The Attorney General v. Tam Chi-man and Others

CAAR000019/1980

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Coram: McMullin, V.P., Li, J.A. & O'Connor, J.

Date of Judgment: 18th February, 1981.

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JUDGMENT

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McMullin, V.P.

1. This is an application for review at the instance of the Attorney General.

2. The four respondents upon this review pleaded guilty before a magistrate to charges of illegal racing contrary to section 21 of the Road Traffic Ordinance and Dangerous Driving contrary to section 11 of the same Ordinance. Fines of $50 were imposed on each of them in respect of the racing and of $500 in respect of the dangerous driving.

3. On the hearing of the review two of these young men suggested that they had not intended to plead guilty. We have however satisfied ourselves from the record of the lower court proceedings that the pleas were entered in full understanding of the nature of the case and that the facts constituting the Crown's case were read in court to the defendants and that all of them pleaded guilty on an understanding of these facts.

4. The circumstances were that on the 1st of November 1980 at about half past twelve midnight a uniformed constable with a plain clothes pillion rider at Second Street in Western District saw a group of about 10 meter cyclists. It was evident that the police had information regarding this matter and that a trap had been set. Many of these motor cyclists, the present four respondents, prosseded to race upon their machines along Caine Road and Queenway and Gloucester Road and eventually they ascended Tai Hang Road followed by the police officer who had seen them in the first instance and who was also riding a motor bike. During this race, and it was clear that it was a race, they were observed to cross white lines, to weave in and out of whatever traffic was then travelling upon the road and to accelerate throughout the course of the race from speeds which were in a region of 60 m.p.h. in Caine Road and exceeding 90 m.p.h. towards the concluding portion of the course. They were also seen to be overtaking each other during the same course. It is clear therefore that this was a premeditated race arranged amongst these young men.

5. The magistrate imposed fines of $500 in respect of the dangerous driving and $50 fines in respect of the illegal racing charges and he imposed periods of disqualification upon each of the respondents of one year and limited to motor cycles only.

6. It is said by Mr. Alderdice who appears on behalf of the Attorney General that these sentences were manifestly inadequate and wrong in principle. He has referred us to a number of decisions in the English courts. These are of assistance to some extent although most of the cases to which he referred us deal with the specific offence of reckless driving causing death and it must be said that in any offence involving dangerous or reckless driving which does result in death the fact that death has occurred is obviously an aggravating factor. The cases however are of assistance in that a distinction has been drawn between momentary inattention which is of a dangerous or reckless character and such cases as those in which a reckless and selfish disregard for the safety of other road users has been manifested. Under the English section it would appear that originally the principle was that in cases of dangerous driving causing death the courts would not find it necessary to impose sentences of imprisonment unless there were aggravating factors such as the taking of the daliberate risk and from Reg. v. Dutton⁽¹⁾ onwards through Reg. v. Guilfovle⁽²⁾, and the other cases to which Mr. Alderdica has referred us, it may be discerned that the courts in England regard racing upon the roads as an aggravating form of that kind of disregard for other road users which falls into the second and more serious category of cases under the English decisions. Although no question of death is involved in the present case Mr. Alderdice asks us to say but this distinction is of value here and that in any case in Hong Kong in which it is plain that the public highway is used for the purpose of carrying out a premeditated race along a defined course and where that is capable of endangering the safety or lives of other persons a custodial sentence should normally be considered. The magistrate had regard to certain mitigating factors such as the fact that three of these young men had disposed of their motor cycles shortly after the offences but we do not think that that is a matter which necessarily discloses more than a due regard for the fact that they might later have to confront a court and possible penalties and it is not necessarily a sign of remorse. Indeed remorse is absent in the present case in the case of at least two of these respondents by reason of what has been said already in respect of the pleas.

7. Three of them have clear records and were in regular employment. Two of them say that they have lost their employment as a result of this case and one has been moved to a different position.

8. The 1st respondent is 19 years of age as is the 2nd respondent. The 3rd and 4th respondents are each 20 years of age.

9. We are satisfied that these sentences were in the circumstances disclosed manifestly inadequate and wrong in principle. It cannot be stressed too strongly that persons who makes use of a public highway for the purpose of racing, as these young man did, and in doing so drive at very great speed using the intervening traffic as a kind of obstacle course to demonstrate their skill and nerve have engaged in conduct of a kind which merits the strongest condemnation in respect of which custodial sentences will generally be satisfied, all other factors in the individual case being taken into account. We are however dealing here with a case taken upon review. Mr. Alderdice has suggested that in cases taken upon review. Mr. Alderdice has suggested that in cases of this kind detention centre treatment would be peculiarly appropriate. In many instances that may well be true. We have here however young men, three of whom so far as we are aware, are of good character and unblemished records. TAM Chi-man, the first respondent has a previous conviction under the Road Traffic Ordinance and was at the date of the present offences disqualified from driving. As a result he faced two additional charges under the Ordinance in the present case to which he pleaded guilty. We are not concerned with those charges on this review and we do not think it necessary to distinguish between his case and that of the other respondents in dealing with the sentences imposed for the offences with which we are concerned.

10. Upon review the court, although revising sentence, will not normally impose precisely the sentence which it is thought might have been appropriate at first instance. We therefore leave the fines imposed untouched but in respect of each offence we impose in addition concurrent sentences of two months' imprisonment on each of the respondents, these sentences to be suspended for one year.

Representation:

G. Alderdice for the Attorney General, the appellant.

Respondents in person.

(1) (1972) R.T.R. 186.

(2) (1973) R.T.R. 272.