HKSAR v. CHAN KAM TONG

HCMA922/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.922 OF 2004

(ON APPEAL FROM KCCC 6216 OF 2004)

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J U D G M E N T

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1. The appellant (the defendant) was charged with dangerous driving causing death.  He pleaded not guilty and after trial, the magistrate found the original charge not proved but convicted him of the lesser offence of careless driving.  The sentence imposed by the magistrate was a fine of $5,000 and a disqualification order of six months.  There was a subsequent application for review before the magistrate but the defendant was unable to persuade the court to change the sentence.  The defendant now seeks to appeal against the sentence, particularly the disqualification order.

2. The appellant, represented by counsel, Mr Oliver H. Davis, relied on three grounds of appeal.  It was argued that :

(1)     The learned magistrate based the sentence on matters that had not been proven at trial, namely;

(2)     (i)    That the appellant swerved his vehicle towards the pedestrians waiting at the pedestrian crossing and;

         (ii)    The appellant’s carelessness was the cause of death of the victim.

(3)     The sentence of HK$5,000 fine and six months’ disqualification from driving is manifestly excessive.

3. The magistrate had summarized both the prosecution and defence case as follows :

“The Prosecution’s case

2. The Prosecution’s case was simple.  The Defendant was a public bus driver.  At about 2 pm on 25 November 2003, he was driving a double-decker Citibus traveling on the second lane along the three-lane southbound carriageway of Nathan Road.  When it was approaching the light controlled junction with Waterloo Road, it was following a minibus on the second lane.  At this juncture of time, the vehicular traffic light governing the Defendant’s bus changed from green to amber.  The minibus ahead of Defendant’s bus slowed down to a halt but the Defendant swerved his bus into the first lane and accelerated to move the bus into the junction across the yellow-stripped pedestrian crossing against the amber light signal.  There were people standing on the pavement waiting to cross the road.  When the Defendant’s bus was moving across the yellow-stripped pedestrian crossing, the nearside front of the bus knocked down an 82 years old man who was then sent to hospital and certified dead later on the same day.  The bus was later inspected and no mechanical defect was found on the bus.  An autopsy was performed.  The injuries found on the victim were consistent with injuries sustained in the accident.

The Defendant’s case

3. The Prosecution’s case was not much in dispute.  The only material fact in dispute was the colour of the vehicular traffic light when the Defendant crossed it.  The Defendant elected not to give evidence.  Nor did he call any witness.  A record of interview was produced as a voluntary statement of the Defendant.  In the record of interview, the Defendant said the traffic light was green when he crossed it.  This statement was a mixed statement.  I have considered the direction in Sharp case.”

4. The magistrate had made a number of findings based on the evidence he heard :

(1) He rejected the defendant’s account given in his record of interview that the vehicular traffic light was green when he crossed it.

(2) He found that the defendant was driving at about 30 to 40 km/hr when the traffic light turned from green to amber.  The minibus in front of the bus had slowed down to a halt but the defendant swerved from the second lane to the first lane and accelerated to cross the light when it was amber.

(3) There were many people waiting on the pavement to cross the pedestrian crossing.

(4) The pedestrian light was red at the time of the collision.

(5) As no witnesses could tell how the victim came out to the road, he could not exclude the possibility of the defendant’s claim that the victim suddenly walked out from the pavement to the road.

5. The magistrate noted that the road junction was an intersection of two major roads and there were many people waiting on the pavement to cross the road.  The defendant’s action by “swerving” to its near side where many people were standing and waiting to cross the road, then accelerated and crossed the junction against the amber light was far below the standard of a prudent and reasonable driver.  That was the basis on which the magistrate convicted the defendant of careless driving.

6. As to the reasons for sentence, the magistrate had this to say :

“6. The Defendant had been a bus driver by occupation since 1998.  He had 3 previous convictions for careless driving, two in 1998 and the last one in April 2001.  I found the present case a serious type of the convicted offence.  The junction of Nathan Road and Waterloo Road is a wide intersection of roads often crowded with pedestrians walking and waiting to cross the road.  At the material time, there was no dispute that many pedestrians were waiting to cross the road.  The Defendant was quite far away from the traffic light when it turned amber.  Even the minibus in front of the Defendant’s bus was prepared to and indeed did stop before the light.  Yet the Defendant took the risk to jump the light by swerving to its near side where many pedestrians were standing on the pavement.  His judgment was plainly and gravely wrong.  As a result of his wrongful act, the victim was killed.  He also had a bad record of driving.  A heavy sentence must therefore be passed to deter him.  He was accordingly fined $5,000 and disqualified from driving for 6 months.” (emphasis added)

7. Even if the use of the word ‘swerve’ by the magistrate was not completely accurate, but in deciding whether the sentence was appropriate, the context of the circumstances must be considered, and not just a particular word.  At the material time, the defendant was approaching a major road junction with pedestrians waiting to cross the road; the minibus leading the way had stopped for the amber light, yet the defendant decided to change lane, picked up speed, albeit not beyond the limit, and drove across the road junction.  It was quite possible that a pedestrian could have thought that all vehicles would be stopping for the light, as the minibus had done, and failed to notice the approaching bus driven by the defendant.  The manner of driving in such circumstances was clearly careless and in fact the defendant was taking an unnecessary risk when he drove the bus to the lane that was closer to the pavement and proceed against the amber light.  It was indeed a case of poor judgment on his part.  Whether or not the pedestrian was also partly to blame, it remained a fact that he had died as a result of the collision with the bus which the defendant was driving through the amber light when the other vehicle had stopped.

8. In these circumstances, I consider that the imposition of a disqualification order was not wrong in principle.  As it was stated in the leading case of Chan Kwai Lai v. The Queen [1968] HKLR 31, that :

“2. The object of much road traffic legislation is to reduce the risk of death and injury on the road, and the most important consideration in making a disqualification order is the protection of the public.  For these reasons a court is fully entitled to consider all the circumstances of the case, including the fact that the offence has caused the death of a person, the accused’s driving record as a whole, etc.”

9. Having said that, I have to agree with counsel that the defendant’s record could not be said to be very bad.  As it was pointed out, the defendant had not been convicted of any careless driving offence since 2001 and no penalty points had been made against him.  The magistrate had already imposed the maximum fine.  A six-month disqualification order would appear to be manifestly excessive when the defendant’s livelihood as a bus driver was also considered.  I consider the appropriate disqualification order should be one of three months. 

10. Hence, this appeal allowed to the extent that the disqualification order is reduced to three months.  The fine remains the same.