HKSAR v. Jim Chong Shing

CACC000186/2003

CACC 186/2003

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL APPEAL NO. 186 OF 2003

(On Appeal from DCCC 1265/2002)

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Coram: Hon Cheung JA, Beeson J and Lugar-Mawson J in Court

Date of Hearing: 3 October 2003

Date of Judgment: 3 October 2003

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J U D G M E N T

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Hon Lugar-Mawson J: (giving the judgment of the Court)

Appeal against conviction

Background

1.On 10 April 2003, the Applicant, Jim Chong Shing, was convicted after trial before Deputy Judge Andrew Ma in the District Court of one offence of dangerous driving, contrary to S. 37 of the Road Traffic Ordinance, Cap. 374 (Charge 1) and one offence of damaging property being reckless as to whether life would be endangered, contrary to S. 60(2) of the Crimes Ordinance, Cap. 200 (Charge 3). He was acquitted of Charge 2, which was another offence of damaging property being reckless as to whether life would be endangered. The Applicant was sentenced to 2 1/2 years' imprisonment on Charge 1 and 3 years' imprisonment on Charge 3 with 2 years of the sentence on Charge 3 being made concurrent with the sentence on Charge 1; making a total sentence of 3 1/2 years' imprisonment. The Judge also made a disqualification order for 4 years effective from 28 January 2004 in respect of Charge 1

2.The Applicant now applies for leave to appeal against his conviction and sentences. Mr K M Chong represents him; he was not his counsel at trial. Mr Kevin Zervos SC SADPP, Mr Edmond Lee SGC with him, appear for the prosecution.

The prosecution case

3.In the early hours of 21 September 2002, officers of the New Territories Traffic Branch conducted an anti-illegal road racing operation at Tuen Mun Road, New Territories. A roadblock was set up at Tuen Mun Road near the Tuen Mun town centre.

4.Shortly after 3 a.m., five private cars approached the roadblock at high speed. Two police vans were then driven to act as a backstop sealing off the southern end of the road. Upon seeing the roadblock, all the drivers of the cars made U-turns and travelled against the traffic flow at high speed towards the backstop. A white Subaru was the first vehicle to drive past the backstop, in doing so, it hit the offside front of one of the police vans, which in turn hit the other. The rear bumper and the rear number plate of the white Subaru fell off. A police sergeant who was on board one of the police vans sustained an injury to his shoulder when the van was pushed forward by the impact.

5.PC 48924 (PW5) who was one of the officers at the roadblock, and who saw the group of vehicles make the U-turns and travel towards the backstop, pursued them on his motorcycle. He also saw the white Subaru pass through the two police vans and damage them.

6.The white Subaru continued to travel against the on-coming traffic. When it got near to the junction of Tuen Hing Road and Tuen Mun Heung Sze Wui Road, it suddenly stopped. PW5 stopped his motorcycle alongside the driver's seat of the car. The driver's side window of the car was down and the driver, a man wearing a white T-shirt, turned his head to look at the officer. They looked at each other face-to-face for about 3 or 4 seconds at a distance of about one metre. PW5 recognised the driver as someone he knew from the media. He used the loudspeaker on his motorcycle to tell the driver using the name he knew him by - 'Jim Chong Shing' - to turn off the car's engine. On hearing this, the driver suddenly reversed his vehicle into another road. PW5 continued to chase after the white Subaru but failed to catch up with it and eventually he lost sight of the car. This chase lasted for more than 10 minutes and PW5 kept the white Subaru within his sight at a distance of 10 to 20 metres. During the chase the driver of the white Subaru committed a number of traffic offences, including overtaking a taxi by crossing double white lines.

7.About two weeks after the incident, PW5 attended an identification parade where he positively identified the Applicant as the driver of the white Subaru.

The defence case

8.The defence case was that the Applicant was not the driver of the white Subaru. It was his evidence that he was at home from late evening on 20 September until 1 p.m. on 21 September 2002. He denied being the driver of the white Subaru and claimed that he had been misidentified.

The appeal against conviction

9.The appeal against conviction falls into three main areas. Firstly, there are contentions that there were procedural irregularities at trial, namely, that the prosecution was allowed to adduce evidence of the Applicant's 'bad character', which was said to be irrelevant and prejudicial to the Applicant and also that the Judge erred in not directing himself that the evidence of the Applicant's 'bad character' if admissible could only be confined to credibility.

10.The Applicant accepts through his counsel that he is a public figure. He has driven in the Macau Grand Prix. He has appeared as a stunt man in a movie and in a VCD. Apparently his photograph and articles about him have appeared in the media. In that respect he has acquired - just as much as film stars do - a public persona; members of the public, including police officers, are more likely to recognize him than they are to recognize the man who lives a life of complete anonymity.

11.The fact that prosecuting counsel adduced evidence and cross-examined the Applicant on his public profile in Hong Kong did not amount to revealing his 'bad character'. What prosecuting counsel sought to do was to establish the fact that, by courting publicity in the past, the Applicant was more readily recognizable by people whom he did not know and who did not know him personally.

12.Prosecuting counsel did not attempt to establish in his examination-in-chief of PW5 that the Applicant was on a police 'watch list', as is alleged in the grounds of appeal. The question asked of PW5 was if, as a traffic police officer, he was under a duty to become acquainted with, or to be able to recognize, people involved in car racing. Nothing was said about the police having a 'watch list' of such persons, or indeed of the car racing being illegal. In any event the Applicant's counsel objected to the question and when prosecuting counsel rephrased it, PW5 said that he didn't understand it and prosecuting counsel, in clear terms, chose not to pursue it.

13.Neither did prosecuting counsel suggest to the Applicant that, by reason of his driving skills, he was more likely than not to be the driver of the white Subaru, as is alleged in the grounds of appeal. The suggestion, put in cross-examination, was that, as the Applicant was a very competent and highly skilled driver - who was good enough to compete as a racing car driver at Macau - it would be easy for a man of his driving skills to evade a policeman on a motorcycle. The Applicant, with false modesty, replied that he had no skills.

14.Although it is true that in the summary of facts it is stated that PW5 recognized the Applicant to be "...an infamous street car racer nicknamed "Mang Hang" ", the summary of facts were not evidence at trial. This court takes it that a professional judge sitting alone will not be influenced by what appears in a summary of facts when determining the factual issues raised at trial.

15.Finally on this ground, the Judge did not use the evidence on this matter as evidence of the Applicant's bad character as is contended on the Applicant's behalf. The only use that he made of it was in assessing the correctness of PW5's identification of the Applicant as the driver of the white Subaru.

Identification evidence

16.Secondly, there are grounds of appeal relating to the identification evidence. It is contended that the Judge erred, or misdirected himself, when considering PW5's identification evidence.

17.At trial, the Applicant's counsel repeatedly put to PW5 that it was possible for him to have made a genuine mistake in his identification of the Applicant on 21 September 2002 and PW5 repeatedly denied this suggestion, as may be seen from the perusal of pages 81S - 83B of the transcript.

18.In evaluating the evidence the Judge carefully considered all the circumstances under which PW5 had made his identification on the day in question; including the length of time the confrontation took, the distance and the lighting conditions, as well as the fact that PW5 had seen the Applicant's photograph before in the media and was able to recognize him by his given name and his nickname. The Judge warned himself in clear terms of the danger of a person making a genuine mistake. After considering these matters the Judge, rightly, concluded that this was a case involving more than a mere identification and that the circumstances provided good conditions for PW5 to observe and recognize the Applicant.

19.Mr Chong contends, in advancing this ground of appeal, that the behaviour of the driver of the white Subaru - stopping the car unnecessarily and eyeballing PW5 face-to-face - was against sense and logic. It may well be, but this matter was fully canvassed by the Judge who found as a fact that it happened.

20.We accept that it is unclear from the evidence whether PW5 dismounted from his motorcycle before he identified the driver of the white Subaru. But that is an irrelevant matter. At the material time, PW5 had already stopped alongside the driver's side of the car. Both vehicles, the car and the motorcycle, had already come to a halt. There was sufficient street lighting to permit identification. The driver's side window was wound down and PW5 was able to see the driver face-to-face at a distance of about 1 metre for 3 or 4 seconds. Moreover, he could recognize him and knew his given name and nickname. This court has said time and time again that the resolution of facts is for the trial court and we will not retry cases on the papers, or lightly interfere with findings of fact.

Evidence supporting the identification evidence

21.Mr Chong further contends that the Judge erred in making use of a computer record from the police console, on which an entry about the incident on 21 September appears, as supportive, or corroborative, evidence of PW5's identification.

22.The evidence shows that PW5 reported the incident and the Applicant's given name and nickname to the police console during his pursuit of the white Subaru. This was sometime between 3 to 4 a.m. However, the computer record prepared by the police console speaks of a message being entered at 2.10 p.m., which was about 11 hours after the incident, recording that: "PC 48924 (PW5) identified that D2 (the driver) was M/Tsim Cheong Shing (romanized thus)(nickname Man Hang)". This was the subject of cross-examination by the defence at trial and as a result an officer from the police console was called to explain the matter. She said that the information was not recorded simultaneously and that she only keyed in the message when she received a fax about the incident from the Traffic Accident Investigation Unit at 2.10 pm.

23.Mr Chong accepts that at law identification evidence does not require corroboration.

24.We do not agree that the Judge treated the entry on the computer record as corroborative, or supportive, evidence of the correctness of PW5's identification. What the deputy judge said was this:

"Not only that this record does not cast any doubt on the evidence of PW5, it also supports the identification to the extent that the name of the driver has been identified through PW5 and contained in the police computer record on the same day when the incident occurred"

And later on in his reasons, the Judge made it clear that:

"When approaching the identification evidence in this case, I also bear in mind that there is no other evidence to support the evidence of PW5 and that the Defendant has put up an alibi"

Decision

25.We are satisfied that the Applicant's convictions are neither unsafe nor unsatisfactory and his application for leave to appeal against conviction is refused.

Appeal against sentence

26.We turn now to the appeal against sentence.

Discussion

27.There is no doubt that this was an appalling case of dangerous driving. In sentencing the Applicant, the Judge considered all the relevant circumstances, including the disobeying of the police's commands to stop, the driving at a high speed against the flow of on-coming traffic, the speeding at up to 80 k.p.h. in excess of the speed limit for a period of 10 minutes and the overtaking a vehicle by crossing double white lines.

28.The Judge was aware of the Applicant's previous convictions. There are many, and in particular, they contain 2 charges of dangerous driving in 1979, 1 charge of dangerous driving in 1981, 1 charge of reckless driving in 1988, motor racing and reckless driving in 1994, speeding and dangerous driving in 2003.

29.The Judge did not equate this case with Secretary for Justice v Ko Wai-kit [2001] 3 HKLRD 751 in which, for a similar series of offences, a starting point of 3 years' imprisonment was taken. The Applicant in that case had committed his offences at a busy time of day - 5.30 p.m. and had damaged a number of other vehicles and caused injuries to a number of people. In this case the offences were committed at night when the roads were not busy and the damage was limited to 2 police vehicles. However, the potential for damage on a scale approaching that in Ko Wai Kit was there and the Applicant demonstrated exactly the same disregard for the safety of other road users and the sanctity of other peoples' property as the offender in Ko Wai Kit did. The Judge adequately reflected the factual difference between the two cases by taking a lower starting point of 2 1/2 years' imprisonment for the dangerous driving offence.

30.The Judge was correct to treat the offences of dangerous driving and criminal damage as two separate matters. The criminal damage charges dealt with the deliberate attack on the police vans in forcing a way through them. The dangerous driving charge dealt with the atrocious driving incidents, including the U-turn; the driving against the flow of on-coming traffic, causing other drivers to swerve to avoid collision; speeding to avoid apprehension by the police; overtaking another vehicle by crossing double white lines and so on.

31.We are satisfied that the Judge took proper account of the totality principle in adjusting the sentences by ordering that 2 years of the sentence on the criminal damage charge run concurrently with the sentence on the dangerous driving charge, making a total sentence of 3 1/2 years' imprisonment.

Decision

32.We are satisfied that the Applicant's sentences are neither wrong in principle nor are they manifestly excessive, his application for leave to appeal against his sentence is refused.

Representation:

Mr Kevin Zervos SC SADPP & Mr Edmond Lee SGC, Department of Justice, for the HKSAR.

Mr K M Chong, instructed by Messrs K M Lai & Li, for the Applicant