period of disqualification of 6 months was proper and that was the basis upon which the appeal was allowed. The appellant’s driving was careless but not of the most serious type.

15.  Application was made on behalf of the appellant for 50% of the costs of the appeal, given that initially it had been submitted that (i) to impose an order for disqualification was wrong in principle; (ii) that the period of disqualification was manifestly excessive. The application for costs was made was on the basis that having failed on the first submission but having succeeded on the second submission an order for 50% of the appellant’s costs was thereby justified. Ms Irene Poon did not oppose that application. In those circumstances I made an order that the appellant be paid 50% of costs of the appeal in a sum to be agreed but in default of agreement, that to be taxed.