THE QUEEN v. LI KEUNG TAK

HEADNOTE

Careless driving - $2,500 fine plus 12 months disqualification too severe - sentencer correct to take penalty tickets into account.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 94 of 1986

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Oral judgment reduced to writing

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1. The appellant pleaded guilty to careless driving. He was fined $2,500 with $500 costs and disqualified from driving all classes of vehicles for 12 months. He was also ordered to be retested.

2. At 3 p.m., on 14th March last year, the appellant wasdriving his taxi along Fung Mo Street towards Tung Tau Estate. It was alleged by the police, and admitted by the appellant, that his speed was 30 m.p.h. Some distance from the junction with Hang Lam Street, the appellant noticed an old lady crossing the road from right to left. He braked but could not avoid the pedestrian, who was injured and hospitalised for 22 days. At the time of the accident the road surface was dry, the weather was fine and traffic was light.

3. There are railings on each side of the road. There is no pedestrian crossing near the scene of the accident. Clearly the victim was taking a risk in crossing the road at this point. Never-theless, if the appellant had kept his wits about him and his eyes open, he would have seen her in sufficient time to avoid the accident.

4. The appellant is a taxidriver, who was earning $3,500 per month before his conviction. He now earns $2,000 per month as a restaurant waiter. He supports a wife and two young children.

5. The learned magistrate took a serious view of the matter. He described the appellant's driving as 'very careless, irresponsible and incompetent'. I cannot disagree with these sentiments.

6. I take issue with him, however, when he goes on to say, 'I have doubts if the defendant was doing only 30 m.p.h. at the time of the accident.'. With respect, this was the speed alleged by the Crown. He also was of the opinion that even 30 m.p.h. was too fast a speed for this stretch of road. I am not familiar with the area, so I must defer to the magistrate's local knowledge but, an the facts of the case and looking at the sketch plan,30 m.p.h. does not seem unreasonable to me.

7. The appellant has one previous conviction for careless driving, in 1984, for which he was fined $200. Since 1983, he also has accumulated six fixed penalty tickets for failing to comply with various signs and lights. The magistrate took due note of this record and concluded his statement of findings thus:

"The roads of Hong Kong are among the most crowded in the Pacific both in terms of motor, vehicles and of pedestrians, and drivers here have to exercise not only due care but extra care and particularly so when seeing old people in residential districts. In my view the sooner that drivers like the defendant are strictly dealt with when convicted and put off the road for a suitable period of time the sooner our roads will become safer. Since 1984 the legislature has lifted the fine for this kind of offence from 1,000 to 4,000 dollars leaving untouched the period of imprisonment."

8. Mr. Mullick, for the appellant, urged me not to have regard to the fixed penalty tickets, citing in support a judgment of Leonard J. in Sin Yiu-kong v. The Queen ^(1). Leonard J. thought it was danger-ous to take penalty tickets into account, because they represented a bargain between the motorist and the prosecuting authority, which left open the possibility that the offence might not have been committed.

9. A contrary view was taken by Macdougall J. in Ma Kin-man v.The Queen⁽²⁾.In his judgment it is only right that a magistrate should have the offender's whole history of misdemeanour before him when he passes sentence.

10. I am inclined respectfully to agree with Macdougall J. I think it would be unrealistic to deal with a motorist as though he had a clear driving record when, in fact, he had a string of fixed penalty tickets.

11. Having said that, I am of the view that the sentence in this case was too severe. No enquiry as to the appellant's means seems to have taken place. The fine represents a high proportion of the appellant's monthly earnings. Having regard to the maximum , fine of $4,000, it seems to me much too high. I therefore reduce it to $1,000.

12. Disqualification for 12 months is unusual in a case of careless driving. That should be reserved for really bad cases, in which the driver also has several previous convictions, or has shown that he is a danger to other road users. In the case of a professional driver, moreover, such a long time away from the wheel, is a very severe hardship. The difference in hard cash to the appellant amounts to some $18,000.

13. Nevertheless, I think a period of disqualification is warranted, having regard to the degree of carelessness shown by the appellant, plus the fact that this is his second conviction for this offence. I think a period of three months off the road will best meet the justice of the case and I reduce the disqualification period accordingly.

14. The order for retesting was mandatory under section 70, following the order for 12 months disqualification. I see no need for this order and I set it aside.

15. The order for costs will stand.

(1)    [1979] H.K.L.R. 294

(2)    (1985) Cr. App. No. 180