THE QUEEN v. CHEUK YUNG-KAN

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JUDGMENT

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1. The Appellant was convicted on his own plea of reckless driving, an offence which, on summary conviction, carries a maximum penalty of 12 months' imprisonment or a fine of $10,000 or both, and a liability to disqualification.

2. The Appellant was not represented before the Magistrate, who imposed a sentence of 3 months' imprisonment and disqualified him from driving all classes of vehicle for a period of 18 months.

3. It was submitted on his behalf that, had he been so represented, a number of factors which mitigate the seriousness of the offence but which were not drawn to his attention would have been put before him.

4. The Appellant is aged 30. He has no previous conviction of any kind. He is a single man and he had started his own business not long before this unfortunate accident occurred.

5. On the day in question, he was driving a private car CK3206 along Wang Tat Road in Yuen Long, when a light goods vehicle travelling in the same direction as he was, but in the inside lane, whereas he was driving in the outside lane, halted on the inner lane just before a zebra crossing.

6. It was suggested to me, and I think this is borne out by the plan, which was produced, of the accident area, that the Appellant's view of the zebra crossing, as he came towards it, was partially blocked by the light vehicle.

7. According to the Agreed Facts, he did not stop his vehicle but accelerated, when he saw the other vehicle stop just before the zebra crossing. As he carne very close to the crossing, however, three young girls, who had stepped onto the zebra crossing in front of the light vehicle, emerged from the right hand side of that vehicle into his line of vision. He thereupon applied his brakes, unhappily too late, and the near side front of his vehicle knocked down two of the girls, who suffered substantial injuries and had to be admitted to Princess Margaret hospital.

8. There is nothing in those Agreed Facts which shows the speed at which the Appellant was driving, and I therefore feel it right to assume in his favour that he was not driving at a speed which was unreasonable in the circumstances.

9. The Appellant had then only been in possession of his first driving licence for a very short period. He was thus inexperienced in driving. This does not mean that it was sufficient for him to drive at a lower standard of care than an experienced driver, but it may explain why he continued, instead of halting as he should have done when he saw the other vehicle on his left doing so. A more experienced driver would surely have realized that the other vehicle was stopped because somebody was about to enter the crossing.

10. I have had my attention drawn to CHEUNG Kin-man v. R¹. In dealing with the correct test to be applied in relation to dangerous driving causing death, Bewley J., who delivered the judgment of the court, commented as follows:

 

"We endorse the remarks of Briggs, C. J. in Chung Man-kin v. R. [1978] H.K.L.R. 544, that it is only in cases of gross negligence, or deliberately dangerous driving, that an immediate prison sentence is appropriate."

11. That is a comment in relation to the more serious offence of dangerous driving causing death, which has now been replaced by the offence of reckless driving causing death. I would adopt a similar test in relation to reckless driving, and suggest that an immediate prison sentence is appropriate only in cases of gross negligence, or of deliberately reckless driving.

12. I am inclined to the view that this was a case of serious mis-judgment by an inexperienced driver, rather than of gross negligence or deliberate recklessness.

13. Against that background, an immediate custodial sentence was manifestly excessive, taking into account also the fact that the Appellant reported the matter to the police and was admittedly seriously upset by what had taken place.

14. It is understandable that the Magistrate took a serious view of what happened because of the unfortunate injuries which the girls sustained. Nevertheless, if the various additional mitigating factors, which have been urged upon me, had been put to him he might well have inclined him to be more lenient.

15. In the result, I think that the right course, accepting that a sentence of imprisonment was required, would have been for him to suspend it.

16. I see nothing wrong, however, with the long period of disqualification which he imposed. I therefore allow the appeal to the extent that I will vary the order from 3 months' imprisonment to one of 3 months imprisonment suspended for 2 years. Otherwise the sentence will stand.

[1981] H.K.L.R. 664