THE QUEEN v. LEUNG WING-YUEN

CACC000305/1984

IN THE HIGH COURT	Criminal Appeal
	No. 305 of 1984

BETWEEN
	THE QUEEN
	and
	LEUNG Wing-yuen	(Appellant)

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Coram: Fuad, J.A. (Sitting as an additional Judge of the High Court)

Date of hearing: 20th June 1984

Date of judgement: 20th June 1984

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JUDGMENT

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Fuad, J.A. :

1. The appellant pleaded guilty on the 7th May 1984 to an offence of driving an overloaded goods vehicle, contrary to ss. 96(1) and 169(1) of the Road Traffic (Construction and Use) Regulations. He was sentenced to 7 days' imprisonment "without the option" and now appeals.

2. The permitted weight of the vehicle he was driving for his master was 3.2 tons and the laden weight when he was stopped was found to be 6.46 tons overweight. In mitigation, the appellant who is 23 years of age, told the magistrate that he earned $1,800 a month. He said that he was not present when the vehicle had been loaded, and that he had not been aware of the weight.

3. These were the reasons given by the magistrate for the sentence he imposed -

"

I considered this to be a bad case of its type. I noted that the load had been more than three times its permitted maximum. Police Officers were attracted to the vehicle by its slow speed due to the weight of its load. Although the Appellant may not have known its exact weight he could not have failed to have appreciated the fact that the vehicle was overloaded. Anyone with a modicum of common sense would have realised the likely effect of such a load on the lorry's braking and steering systems. Within the last 12 months or so a lorry's brakes failed due to the excessive weight of its load and caused the death of four persons. This case was widely publicised.

The maximum penalty for a first offence of overloading tried summarily is a fine of $500 and imprisonment for 3 months. I considered that the inclusion of a period of imprisonment in the penalty was to provide for a case where the overloading was of a particularly high degree such as in the present case. I decided that notwithstanding the defendant's clear record, he was deserving of a short and immediate custodial sentence in view of the extreme danger to which he had subjected the public by driving a vehicle which was so excessively overweight. I sentenced him accordingly."

4. Although this was a very serious case, indeed, of overloading, a custodial sentence, however short, was not justified for a young first offender who had pleaded guilty, and who was not the owner of the vehicle. In my judgement the sentence was clearly wrong in principle.

5. The learned magistrate released the appellant on bail pending appeal on the 10th of May and so he had spent four days in prison. This fact must, of course, be taken into account when deciding the appropriate sentence. I allow the appeal, set aside the sentence of imprisonment, and impose in its place a fine of $100 (which, of course, would have been much more had the appellant not gone to prison).

	(K.T. Fuad)
	Justice of Appeal

Representation: