The Queen v. Chan Chung Ho and Another

HCMA001082/1986

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL No. 1082 OF 1986

________________

BETWEEN

_________________

Coram: The Honourable Mr. Justice Nazareth in Court

Date of hearing: 30th October, 1986

Date of delivery of judgment: 18th November, 1986

__________

JUDGMENT

__________

1. The Appellants were convicted of reckless driving by the Magistrate's Court at Fan Ling on the 16th October 1986 and sentenced to fines of $1,000 each and also to disqualification for twelve months. They now appeal against both conviction and sentence.

2. The entire case against them rests upon the evidence of a police constable who was on motor-cycle patrol. The material part of his evidence is quite short and was recorded in the following terms:-

"On 17.8.86 at 1255 I was on motor cycle patrol. I was on AM 8746. I patrolled on Tolo Highway - Kowloon bound carriageway - abreast of Island House. I saw two goods vehicles. I was on the slip road and they were ahead of me on the Highway on my right hand side. The speed limit is 80 kilometers per hour. I saw that there were Chinese character namely 'Leung Yik Doves' on side of both vehicles. They were travelling at very high speed. They were in same lane and the front of one was very close to rear of the other. There are 3 lanes at that point. They were in the fast lane. I chased them for about 3/4 of a kilometer. Then I was able to maintain a distance from them. I was 60-70 meters behind. I noticed my speedo read 110 kilo-meters. I saw that both vehicles were overtaking other traffic by passing on the nearside. From time to time they cut back into the fast lane. Apart from that the two vehicles swopped positions by overtaking each other.  On occasion they both moved from fast to slow lane and back again to fast lane. Throughout these manoeuvres they never used trafficators. It was a Sunday. Traffic was medium: not heavy. In view of the overtaking many vehicles had to apply brakes to avoid collision with them. This was because they made use of narrow gaps between vehicles. I followed them for 4-5 kilometers. Their overtaking and speeding continued throughout the 4-5 kilometers. At Ma Liu Shui outside Viamini Site I indicated to them to stop. Eventually they stopped at bottom of flyover at Ma Liu Shui. Before intercepting them I locked the speedo needle at 110 kilometers per hour. When I stopped the vehicles one was DE 6909 and other CZ 7561.............

Cross-examination:

Only slight bends in the road. Sometimes other vehicles in fast, centre and slow lane so they, the Defendants, had to pull through other gaps. Distance between two vehicles when I first saw them was about 10 meters (e.g. from Defence Solicitor to opposite wall). I cannot be certain how many times vehicles were overtaken but many times. They overtook one another, I did not count how many times. It was very dangerous. They did so quite frequently. When I set out to chase them I was of opinion they were travelling at excessive speed. I did not stop them earlier because I feared that the evidence was not enough after following only short distance. I watched them for some time before stopping them. I am not clear how many minutes it took. I did not sound my siren while I was chasing them. When I signalled Defendants to 'stop', there was one in slow lane and one in centre lane ..........

Traffic that day was medium. Some vehicles were well spaced out ............. "

3. The Defendants denied that they were driving above 80 km per hour or in the manner alleged by the constable. They claimed their driving was that of normal prudent drivers. The Magistrate did not accept that. He found the constable to be a credible witness and accepted his evidence. He convicted both Appellants and sentenced each to a fine of $1,000 and disqualification for 12 months. They now appeal against both conviction and sentence.

4. In presenting the first ground of the appeal against con-viction, Mr. Polson for the Appellants criticizes the learned Magistrate's acceptance of the police evidence and his findings in a number of respects, mostly very minor respects concerned essentially with the credibility of that evidence. I will say at once that I find no merit in the criticisms and will mention only one since it loomed so large in the submissions generally. He complained that it is unclear from the evidence when the police constable "locked" his speedometer at 110 km per hour and that this could and probably was done when the con-stable was accelerating to overtake and stop the Appellants. It is not clear from the record whether this was put to the learned trial Magistrate by the solicitor who appeared for the Appellants, or indeed whether it was considered by the Magistrate. But like the other criticisms made by Mr. Polson, it is resolved by the answer to the basic question of whether or not the learned Magistrate can be faulted in his acceptance of the police constable's evidence. No credible reason has emerged before me to suggest that the Magistrate was wrong in accepting that evidence. Indeed from the record it seems to me he was entirely right in doing so. Moreover, he had the advantage of actually seeing and hearing the constable and the Appellants and observing their demeanour. Reverting, then, to the speed of 110 km per hour, since the constable's evidence was accepted, the possibility that the speedometer was locked in the process of accelerating and intercepting the Appellants and that the relevant finding is unsafe can be dismissed having regard to the general tenor of the constable's evidence in particular the context and sequence of the following passage:-

"I chased them for about 3/4 of a kilometre. Then I was able to maintain a distance from them. I was 60-70 metres behind. I noticed my speedo read 110 km."

I accordingly reject the first ground of appeal.

5. Mr. Polson next submitted that if the excessive speed of 110 km per hour were disregarded, the other actions would constitute only careless driving and not reckless driving. Even if I were to disregard my view that there is no reason to reject the Magistrate's finding that the Appellants were travelling at 110 km per hour, I would be unable to accept that submission for the constable's evidence is that the Appellants also indulged in cutting lanes, changing lanes at speed through small gaps without signals, causing others to brake, continually following each other closely and overtaking each other. All this was at speed and on a fast three-lane highway for an observed distance of four to five kilometres. In my view this would amply sustain the Magistrate's finding of reckless driving without reliance upon a speed of 110 km per hour. Accordingly I have no difficulty in also dismissing this ground.

6. However it is the remaining ground that causes me some concern. Mr. Polson referred me to the well-known House of Lord's dictum in R. v Lawrence [1981] 1 All E.R. 974 that, and I quote from the headnote, "the actus reus of the offence of driving recklessly ...... is not merely driving without due care and attention but driving in a manner that creates an obvious and serious risk of causing physical injury to any other road user or substantial damage to property. The mens rea of the offence is driving in such a manner without giving any thought to the risk or, having recognised that it exists, nevertheless taking the risk. It is for the jury to decide whether the risk created by the accused's driving was both obvious and serious, the standard being that of the ordinary prudent motorist as represented by themselves."

7. Mr. Pelson complains that the learned trial Magistrate has not set out the factors upon which he satisfied himself that the criteria in Lawrence were met, but merely recorded his conclusion. I do not think it is essential for a Magistrate to specify all the factors upon which he relies and each and every link in the chain of reasoning by which he reaches his conclusion. It is clear from the record that the learned Magistrate was specifically referred to  the decision in R. v Lawrence. Indeed he commenced his judgment by recording that the Appellants' solicitor had helpfully referred him to that decision, in which both the mens rea and actus reus of reckless driving were laid down. However, and it is this that has caused me concern, the learned Magistrate observed in his signed statement of findings, that the defence realistically accepted that if the vehicles were in fact driven as alleged by PW1 (the constable), that would constitute reckless driving. There is no record of the defence having made such a concession. That observation, in the absence of any mention to the contrary in the judgment or written statement, suggests at least a possibility that the learned Magistrate might have failed to consider whether reckless driving had been established in terms of the criteria in R. v Lawrence.

8. However that may be, the evidence establishes that the Appellants considerably exceeded the speed limit of 80 k.p.h. by driving at 110 k.p.h. and that they were weaving in and out, changing lanes through small gaps without signalling causing others to brake to avoid collision, overtaking and following each other head to tail, and doing so for a considerable distance on a fast road. In my judgment the learned Magistrate properly directing himself could not have come to  any conclusion but that the Appellants were guilty of reckless driving. In my view the Appellants were quite clearly not merely driving without due care and attention, but in a manner that created an obvious and serious risk to other road users, and of substantial damage to other vehicles. They could not have failed to recognise that risk, having particular regard to the manner of their driving and the distance over which such driving continued; neverthe-less they took that risk. In the latter regard the Magistrate in his reasons for the sentences referred to drivers who deliberately place others at risk. And finally that the risk of injury to others and damage to property must have been both clear and obvious is only too apparent from the nature of the Appellants' conduct and the evidence. I would accordingly apply the equivalent of the proviso implicit in section 119(d) of the Magistrates Ordinance (Cap.227) (see the judgment of the Full Court in Leung Chi-kin v The Queen [1969] H.K.L.R. 25 at pp. 44 and 45). The appeal against conviction is therefore dismissed.

9. Proceeding then to the appeal against sentence, the first Appellant has one previous conviction for careless driving in 1984 and two of excess speed in 1984 and 1986. The second Appellant has a clear record. It is urged that the Tolo Highway on which the offence was committed, is a wide, almost straight and flat highway free of intersections, that traffic was not heavy at the time; also that the livelihood of the two Appellants is affected and that a heavy fine would be adequate particularly in the case of the second Appellant. In my view, the learned trial Magistrate rightly took a serious view of the Appellants' reckless driving which, far from being momentary acts of the sort normally encountered, was sustained over four to five kilometres and probably even more considering that they were already engaged in what the Magistrate termed as laying a game' when they were first spotted. The public must be protected from that sort of disregard for their safety. As to the livelihood of the Appellants being adversely affected, I do not think it was seriously suggested, nor does it seem to me, that they would not be able to earn their livelihood in some manner other than driving, even if that might be less remunerative. Moreover the vastly greater amount of driving done by professional drivers must if anything call for proportionately greater protection of the public from those of such drivers who are reckless. The sentences are undoubtedly heavy and while I myself would not have been inclined to impose quite so long a period of disqualification particularly in the case of the second Appellant, I do not think it appropriate to tinker with the sentences by reducing that period by the minor extent that I might have favoured in respect of the second Appellant. I say that because I do not think either sentence could be said to be manifestly excessive. Even in the case of the second Appellant, his reckless driving, no less than that of the first Appellant was, as I have said, sustained over a considerable distance and period.

10. The appeals of the two Appellants both against conviction and sentence are therefore dismissed.

Representation:

Miss D. Crebbin, Senior Crown Counsel, for the Crown.

Mr. I. Polson, instructed by Messrs. Tai, Ho & Chan, for the Appellants.