HKSAR v. YIM KA LOK

HCMA 845/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 845 OF 2002

(ON APPEAL FROM ESCC 1896/2002)

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J U D G M E N T

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1. On 26 June this year, the Appellant appeared before I.S.C. Candy Esq. at the Eastern Magistracy on a charge of dangerous driving to which he pleaded guilty. He was in his early twenties and had a clear record. At the time of the offence, which was on 18 March 2002, he had 8 months' driving experience.

2. The piece of driving in question took place along the Eastern Corridor at daytime, in fine weather, along a dry road surface and in medium traffic conditions. A police officer was driving there in an unmarked police car performing traffic enforcement duty.

3. How the Appellant drove may be taken from the Magistrate's Statement of Findings, in which he described the police officer as "PW1":

"PW1, a Police Officer, was driving an unmarked police vehicle along Island Eastern Corridor on the 2nd lane from the left heading West.

The Defendant is aged 23 with about 8 months' driving experience. He was driving a light goods vehicle on the 3rd lane from the left on the same stretch of roadway also heading West.

The Defendant's vehicle passed PW1's vehicle and cut in front of it across the 2nd lane at speed and continued into the 1st lane from the left.

PW1's vehicle was equipped with a video recorder and PW1 sought to follow the Defendant's vehicle to capture the Defendant's manner of driving on video tape.

Despite the fact that PW1 was travelling at speeds of up to 96 Km/h he was unable to keep up with the Defendant's vehicle.

The Defendant was then seen to cut from the 1st lane to the 2nd lane. Travelling ahead of the Defendant on the 2nd lane was a public bus with a light goods vehicle ahead of the bus on the 2nd lane.

This light goods vehicle and the bus had stopped because of the traffic ahead. The Defendant's vehicle then suddenly cut from the 2nd lane back to the 1st lane from the left. At the same time the bus driver had put on his left indicator and was beginning to put to the left into the 1st lane.

The offside of the Defendant's vehicle came into contact with the near-side of the bus. This led the driver of the bus to swerve to his right back towards the 2nd lane causing the offside of the bus to collide with the near-side of the light goods vehicle already on the 2nd lane.

Following the collision with the bus, the Defendant lost control of his vehicle. The vehicle careered from the 1st lane to the 4th lane and rammed another vehicle on the 4th lane on its offside.

The Defendant's vehicle then rammed into the central divider between the Westbound and Eastbound carriageways.

The driver of the bus, the Defendant and his passenger sustained slight injuries. The weather was fine, the road surface was dry and the traffic condition on this busy highway was described as "medium".

The Defendant, who was unrepresented had no previous convictions. In mitigation he asked for leniency and commented that no serious injuries had been sustained."

4. The Magistrate sentenced the Appellant to four months' imprisonment by taking a starting point of six months' imprisonment and allowing a guilty plea discount of two months. He also disqualified the Appellant for two years and ordered that he be re-tested before being granted a driving licence in future. The Appellant sought a review of sentence, but the Magistrate dismissed it.

5. As to why he sentenced the Appellant as he did, the Magistrate said this in his Reasons for Sentence:

"This was, by any standard, very bad driving by the Defendant. With limited experience he drove in a manner which posed obvious risks to other road users. Although I made reference to the Defendant treating that section of road as "a private racetrack" I did not intend to indicate that the Defendant was driving competitively with others or engaging in racing. There was no evidence of this and I did not consider his driving, bad as it was, to amount to racing or competitive driving.

The Defendant was, however, driving at a speed considerably in excess of the speed limit on a highway which is generally busy and the driving was deliberate and continued for a considerable distance. It was not a momentary error of judgement on the Defendant's part. It ended only when the Defendant lost control of the vehicle following the first collision.

These factors, taken with the Defendant's inexperience, were, in my view, aggravating features.

While no death or serious injury resulted from the Defendant's offence I was satisfied that the principles enunciated in Boswell applied in this case (c.f. Road Traffic: Law & Practice. Linda Dobbs & Marks Lucraft 3rd ed. pp 118, 119).

The location of the Defendant's offence is a very busy highway on which I drive every day. The type of aggression driving practised by Defendant is all too prevalent and I thought a deferent sentence appropriate given the aggravating features. In arriving at such opinion I was mindful of the distinction drawn between offences contrary to S. 36 Cap. 374 (Dangerous Driving causing Death) and S. 37 (Dangerous Driving). The maximum penalty for this offence is 12 months imprisonment and a fine up to level 3.

Even though the Defendant is a first offender I considered that only a custodial sentence would serve as a deterrent both in rem and in personam."

6. The Appellant now appeals against sentence. Five amended perfected grounds of appeal have been advanced by his Counsel. They read:

"1. The Learned Magistrate was over-influenced by the view that "there was no serious injury or even death was pure good fortune" and "was not due to any action or restraint or care" on the part of the Appellant and therefore had failed to give any consideration or at all to the fact that there was no serious injury or death caused to other drivers/passengers involved in the accident.

2. The Learned Magistrate erred in principle by coming to the conclusion that Community Service Order would not be appropriate.

3. The Learned Magistrate was over-influenced by the view that the "sheer lack of consideration for other road-users for their safety is part of the aggravating features" and therefore had placed excessive weight on the fact that the Appellant was at the material time driving with sheer lack of consideration.

4. The Learned Magistrate also failed to consider the following factors which would have mitigate the seriousness of the offence but where not drawn to His attention would have been put before Him as the Appellant was unrepresented:

(a) The Appellant is and was at all material times residing with his mother who was 50 and also 4 younger siblings. 3 out 4 of his siblings are students whereas his mother is a housewife. As a result he is the main breadwinner of the family. His father owned a transportation company and had fled in 1998 due to financial problems, since then he started to earn the living for the whole family.

(b) The Appellant because of the present accident, was so remorseful and scared that before he was convicted before the Learned Magistrate, he quitted his job as a driver for Movenpick Marche and intended never to drive again.

(c) The Appellant was interested in cooking and since in 1998 his father fled, he had worked as a junior cook. It was only because of the further financial crisis in Hong Kong after the 911 event, the Appellant was laid off and he could not find himself a job for more than a month. In view of the financial pressure on himself as well as his family, he took the job from Movenpick Marche as a driver, notwithstanding he did not like driving very much.

(d) Since the Appellant had quitted the job as a driver, he had been able to secure himself with a job as a junior cook. He was employed by the present employer notwithstanding the present employer had full knowledge of the accident occurred and indicated that chance would be given to the Appellant. The Appellant will lose his job if he is remanded.

(e) In respect of the present accident, it is a mere coincidence that the Appellant had shifted to the 1st lane and the bus was shifting to the 1st lane at the same time that caused the accident.

(f) The present case, though is a bad case, but is not on the top of the scale of the offence.

(5) In all the circumstances, the sentence on the Appellant was manifestly excessive and/or wrong in principle."

7. Having given careful consideration to the arguments advanced in support of the appeal, the conclusion to which I have come is as follows. I do not think that the Magistrate was overly influenced by any of the specific views which he expressed. I do not think that he erred in principle. Nor do I think that he failed to give due consideration to any relevant factors.

8. I have also given careful consideration to what has been urged on behalf of the Appellant by way of his personal circumstances. Having considered the same and everything that has been said on his behalf, I am not persuaded that the sentence is manifestly excessive or wrong in principle. The sentence was a severe one. But the circumstances were such that I do not feel able to say that the sentence was so severe as to justify my interfering with it. After all, people have to be protected from persons who drive as this Appellant did. Indeed, persons like him have to be protected even from himself. Reference is made to his family. He could have caused them greater hardship if he had killed or severely injured himself. He could have caused great hardship to other families if he had killed or severely injured anybody else. The way he drove posed a great risk of dire and even tragic consequences.

9. In the result the appeal is dismissed.