LAW MAN HOI v.THE QUEEN

Criminal law - Road Traffic offences - sentencing - reckless driving - imprisonment - custodial sentences proper where offence caused not by mere error of judgment or foolishness but by deliberately taking a risk or driving in an irresponsible manner which puts the safety of others at risk - mandatory re-testing before disqualification ceases - Section 37(1}, 70 Road Traffic Ordinance, Cap.374

IN THE SUFREME COURT OF HONG KONG

(Appellate Jurisdiction.)

Magistracy Appeal No. 221 of 1985

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REASONS FOR JUDGMENT

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1. On 24th January 1985 the appellant was convicted of reckless driving contrary to section 37(1) of the Road Traffic Ordinance, Cap.3'74 when he was sentenced to 6 months imprisonment and disqualified from holding or obtaining a driving licence of any class for 2 yearr. From that conviction he appealed but at the hearing-counsel informed the court that the appellant no longer sought to Pursue an appeal against conviction but wished to appeal against sentence only. The appeal proceeded on that limited basis.

2. The learned magistrate found that on 4th September 1984 the appellant drove taxi registered number CS5099 in the vicinity of the Kaitak International Airport Terminal. At the time the appellant was looking for passengers and in the process was stopping and starting his taxi outside the departure hall including along a no-stropping area of the roadway. The appellant's manner of driving was observed by 3 police constables.

3. The appellant's driving attracted the attention of the police constables and he commenced to drive away from the restricted stopping area. Two of the police constables attempted to stop the appellant by travelling by a vehicle to where they rightly anticipated he would endeavour to leave the area. On alighting the two police constables walked towards the taxi raising their arms to indicate to the appellant to stop. Instead the appellant reversed his taxi for a short distance and then accelerated forward towards them. The police constables had to jump out of the taxi's way which then turned into an unnamed airport road.

4. The remaining police constable, who had moved to a different position, then attempted to stop the taxi. However, the appellant similarly drove toward this remaining police constable who also had to jump out of the way injuring his knee in the process. The learned magistrate found that the appellant had deliberately driven his taxi towards the police constables. The learned magistrate further held that even if the appellant did not intend to injure the police constables, he drove in a manner totally reckless to their safety.

5. The appellant admitted 18 prior road traffic offences including a conviction for careless driving in 1980 and for dangerous driving in 1982. The learned magistrate was satisfied that an immediate custodial sentence was appropriate and imposed a sentence of 6 months imprisonment. Counsel for the appellant submitted that the appellant who was separated from his wife had custody of his 8 year old daughter and also looked after his parents. He had been a taxi driver for 7 years and relied on his taxi driver's licence for employment. This was the first custodial sentence imposed on the appellant and it was submitted that the proper sentence would have been for a shorter term and that in all the circumstances it should have been suspended.

6. I was referred to the Court of Appeal's judgment in Wu Yat Cheung v. The Queen Criminal Appeal No. 1107/75, where a sentence of 6 months imprisonment on a charge of dangerous driving was reduced to 3 months imprisonment. In that case the appellant, after robbing a taxi driver, ejected the taxi driver, and himself drove the taxi away in an attempt to evade arrest. In the course of the attempted escape, the appellant collided with another taxi and rammed a road sign. The appellant had been convicted of robbery, dangerous driving and other road traffic offences. The Court of Appeal in reducing the road traffic offence sentences observed:

"We see no reason to interfere with the sentences imposed for the robbery, which were richly deserved. However, we regard the other offences as having arisen out of a foolish attempt to evade arrest and as not deserving sentences higher than would normally be imposed for similar offences unconnected with a robbery."

7. Relying on that authority, Counsel submitted that no serious offence such as robbery arose in the present case and that on the facts it was less serious than the facts before the Court of Appeal.

8. I am unable to accept that submission. The Court of Appeal stated that the sentence of 2½ years for robbery was proper and then understandably turned to consider the dangerous driving offence separately from the robbery. The only facts relevant to the dangerous driving offence were the facts which constituted the dangerous driving. The facts of the prior robbery were irrelevant. The facts relating to the road traffic offence were that in driving the taxi dangerously the appellant had collided with another taxi and rammed a road sign.

9. The instant facts are certainly not less serious for the present appellant's taxi did not merely collide with another taxi and other property but was deliberately driven towards 3 police constables who were properly endeavouring to stop the taxi. All 3 police constables were forced to jump out of the way. One police constable suffered minor injuries in the course of evading the taxi.

10. The criteria for imposing custodial sentences where dangerous driving causes death were considered on appeal in Mak Kau v. The Queen (1978) HKLR 39. The test applied by the Chief Justice in that case is also helpful general guidance in cases of reckless or dangerous driving where the driver deliberately drives in a manner which puts the safety of others at risk. The test applied by the Chief Justice was whether the accident was caused by an error of judgment or foolishness or by the deliberate taking of a risk or driving in an irresponsible manner. Only when the offence fell within the latter category should a custodial sentence be imposed.

11. Applying that test to the present facts, it is clear that the driving of the appellant which caused the police constables to jump out of the way, was not a mere error of judgment but he deliberately drove towards the police constables to force them to take evasive action so that he could escape.

12. A custodial sentence was clearly appropriate. As to the term of that sentence I accept that the appellant had not previously been sentenced to imprisonment but this was a bad case of reckless driving. The appellant's prior driving record certainly did not entitle him to any particular leniency. On the other hand I accept Counsel's submission that mere imprisonment and the 6 weeks he has already spent in prison has been a substantial deterrent.

13. After considering Counsel's, submissions and other sentences for similar cases, I am satisfied that a sentence of 3 months imprisonment for the present offence would be adequate. The remaining question is whether in terms of Counsel's submission the sentence should be suspended. I am well satisfied that the appellant's reckless driving was far too serious for the term of imprisonment to be suspended and that submission is rejected.

14. The only other matter is that the learned magistrate, as he helpfully points out in his Statement of Findings, overlooked making what is now a mandatory re-testing order, under Section 70 of the Road Traffic Ordinance. I may now make such an order under Section 119(d) of the Magistrates Ordinance, Cap. 227.

15. The appeal against conviction is dismissed. The appeal against sentence is upheld to the extent that the sentence of 6 months imprisonment is reduced to 3 months imprisonment. The 2 years disqualification from holding or obtaining a driver's licence of any class is confirmed. In addition in terms of Section 70, that disqualification shall if necessary further continue until he had passed the prescribed test of competence.