HKSAR v. CHOI KIN WAH

HCMA 886/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 886 OF 2002

(ON APPEAL FROM WSS 5545/2002)

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J U D G M E N T

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1. The Appellant is a taxi driver. His taxi was involved in a collision with a private car when he carelessly allowed his taxi to veer onto the opposite carriageway and into the path of the oncoming car. He was charged with careless driving.

2. On 26 July 2002, he appeared before Allan J Wyeth, Esquire, in the Western Magistracy to face that charge. He was convicted after trial, fined $500.00 and ordered to pay $2,500.00 compensation to the owner of the private car with which he collided and which he damaged. His appeal is confined to the compensation order.

3. In his Reasons for Sentence, the Magistrate indicates that, but for the Appellant's limited means, he would probably have fined him $1,500.00 (rather than only $500.00) and would probably have ordered him to pay say $1,000.00 costs (rather than not made any order for costs at all). The Magistrate also refers to the car owner's evidence, which he acted upon, that the repairs to the car necessitated by the collision came to $2,900.00 something. After he had ordered $2,500.00 compensation, the Magistrate received a fax from the car owner. This shows that the repairs came to $2,800.00. Although this is less than the $2,900.00 something of which the car owner spoke in court, it is clear from the Magistrate's Statement of Findings that the fax does not affect his belief that $2,500.00 is appropriate compensation.

4. Despite everything urged by the Appellant, I do not consider it appropriate to interfere with the compensation order made by the Magistrate save to the extent of setting aside the imprisonment in default ordered by the Magistrate. There is no power to order imprisonment in default of payment for compensation, the enforcement of payment for compensation is by other means: The Queen v. Tang Wan Yau, Criminal Appeal No. 554 of 1994, 20 December 1995.

5. The order of imprisonment in default is set aside. With that variation, the appeal is otherwise dismissed.