HKSAR v. Ip Chung San

HCMA318/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.318 OF 2005

(ON APPEAL FROM TMCC 2873 OF 2004)

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BETWEEN

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Before : Hon Pang J in Court

Date of Hearing : 12 May 2005

Date of Judgment : 24 August 2005

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J U D G M E N T

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1.The appellant was tried and convicted in the Tuen Mun Magistracy on one charge each of dangerous driving, failing to stop after a motor vehicle collision and criminal damage.  He was sentenced to 4 months’ imprisonment and disqualified from driving for 12 months for the dangerous driving, 4 months for criminal damage and 28 days’ imprisonment for the failing to stop charge.  All sentences were ordered to run concurrently.  He now appeals against his convictions and sentences.    

2.The incident took place in the early hours of 4 March 2004 when the private car driven by the appellant was stopped by two unmarked police vehicles outside the former Lau Fau Shan Police Station.  There were three other males in the car.  In the course of the pursuit the appellant’s vehicle had collided with the police vehicles causing extensive damages to their body works. 

3.At the trial four police officers gave evidence for the prosecution.  In summary their evidence was that at about 2.55 a.m. on 4 March 2004 four police officers in plainclothes were performing anti-smuggling and anti-illegal entrants patrol duty in Bird’s Paradise in Sum Wan Road in the Lau Fau Shan area.  The police vehicles were unmarked private vehicles.  The two officers (PW1 and PW2) in the first vehicle were instructed by PW4 who was in the other vehicle with PW3 to investigate the appellant’s vehicle which was seen being driven earlier towards the carpark area.  PW2 alighted from the first police car and approached the driver’s side of the appellant’s vehicle.  He produced his warrant card and revealed his police identity.  He noticed the appellant who was previously seated in the front passenger seat switched seats with the person next to him and started to drive away.

4.In the meantime, PW4 who was in the second vehicle parked at a distance from the carpark noticed the appellant’s car driving rapidly away from the spot.  In the course of fleeing the scene the appellant drove his vehicle into PW4’s vehicle and collided with it.  Both police vehicles then gave chase and the appellant was seen driving towards the former Lau Fau Shan Police Station.  The appellant’s vehicle was eventually caught up outside the closed main gate of the disused Police Station.

5.In the course of the pursuit by the police vehicles, the appellant and another male who appeared at the original trial as the 2^nd defendant dialed the 999 report centre.  The audio tape and the transcript of the conversations of the two telephone calls were exhibited at the trial.  Subsequent to his arrest the appellant was interviewed under caution and the record of the cautioned interview was admitted as evidence pursuant to section 65C of the Criminal Procedure Ordinance. 

6.At the trial it was conceded by the defence that the manner in which the appellant had driven the vehicle was in fact dangerous.  The appellant who had a clear record elected to give evidence.  What he said in his evidence can be summarised as this : he was the driver of the vehicle in question.  At the material time he and three teenage friends had driven to the Bird’s Paradise area and parked his vehicle in the carpark when he was approached by the police officer in plainclothes.  He thought the men in the first vehicle were robbers.  He could not hear clearly what the man said when he approached his vehicle.  In fear of his own safety he drove away.  While getting out of the carpark, he thought those in the second unmarked police vehicle were accomplices of those in the first vehicle.  He became even more alarmed when he noticed later that the cars were pursuing him and in desperation, the appellant and his friend made a report to the 999 report centre through their mobile phones summoning for assistance. 

7.Mr Oderberg who also appeared at the trial relied on what is now a recognised defence in law which is variously referred to as “duress of circumstances” or “necessity” on a charge of dangerous or reckless driving.  The issue was addressed in detail in Mr Oderberg’s submission at the end of the trial.

8.The magistrate considered the case of the R. v. Martin [1989] RTR 63, the leading authority in this area of the law in a judgment by the English Court of Appeal.  The magistrate went on to consider the evidence of PW1 and PW2 and the evidence of the appellant.  He was satisfied that when the police officer approached the appellant’s vehicle, he had effectively communicated his identity and his intention to the appellant in the vehicle.  The appellant, while fully aware the witness’s police identity, nevertheless decided to escape.  In the course of so doing he drove dangerously and collided into and damaged the two police vehicles.  The magistrate’s reasons for rejecting the appellant’s evidence are stated in paragraphs 20, 21 and 22 of the Statement of Findings :

“In coming to those conclusions I took into account the defendant’s clear record, and I also took into account what he told the police under caution.  Essentially what he told the police under caution was the same account as he had given under testimony, and it was in effect a mixed statement.  I also took into account the fact that following D1’s collision with PW4’s vehicle he had made a 999 call to police, and he also headed to Lau Fau Shan Police Station.

The defendant, in his evidence, claimed that PW2 had come up to the vehicle and without further ado vandalized it.  If that was so, clearly that was wholly unprofessional conduct & unlawful conduct on PW2’s part.  It was a very serious allegation of police impropriety leveled against PW2 and I gave the matter due consideration.  I found it however to be a ludicrous and unjustifiable claim on D1’s part, representing a desperate attempt on D1’s part to justify his hurried departure from the car park and his manner of driving thereafter.

I found the 999 call to be a ruse on his part to avoid the consequences of his leaving the car park and colliding with PW4’s car.  I found it to be a false report and not indicative of D1’s belief at the material time.  Similar considerations applied to the other 999 call and also D1’s decision to drive to the police station.  The prosecution were able to prove that the defence of ‘duress of circumstances’ did not apply in this case.”

9.He found the appellant’s account to be “ludicrous and unjustifiable”.  He also found the 999 call to be a “ruse”.  There remained, however, one aspect of the appellant’s evidence which was not in dispute and had not been adequately addressed by the magistrate.  The appellant had driven his vehicle to the now disused Lau Fau Shan Police Station before he was eventually intercepted by the police.  This raises one legitimate question : if the appellant knew those who approached him at the carpark were police officers, why then would he drove his car to a police station in the area? 

10.Mr Oderberg advanced eight grounds of appeal which are all directed at the magistrate’s approach to the undisputed evidence of this case and the conclusions he had drawn therefrom.  The magistrate was criticised for being preoccupied the belief that the appellant was seeking to avoid arrest when approached by the police officer.  The friend whom he was seen to have switched places did not have a driving licence and hence they had to face the legal consequences for driving without a licence and without third party insurance.  This, in the mind of the magistrate, was what prompted the appellant to react and to drive in the way he did. 

11.When one looks at the transcript of the conversations the appellant and the other youngster had with the 999 report centre, it clearly conveyed a sense of desperation and urgency.  The sense even more acute when one listens to the tapes.  If the magistrate was correct in describing the reports as a “ruse” then it would have been the case that the appellant and his companions in the vehicle had made up the story of being chased by robbers and made a report to the 999 centre.

12.Further, if one looks at the appellant’s cautioned statement, the contents were consistent with his account which he had given in the witness box.

13.At paragraph 22 above the magistrate ruled that “the defence of duress of circumstances did not apply in this case” and hence not available to the appellant.  The basis of his so finding was that he was satisfied when the police officer approached the appellant’s vehicle, he was able to effectively communicate to them of his intention and the purposes of stopping them.  The appellant and his passengers were aware that the person who approached them was a police officer and not a robber. 

14.In R. v. Martin (supra), Simon Brown J addressed the issue on the factual circumstances where the defence of duress of circumstances is available.  He said :

“Secondly, the defence is available only if, from an objective standpoint, the accused can be said to be acting reasonably and proportionally in order to avoid a threat of death or serious injury.”

15.One must note in the present case, it is not in dispute that the police officers were in plainclothes and they were patrolling in unmarked vehicles.  The circumstances was very different from a police road block manned by uniformed officers and where marked police vehicles with flashing lights are parked nearby.  The area where the incident occurred was in a remote and dimly lit carpark in the New Territories in the small hours of the morning.  The occupants of the appellant’s vehicle were youths whose age ranged from 17 to 21 with the oldest being the appellant.  That being the case, it certainly leaves room, from an objective point of view, that the appellant could have been put into fear and into thinking that his well-being was being threatened by a stranger who was claiming to be a police officer.  His initial reaction, albeit contrary to the assertion by the police officers and the conclusion of the magistrate, would have compounded itself and could have accounted for the appellant’s subsequent behaviour which had resulted in his subsequent arrest and prosecution.

16.The appellant’s assertion that he was being threatened by what he perceived to be robbers might have a ring of truth in it.  The decision of the magistrate that the defence of “duress of circumstances” was not available to him was therefore erroneous.  There appears to be a lack of objectivity on the magistrate’s part.  This is a case where the magistrate should have held the defence was available to the appellant, and should have proceeded to consider the evidence in that light.  He did not.  The convictions of the appellant were reached without a proper consideration of the legal issues involved and were therefore unsafe and unsatisfactory.

17.For the reasons given, the appeal against conviction is allowed.  The sentences and penalty imposed on the three charges are set aside.  

Miss Lily Ho, SGC of DPP, for the Respondent

Mr Keith J. Oderberg, instructed by Messrs Ong Hean Cheng & Co., for the Appellant