FUNG HING-KIN v. THE QUEEN

CACC000070/1974

 

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

 

CRIMINAL APPEAL NO. 70 OF 1974

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BETWEEN
	FUNG Hing-kin	Appellant
	and
	THE QUEEN	Respondent

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Coram: Trainor, J. in Court.

Date of Judgment: 8th March, 1974.

 

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JUDGMENT

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1. This is an appeal by one Fung Hing-kin who, on the 30th of November last was convicted in the magistrate's court for the offences of dangerous driving and disobeying a traffic hand signal. For these offences he was fined $300 and $150 respectively; and in addition he was disqualified from driving for 12 months. He has appealed against both convictions and penalty.

2. The grounds of appeal, so far as the appeal against conviction is concerned, were:

	(1)	that the convictions were against the weight of the evidence; and
	(2)	there was no evidence or no sufficient evidence whereon to found the said convictions.

A third ground of appeal that the appellant was prejudiced by his inability properly to understand punti, he being from an area of China where the language is Chiuchow, was abandoned.

3. I don't think there is any reason why I should go into the grounds of appeal to any great extent. The learned magistrate concluded, and expressed his conclusion that he was satisfied that the evidence of the police inspector who prosecuted the case was true. He found that the appellant had driven off in such a way as to force the witness to take evasive action to avoid being knocked down; and that at a speed of 20 m.p.h. he drove across a stud crossing on which there were a number of pedestrians. On these facts he concluded that the appellant was driving dangerously and from the evidence of the inspector he concluded, it is quite obvious from his finding that the appellant must have seen the inspector standing in front of him in a uniform and wearing a white cap.

4. I cannot substitute any opinion that I might form on the evidence for the conclusion of fact arrived at by the learned magistrate and in fact I do not feel an inclination to do so. From the evidence which was given to the court below the learned magistrate was perfectly entitled to come to the conclusion that he did and accordingly I dismiss the appeal against convictions.

5. So far as the appeal against penalty is concerned it does appear, as Miss Kelly has pointed out, that no opportunity was given to the appellant to plead in mitigation. This was a matter of very considerable importance to the appellant. He is I understand a professional driver and heavy though the two penalties might be, that is two fines, that lack of disqualification is indeed very severe. It is a penalty that affects his livelihood. For this offence his disqualification is not a compulsory penalty whereas endorsement is.

6. So far as the appeal against penalty is concerned, I allow the appeal to the extent that I remove the disqualification and direct that the appellant's licence be endorsed.

 

 

(J.P. Trainor, J.)

 

Representation:

Miss Kelly (David Burgin & Co.) for appellant.

Mr. Locus for Crown.