HKSAR v. TO CHAK HANG

FAMC No. 39 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 39 OF 2015 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL
FROM HCMA NO. 542 OF 2014)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1.  We dismissed this application for leave to appeal after hearing counsel for the applicant, indicating that we would give our reasons for doing so in due course, which we now do.

2.  The respondent, a taxi driver, was convicted in the magistracy[1] of one count of causing death by dangerous driving contrary to section 36(1) of the Road Traffic Ordinance[2] and sentenced to 16 months’ imprisonment, disqualified from driving for 2 years and ordered to complete a driving improvement course.  He had struck and caused the death of the victim, a passenger who had fallen off the back of a motorcycle.

3.  The respondent’s appeal to the Court of First Instance[3] was allowed and his conviction quashed and sentence set aside.

4.  The prosecution (as applicant) accepted that the conviction for causing death by dangerous driving was correctly quashed but applied for leave to appeal, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance[4], on the ground that a substantial and grave injustice had been done to the applicant in that the judge’s failure to substitute a conviction of careless driving constituted a serious departure from accepted norms to the applicant’s disadvantage.

5.  The scope of section 32(2) is certainly wide enough to embrace appeals by the prosecution against acquittals on the ground of substantial and grave injustice but, like all appeals on that ground, they will be rare.  We are satisfied that the present case is not such a case.  The distinction between careless and dangerous driving being essentially a matter of fact and degree[5], the judge’s decision that the respondent’s manner of driving in the present case was not such as to fall below what would be expected of a careful and competent driver is not one which involves a departure from any relevant norm of criminal law.  Instead, it is a decision based on his view of the facts.  Ms Lam, for the prosecution, informed us that the judge was reminded at the trial that an alternative conviction on the lesser charge of careless driving was open to him on the evidence, so the issue was squarely raised before him. Whilst we might have reached a different conclusion to the judge on the issue, it is clear from his judgment that he considered but declined to convict the respondent of the lesser offence of careless driving[6] and it is not for this court to try the case again.

6.  Subsequent to the hearing, the respondent wrote to the Appeal Committee asking for an order for costs to follow the event, to be taxed if not agreed. In response, the prosecution indicated it did not oppose this application and so we make an order accordingly.