29 January 2024
Review of video footage in driving cases before passing any sentence
Chester Fung, led by Mr. Tony Li SC, appeared for the successful appellant in HKSAR v Fung Chi Kwong Owen [2024] HKCFI 314 for a magistracy appeal against sentence.
The Appellant was charged with: (i) Dangerous Driving; (ii) Failure to provide specimens of breath for screening breath test; and (iii) Failure to provide specimens of oral fluid to carry out Rapid Oral Fluid Test. Amongst other things, he was sentenced by the Magistrate for 4 months and 4 weeks imprisonment in total.
A video footage taken from the dash camera of the Appellant’s vehicle was available in the exhibits. However, the Magistrate simply relied on the description of the brief facts when passing the sentence and the video footage was not played at any point during the hearing. In hearing the appeal, DHCJ D. Yau compared the video footage and found that the descriptions contained in the brief facts were inaccurate. Such discrepancy may have an impact on the mind of the sentencing Magistrate. His Lordship emphasised that whenever video footage is available, the Magistrate should play the footage in the first-available opportunity in order to have a comprehensive understanding of the facts. He also finds that the sentence passed by the Magistrate might be heavy but not manifestly excessive. After considering all the factors, he allowed the appeal against sentence, and ordered the sentence be suspended for 15 months.
Link to Judgment: https://legalref.judiciary.hk/lrs/common/ju/ju_frame.jsp?DIS=157782&currpage=T
成員檔案：馮展翹大律師