The Queen v. Lam Wai Tung

HCMA001315/1989

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

MAGISTRACY APPEAL NO. 1315 OF 1989

-------------

BETWEEN

---------------

Coram: Hon. Penlington, J.A. in Court (sitting as an additional High Court Judge)

Date of hearing: 15 December 1989

Date of delivery of judgment: 15 December 1989

----------------------

J U D G M E N T

----------------------

Penlington, J.A.:

1. These are appeals against convictions on two charges, one of reckless driving _and one of obstruction of a police officer executing his duty.

2. The charges arose in the course of incidents on the 26th July of this year when three police officers, two constables and an inspector, who were on duty in Tolo Highway, specifically to look out for road traffic offences. There was evidence by the three officers that a white BMW car went past them travelling, they said, at high speed. However only one witness, the inspector, was able to say that at the time the white BMW want past he saw its number. Each of them, however, gave evidence of following the car although it is quite clear that there were intervals of a few seconds when they lost sight of it.

3. The car, in addition to travelling at high speed, was weaving through the traffic, goods vehicles and a private car and it is this weaving which is relied on by the Crown to show reckless driving so as to satisfy, as is laid down in R. v. Lawrence [1981] R.T.R. 217, that the driving must be such that there was "an obvious serious risk of physical injury being done to other persons using the road or substantial damage to property'' and that the Defendant did so without having given any thought to the possibility of there being such a risk, or having recognised that there was some risk, had nevertheless gone on to take it. I do not think there is any doubt that the second category is satisfied so all we are concerned with is the first, there was an obvious, serious risk.

4. The other point, however, taken is whetner there was in fact sufficient evidence with the Magistrate to satisfy that the vehicle which was eventually stopped which was driven by the Appellant was in fact the same vehicle which had been seen' by the police officers being driven in the manner they described. I am quite satisfied that the Magistrate has fully considered the question of a mistaken identification of the vehicle. he has not specifically referred to the cases of R. v. Turhbull [1977] Q.B. 224 but I am satisfied that this was an unobstructed view - at 2:30 in the afternoon in good lighting conditions, by a trained police officer, that is the inspector, and there is no reason to doubt that his identification was correct. Though the vehicle did disappear from sight for a few seconds one or two times I do not think there is any reason to doubt that the vehicle stopped was in fact the vehicle which had been. noted.

5. So far as the reckless driving is concerned, while the Magistrate did acquit the Appellant on the charge of speeding he did so on the grounds that the police vehicle's speedometer was not properly calibrated and that the police officer did not give evidence as to their own experience in judging effectively the speed of vehicles. I think he took perhaps a benevolent view of the evidence in that respect. But I am satisfied that this was the type of driving, being a car being driven at a speed weaving its way throughout the traffic, which to an ordinary lay person observing that type of driving would have no doubt in saying that he considered that this was such as to pose a serious risk to other road users.

6. So far as the obstruction is concerned, being that the obstruction charge arises from the fact that when the vehicle was stopped the Appellant refused to produce his driver's licence; he produced his ID card but not his driver's licence. He could have been charged with that offence and it may well be that it is better that prosecutors charge the specific offence of simply failing to produce a driver's licence when requested to do so. However there is authority to say that refusal of this sort done deliberately and repeatedly does constitute obstruction. I am satisfied that the magistrate was justified in finding that he believed the police officers' evidence. The Appellant did not himself see fit to give evidence and I see no reason why I should substitute my own view for that of the Magistrate, even if I thought he might have been wrong. I have no reason to think so.

7. For these reasons I am satisfied that the convictions are perfectly safe and satisfactory, and the appeals are dismissed.

Representation:

G.C. Rhead, Counsel for Crown

Mr. Rimsky Yuen (So & Karbhari) for Applicant