HKSAR v. LEE CHAK KUEN

HCMA 1034/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 1034 OF 2004

(ON APPEAL FROM KCS 4232/2004)

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REASONS   FOR   DECISION

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1.  The Appellant was found guilty, after trial, of Dangerous Driving, contrary to section 37(1) of the Road Traffic Ordinance, Cap. 374.  He was fined $4000, disqualified from holding all types of driving licence for a period of 18 months and was ordered to retake the driver’s examination and practical test before recovering his licence.

2.  Originally the Appellant appealed against both conviction and sentence, but abandoned his appeal against conviction on 2 December 2004 and proceeded only with his appeal against sentence.

Finding of Facts

3.  The Appellant was driving a light goods van with 5 persons on board at 1:20 a.m.  PW1 was driving his car at about 40 kmh in the right hand lane eastbound, of the slip-road Prince Edward Road East towards Tate’s Cairn Tunnel.  He had one passenger.  Visibility was good, the road surface was dry, traffic was light and the road was a gentle uphill curve to the right.  To the left of PW1 was a double solid line separating his lane from that for traffic going to Kwun Tong By-pass.  The Appellant, without any notice or warning, cut right from the left lane and crossed over the double solid lines into PW1’s lane.  PW1 immediately braked and took evasive action but was unable to avoid a collision with the Appellant’s vehicle.  The Appellant’s vehicle hit PW1’s left front bumper area and came to rest just ahead of PW1’s car at the right-most edge of the right lane.  PW1’s car suffered minor damage.

4.  The Appellant told the police who investigated that he had been driving in the left lane but suddenly his vehicle had gone out of control and the tyres “slipped” thus causing it to veer into the right lane and collide with PW1’s car.  The Appellant contended that PW1 had been driving too fast in the right lane and had veered towards the left lane, causing the accident.

5.  The Magistrate found the driving complained of fell far below that expected of a competent and careful driver, and considered that it should be obvious to a competent and careful driver that such driving would be dangerous.

6.  In considering sentence, the Magistrate took into account that the Appellant was a 19 years old transportation worker, who needed to support his parents.  His father was ill and the bills were the responsibility of the Appellant.  The Appellant told the Magistrate he needed his licence or he would lose his job and have to go on public assistance.  At the time, he earned $6,000 a month.  The Magistrate considered that no remorse had been shown.  He found that a $4,000 fine was appropriate and an 18 months disqualification period was correct.  The Appellant had only obtained his licence on 31 July 2003 and he was ordered to resit the driver’s licence test and practical examination before being allowed to drive again.

7.  On behalf of the Appellant, who had not been represented at trial, counsel submitted that for a monthly income of $6,000 a fine of $4,000 was manifestly excessive.  Further, the disqualification period of 18 months was too long for a professional driver, as such a lengthy disqualification would deprive him of his livelihood.

8.  Counsel pointed out that this was not the worst type of dangerous driving.  She urged the court to consider that a driving improvement course under S.72A of the Road Traffic Ordinance, Cap. 374 was more appropriate for the Appellant than an order that he resit the driving licence examination and practical tests.

9.  Overall, counsel submitted that the Appellant was an in-experienced, rather than an incompetent, driver and that a short period of disqualification, together with an order that he attend and complete a Driving Improvement Course, would achieve the right sentencing balance.

10.  The Respondent conceded that the sentence was on the high side, in particular the period of disqualification, but submitted the sentence was not manifestly excessive nor wrong in principle.

11.  Counsel for the Respondent referred to Li Chi Wai [1981] HKLR 29，in which O’Connor J said:-

“The loss of employment or income will in itself have a deterrent effect.  The effect of disqualification on the particular individual is a matter to be borne in mind, however it will not usually weigh very heavily where the individual has demonstrated that he is a danger to other persons using the road.  Dangerous professional drivers are a greater public menace than non-professionals, because they are likely to be driving on the roads for longer periods, and thereby have more occasions, on which they are likely to put the public at risk.  Persons whose employment involves regular driving, but who drive in a manner which puts the public at risk, are not entitled to preferential treatment which would give them opportunities to endanger the public, though to the extent that deprivation of employment on earnings is likely to have a deterrent effect the period of disqualification may be shortened.”

12.  With those sentiments, I respectfully agree.

13.  However, having considered this sentence in its totality I am of the view that, in all the circumstances of the case the period of disqualification is too long and that justice would be as well served by a 9 months’ disqualification.  Originally I considered making an order under s.72A, but having discovered that the course comprises one day of lectures, I find the Magistrate was correct in ordering the Appellant to resit the Driving Licence tests.  The offence occurred in the early morning, the Appellant was not working at the time, he had 5 passengers on board and was clearly joyriding.  The circumstances in which he drove across the right lane and veered into PW1’s vehicle indicated he lost control of his car.  For those reasons the roads of Hong Kong are better off without him, until such time as he is able to appreciate his responsibilities as a driver.

14.  Accordingly I allow the appeal, and substitute a period of disqualification of 9 months for that of 18 months.  The fine and the order to resit the driving examination and practical test remain unchanged.