THE QUEEN v. TAM TAT-CHEE

CACC000806/1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 806 of 1983

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Between

	The Queen	Respondent
	and
	TAM Tat-chee _______________	Appellant

Coram: Hon, Penlington, J. in Court

Date: 20th July, 1983

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JUDGMENT

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1. The magistrate in this case has come to certain conclusions of fact from the evidence and having read that evidence I am quite satisfied that he was perfectly entitled to come to those conclusions and indeed, quite properly, Counsel for the appellant does not seek to attack those findings. He does, however, say that those findings do not justify the next step which the magistrate took, that was that those findings supported a conviction for dangerous driving. The appellant submits that they only support a conviction for the lesser offence of careless driving.

2. This was a tragic accident in which three people were killed. Nevertheless, while the result is of obviously of important I think I should look at the fact of the case to see whether there was a degree of recklessness, the deliberate taking of a risk which I think is necessary to justify dangerous driving or whether notwithstanding those tragic consequences this was simply an instance of lack of judgment, momentary carelessness, that would only justify a conviction under Section 14.

3. There was according to the tyre marks shown on the plan a sudden move by the appellant across the outer east bound lane over the central island and into the west bound lane. Appellant said that this was due to the fact that his taxi was struck by the bus coming behind him. That was not accepted by the magistrate and I think quite rightly. The tyre marks and the damage to the bus did not support that evidence. It seems to me that there is in fact no clear evidence as to why the appellant did cross the outer lane, right across the centre island and into the west bound lane. Nevertheless, I am satisfied that he did so and satisfied that primary cause of the collision was that he was endeavouring to get out of the inner lane, which I have no doubt was moving slowly, into the outer lane, that there was not sufficient room for him to do so and as a result of that he crossed the centre island into the west bound lane. There he strucks the Public Light Bus head on. That in itself I think must show more than a degree of carelessness but the deliberate taking of a risk.

4. Mr. Remedios said if the manoeuvre had been completed successfully all would have been well and the bus driver agrees with that. If there had been room for him to get into the other lane then he would not have gone it across and the accident would not have occurred. I am satisfied there was not sufficient room. He had to make a violent manoeuvre in order to get across. He somehow lost control of the taxi because of that and went right across to the other lane. There was heavy traffic at the time and it was moving at a speed while not extremely high was in relation to the density of the traffic not inconsiderable. It was in the vicinity of 40 miles an hour.

5. I am satisfied that this was a manoeuvre which was within the definition of dangerous driving in Section 11(2) even ignoring for the moment that in fact three persons died as result. I think Mr. Dale for the Crown is right that the magistrate having come to the findings of fact that he did the conviction of dangerous driving was inevitable. I am satisfied on the magistrate's findings that the facts did justify a conviction for dangerous driving and the appeal must be dismissed.

(R.G. Penlington) Judge of the High Court

Representation:

P.J. Dale, Counsel for Crown.

Leo Remedios (Hastings & Co.) for the Appellant.