R. v. Chow Tak Kee

HCMA001094/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1094 of 1996

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Coram: Hon Gall J. in Court

Date of hearing: 25 February 1997

Date of judgment: 25 February 1997

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J U D G M E N T

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1. The appellant was convicted on 13th August 1996 of one charge of careless driving. The facts were that on 18th January 1996 at about 0045 hours early in the morning. The police had set up a road block on Shatin Road. That road block occupied the three lanes of the north bound highway and the left two lanes had been blocked off by the use of traffic cones. The road block was some 200 metres from the first stop sign where two police officers were standing. In the distance of 200 metres there was firstly a sign saying "police road block", then some distance after that, a sign saying "police slow", then a second sign a further distance on saying "police road block", then second sign saying "police slow" and then finally at the point where the two officers were standing, a "stop" sign in the regulation shape and size as prescribed by the Road Traffic Ordinance. At the point where the officers were standing was a police vehicle, along the side of which was a reflective banner indicating that there was a road block. The cones had reflective material on them and the officers were wearing reflective vests.

2. It is common ground that the appellant was driving a motor vehicle toward the road block along Shatin Road when he passed through an operating radar unit. The appellant in his evidence said that at that point he was aware that he had been photographed by the radar no doubt from the flash which goes off in those circumstances. He said that he slowed and there is no contradiction that he did reduce his speed.

3. The evidence for the prosecution was however, that he passed along the 200 metres of the road block and at the time he reached the stop sign, he either did not or could not stop. The stop sign being in the normal regulation form as prescribed by the Road Traffic Ordinance is a sign at which any motorist is required mandatory to halt his vehicle.

4. The police officers were standing in the lance ready to receive vehicles which stopped at the stop sign to take their particulars. One of the officers had to step back as the car passed through the gap between the stop sign and the dividing barrier and the other leaped out the way.

5. The estimate of PW1 of the distance between his colleague and the vehicle when his colleague jumped out of the way was about 1m., varying estimate of the speed of the vehicle, but at that point it is probable that the speed was about 20 k.p.h. The situation was the appellant passed through a mandatory stop sign, through a gap blocked by two police officers in reflective vests and uniform, causing one to step back and the other to leap for safety. The learned magistrate accepted that evidence and on the basis of it found that the appellant was guilty of reckless driving.

6. Mr Necholas argued that the learned magistrate did not probably direct herself as to the test that she should apply as laid down in R. v. Lawrence [1982] AC 510. The first limb of that test is whether the appellant was driving the vehicle in such a manner as to create an obvious and serious risk of causing physical injury to some other person who might happen to be using the road. I would have thought that on the facts found by the magistrate, it is beyond doubt that to drive through a gap between a mandatory stop sign and the central divider of a road at a speed of about 20 k.p.h. causing a person in that gap clearly visible to leap to safety is driving in a manner which would create an obvious and serious risk of causing physical injury. Had the officer not, from the evidence, leaped out of the way, he would have been physically injured.

7. The second limb is that in driving in that manner the defendant did so without having given any thought to the possibility of there being any such risk or having recognized that there were some risk involved had nonetheless gone on to take it.

8. On the appellant's own admission, he knew that he had been detected by a radar unit. On his evidence, he said he was looking for a road block. He had 200 m in which to stop at the mandatory stop sign. He could not have avoided seeing the road block nor the police officers. It is obvious on the evidence that he either gave no thought to the possibility of there being a risk or, as is more likely, recognized there was some risk involved but went on to take it.

9. Had the magistrate set out the test in R.v. Lawrence, then I accept from the evidence of which she was sure that she would have found the test satisfied as to both limbs. As has been said time and time again by these courts, it is not necessary for an appellate magistrate to set out every piece of law which she considers nor to show how she applied that law. It is obvious in this case that the magistrate had the proper test in mind and that she applied it.

10. I am satisfied that, the facts as found by the magistrate was sufficient to make out the offence and that she applied the proper test. The appeal against conviction is dismissed.

Representation:

Mr D. Saw, SACP, for Crown

Mr J. Necholas, inst'd by M/s Bough & Co., for Appellant