HKSAR v. Chiu Tak Saint James

HCMA001086/1998

HCMA1086/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.1086 OF 1998

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Coram : Hon Gall, J. in Court

Date of hearing : 10 June 1999

Date of judgment : 10 June 1999

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J U D G M E N T

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1. The appellant was convicted of reckless driving after trial on 12th October 1998. The trial took a somewhat curious course in that no evidence was led orally by the prosecution and it was agreed, pursuant to s.65C of the Criminal Procedure Ordinance, that the Brief Facts that had been prepared for the case would be the whole of the evidence for the prosecution.

2. In brief, the evidence was that on 21st July 1998 police officers conducted an operation against motorists in the Kwun Tong Bypass area. They set up equipment which would measure the speed of vehicles and would also measure the distance between those vehicles. At about 6:18 p.m. on that day, two cars were observed travelling close together, one driven by an unknown motorist and the second or following car driven by the appellant. The speed of the first vehicle was detected at 104 km/h which was 24 km/h over the speed limit, which was 80 km/h at that point. The vehicle driven by the appellant was timed at 103 km/h and was found to be a distance of 20.5 m from the vehicle in front. That distance was measured not from the rear of the front vehicle to the front of the rear vehicle, but was measured from the front of each vehicle, and therefore the distance includes the length of the vehicle in front. The actual vacant space between the two vehicles, therefore, being in the vicinity of 16 m. It was agreed in the Brief Facts by the appellant that the safe distance between two vehicles at a speed of 103 km/h should have been 57.22 m. He therefore binds himself to that position as a matter of truth by the legislation.

3. The learned Magistrate, in considering this matter, very properly warned himself of the test to be applied which is set out in R. v. Lawrence [1981] 1 All ER 974 where Lord Diplock said at p.982 :

"In my view, an appropriate instruction to the jury on what is meant by driving recklessly would be that they must be satisfied of two things : first, that the defendant was in fact 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 or of doing substantial damage to property; and, second, 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 recognised that there was some risk involved, had none the less gone on to take it."

The first matter which the learned Magistrate had to consider was whether or not there was an obvious and serious risk in the manner of driving of the appellant. He commented also at p.982 of Lawrence :

"It is for the jury to decide whether the risk created by the manner in which the vehicle was being driven was both obvious and serious and, in deciding this, they may apply the standard of the ordinary prudent motorist as represented by themselves."

Clearly, therefore, the decision as to whether or not there was an obvious and serious risk of causing physical injury to some person or doing substantial damage was a question of fact to be decided by the Magistrate in that capacity.

4. Mr Lam, in his address to me, referred me to the case of Brown and Lynn v. Western SMT Co. Ltd. [1945] SC 31 where Cooper LJ said :

"We were urged in the course of debate to substitute our own definition of the limits of a following driver's duty and even to prescribe the proper interval at which successive vehicles should keep station when travelling in a city street. I am not prepared to do so. The distance which should separate two vehicles travelling one behind the other must depend upon many variable factors - their speed, the nature of the locality, the other traffic present or to be expected, the opportunity available to the following driver of commanding a view ahead of the leading vehicle, the distance within which the following vehicle can be pulled up and many other things."

That argument, however, loses any force that it might have had because in his agreement as to the facts of this case, the appellant has agreed that the distance at which he should have been travelling at that speed, and at that time, was 57.22 m. Any consideration, therefore, as to external factors which might have affected the proper distance that he should have kept were removed by the agreement reached between the prosecution and the defence and placed before the Magistrate. The Magistrate therefore quite properly considered that the distance actually driven by the appellant when compared to the distance which he agreed, as a matter of truth, should have been the distance he maintained, when added to the speed which he was travelling over and above the permitted speed for that area created by his matter of driving an obvious and serious risk of causing physical injury to some other person who might have been using that road or doing substantial damage to property. His hands having been tied by that agreement, I am unable to say that it is for me to disturb the finding of fact which the Magistrate was, in the circumstances, entitled to make.

5. Therefore, in respect of grounds 1 and 2, there was sufficient evidence for the learned Magistrate to find that there was the obvious and serious risk.

6. Ground 3, which concerns the reliance by the Magistrate on the two-second rule in the Road User's Code falls away in the face of the agreement by the appellant as to the distance that he should have travelled. Ground 4 also falls away for the same reason. As does Ground 5 which relates to the judicial notice taken by the Magistrate. All these factors go to the distance at which the appellant should have been travelling from the vehicle in front and that was agreed by him at 57.22 m.

7. It may be that the appellant before the learned Magistrate acknowledged that he had driven carelessly that was prepared to enter a plea, the Magistrate was entitled, on the facts as they were presented to him, to come to the decision that the manner of driving of the appellant was reckless.

8. I do not suggest that this case should be taken as a precedent for the fact that in all circumstances a distance such as the distance between the appellant and the car in front should always necessarily give rise to a conviction for recklessness. In the peculiar circumstances of the admission by the appellant which bound the Magistrate and limited the basis upon which he could make his findings of fact, made this case one which is not useful, in my view, to general prosecutions for the same offence in similar circumstances. The appeal is dismissed.

Representation:

Mr Albert Wong, S.G.C., for HKSAR

Mr Osmond Lam, inst'd by M/s Andrew Chan & Co., for the Appellant