HKSAR v. LEE KWOK WAH

HCMA595/99

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 595 OF 1999

(On appeal from ESCC 935 of 1999)

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J U D G M E N T

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1. The appellant, Mr LEE Kwok-wah, was convicted after trial on a charge of reckless driving. He was sentenced to four months' imprisonment suspended for a period of 12 months. He was further fined $5,000 and disqualified for a period of 12 months.

2. It is the prosecution's case against the appellant that he overtook a stationary bus in front of a zebra crossing. It so happened that there were two young boys running across the crossing. One of them, unfortunately, ran into the appellant's private car. The boy suffered very minor injuries. There appears to be no dispute that after the impact, the appellant attended to the boy then continued to drive for three vehicle lengths, before stopping in the parking place in order to avoid causing congestion in the area.

3. The appellant agreed that he was originally behind the bus, but on hearing the vehicles behind started to sound their horns, he overtook the bus. He said he did not notice anyone on the crossing at that time. But after he drove past the front of the bus, he then saw two boys running across the crossing. He tried to brake, but one of those boys ran into the front part of his car. The appellant admitted that he was, at that time, in a bit of a hurry. He also admitted that he knew there was a zebra crossing.

4. Much argument was raised as to how far the bus was away from the crossing when the appellant overtook it, and whether the bus driver should have stopped earlier than he claimed to have to set down passengers. Such matters, in my view, are not entirely relevant.

5. What cannot be in dispute is that the appellant overtook a stationary bus just in front of the zebra crossing. He tried to drive past the zebra crossing when this bus was stationary to his left. That, in my view, is indeed a reckless step to take. As the learned magistrate stated in his statement of findings, and I quote:

"Pedestrians have the right of way on zebra crossing and the Road Users' Code tells drivers that in the area marked by zigzag lines on the approach to a zebra crossing, you must not overtake the moving vehicle nearest the crossing or the leading vehicle which has stopped to give way to a pedestrian on the crossing, even when there are no zigzag marking near the stop, or to overtake just before a zebra crossing."

6. But I am afraid this is precisely what the defendant did. When there was a stationary vehicle just in front of a zebra crossing, he overtook it and then tried to drive past the zebra crossing.

7. When the appellant noticed the stationary bus in front of the zebra crossing, he must realise that there would be pedestrians trying to cross the road on the zebra crossing. He must realise that by driving across the crossing in that circumstances there would be obvious and serious risk. When the appellant overtook the stationary bus in such circumstances, and then drove past a crossing, he must be acting in a reckless manner.

8. In my view, the appellant was rightly convicted of the charge. There is nothing unsafe and unsatisfactory about such conviction. In the circumstances, the appeal against conviction must be dismissed.

9. On the question of sentence, the appellant has a clear record, having been a driver for some 15 years. He also is a handicapped person and relies heavily on his car for his work and in moving about generally. Whilst reckless driving, of course, is a serious traffic offence, I am of the view that the present case perhaps was not a very bad case of the type. Indeed, I think it is fair to describe it as a case perhaps of less severity. The boy was not seriously injured and he suffered no permanent disability. There are no aggravating factors other than he was trying to drive past a zebra crossing, having overtaken a stationary vehicle.

10. I bear in mind the background, the facts of the case. I am of the view that the offence was committed when he drove past a zebra crossing, be it recklessly, he had probably failed to notice the boys who were crossing or about to cross the zebra crossing. I have taken into consideration the entire background of this matter including the additional materials placed before me pertaining to the impact and effect of the disqualification on the appellant, including his job and his daily life. I am persuaded that the sentence imposed on the appellant is, indeed too severe. I do not consider a term of imprisonment, be it a suspended term, is necessary at all. Whilst a period of disqualification is called for, I am also persuaded that a period of 12 months is far too long. I think the fine of $5,000 plus a period a three months' disqualification is adequate to reflect the seriousness of the case against the appellant.

11. In the circumstances, the appeal against sentence is allowed. The fine of $5,000 is to remain, but the suspended term of imprisonment is set aside, and the period of disqualification is reduced from 12 months to one of three months.