THE QUEEN v. FUNG KA-FAI KEVIN

HCMA000852/1985

IN THE SUPREME COURT OF HONG KONG

Magistracy Appeal No. 852 of 1985

BETWEEN

THE QUEEN   and   FUNG KA-FAI KEVIN

Coram: Hon. Kempster, J.A. (sitting as an additional High Court Judge)

Date of Hearing: 11th October 1985

Date of Judgment: 11th October 1985

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JUDGMENT

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1. On 9th August of this year FUNG Ka-fai pleaded guilty to reckless driving, driving a vehicle without a valid licence, using an uninsured vehicle and using an unlicensed vehicle; the vehicle in question being a motor-bicycle. He was sentenced in relation to the reckless driving to six months imprisonment and was disqualified from driving any form of vehicle for two years. In relation to the other offences he was fined $750 in each instance; making a total of $2,250.

2. The circumstances of the offence were that at about 11 o'clock in the morning of 21st July a motor-cycle policeman, who was then on foot, observed the appellant driving a motor-cycle rather unsteadily in an easterly direction in Clear Water Bay. The officer signalled to the driver to stop but when the driver saw the officer he accelerated away and the police officer mounted his own motor-bicycle and gave chase. The explanation is reasonably apparent. The appellant had no licence to drive and the motor-bicycle was uninsured and unlicensed. A chase followed, with the police motor-cycle flashing its blue beacon and sounding its siren, which continued at a speed of some 50 to 60 miles an hour. The appellant managed to avoid an attempt by the police officer to intercept him, caused the police motor-cyclist to brake abruptly and nearly caused a collision between them. He drove through two sets of traffic lights and caused a third-party vehicle to brake hard to allow the appellant to pass through. As the Magistrate said in his Statement of Findings the appellant's driving was such as reasonably to have put other road users in fear.

       

3. Those facts are such as to warrant a sentence of imprisonment. They are explained, perhaps, by the fact that a young man has gone out on a jaunt quite unlawfully, is seen by the police and tries to avoid the consequences of his own folly. He was a young man of 24 years of age with a business of his own employing other people. So he gets a good mark for industry and it was his first offence. The sentence of six months, which is the only sentence appealed against, was on the higher side of the customary sentences in this class of case. The appellant served nearly one month's imprisonment before being granted bail for the purposes of this appeal.

       

                I think, in all the circumstances, justice can be done by allowing the appeal, reducing the sentence to one of four months imprisonment and suspending the balance of that sentence for a period of three years.

(M. Kempster) Justice of Appeal

Representation:

Miss C.N. Ong for appellant

Mr. Catney for D.P.P.