The Queen v. Yuen Kwok-hung and Others

CACC000539/1983

Coram: Hon. Cons, J. A. in Court, sitting as an additional Judge of the High Court

Date: 3rd June, 1983.

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JUDGMENT

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1. This is an appeal brought by eight appellants against their convictions of driving in a road race without the consent of the police and for dangerous driving. For those offences all save one were sentenced to two months imprisonment on each charge, the sentences to run concurrently, and on the racing charge were disqualified for two years from holding a driving licence. The exception was the 13th defendant, (I shall for convenience continue to call them by the positions they held in the trial below) who was given the same terms of imprisonment but a longer disqualification for the racing charge, with a concurrent disqualification for dangerous driving.

2. The racing started from the car-park at Ting Kau and continued along the Castle Peak Road westwards. Evidence was given by police officers who were stationed at the car-park and along the road, one at what has been called "Point B" by Dragon Apartments, another at "Point C" by Dragon Villa and the last at "Point D", which was somewhere further westwards along the road, near to some road works.  At one stage in the proceedings the police set up road blocks at these three points. I should also add that there were further road works between Point C and Point D.

3. Before I deal with the individual defendants, I should make two general points. The first is that originally there were some 44 defendants charged before the magistrate on the same counts. Even the police appear surprised at the scale of the operation that was mounted that evening. It must have been a very confusing and tedious case for the magistrate to try. In my view he is to be commended for the conscientious and detailed approach that he took and for the clear manner in which he analysed and presented the evidence in his Statement of Findings and in his judgment at the close of the case. The second point is that there is ample evidence from which he could assume that on that night, and over that stretch of road, there was organized, or semi-organized racing of some kind or other. The questions that remain are whether there was sufficient evidence before him to justify his conclusion that these eight appellants took part in that road racing, and whether they were driving dangerously at any particular time. I will deal with the defendants in the order in which the arguments have been presented.

4. The first is D6, YUEN Kwok-hung. He was driving a Toyota private van CR1064. He has been represented this morning by Mr. Mayne of counsel. Amongst the 20 odd defendants who remained in the proceedings after the close of the prosecution case he was unusual, indeed he was unique. He gave evidence on his own behalf and he called another witness in support. The magistrate rejected their evidence. It is said that he was wrong to do so. With respect I do not agree. The responsibility for what evidence should be believed and what evidence should be rejected is given by law to the magistrate who conducts the trial. This court will only interfere in two instances, firstly if the magistrate has misdirected himself in any way and secondly if, in the particular circumstances, no reasonable magistrate could reasonably have come to the same conclusion.

5. The magistrate in this instance gave reasons for his rejection of the evidence of the defendant and his witness. All of those reasons had validity to some extent, the strongest of course being the irreconcilability of the defence evidence as to what was happening in the car-park with the evidence of the police officer there. All in all, I think, I would probably have come to the same conclusion as the magistrate, but that is quite by the way. Even if I had taken a completely opposite view I would have no reason to interfere.

6. The principal evidence against the 6th defendant is that he was seen to be one of the 60/70 odd vehicles who were jockeying for position and jostling each other in their attempt to get quickly out of the entrance of the car-park. From that fact alone the magistrate inferred that the 6th defendant was participating in the race. With every respect to him that inference is not justified. This was a public car-park, open apparently at all times to any member of the public who wished to take a vehicle there. There is evidence that at least earlier in the evening other vehicles had been taken there for what might, in the context, be called innocent purposes. The police evidence against the defendant certainly arouses suspicion. That suspicion is fuelled by his lies and the lies of his witness. But in my view it does not discount the real possibility that his vehicle could have been inadvertently, and innocently, caught in the maelstrom that errupted as soon as the signal to start was given.

7. The magistrate relied upon the case of Wilcox v. Jeffrey (1) but in that case there were additional matters which went far beyond mere presence at the incident. The only other matter here is that the defendant was later found returning from what might have been either the finish or the outer mark of the course. That in itself takes things no further. The position might have been different had there been evidence that the distance between the two points was such that the van could not have been at both, at the times it was, without having been driven at such a seed that it was obviously taking part in the race. The conviction for racing must therefore be set aside, and the conviction for dangerous driving will fall with it. I should also add, as I indicated during argument, that I have grave doubts that mere participation in the racing would in itself be sufficient evidence of dangerous driving, even though there is direct evidence of some extremely dangerous driving by other participants in the race. Counsel for the Crown, while not conceding any general principle, has indicated that he would not, in any event, have pursued that argument.

8. The next two defendants, that is No. 13 and 17, have through their counsel Mr. Smith, indicated that they do not wish to pursue their appeals against conviction. I therefore formally dismiss those appeals.

9. The 20th defendant is LIN Nin-hing. That night he drove a Toyota CR8232. He has been represented today by Mr. Midgley, who puts forward three grounds of appeal. The first is much the same as that which I have already dealt with, namely that mere presence in the start of the race does not necessarily show participation in the race. However he takes that point a little further. He says the magistrate was wrong to assume that any car seen earlier in the car-park and not seen to leave before the race was necessarily included in the start. Put simply in that way, I agree with him. It is, however, a fact that cannot be discounted completely, and should be taken together with the evidence of the conduct of the defendant while in the car-park during the period before the race and then subsequently in the actual driving on the course itself.

10. The second ground of the appeal relates to the credibility of the first prosecution witness and does no more than make comments that might well have been addressed to the magistrate at the trial. Indeed I think they must have been, for at page 135 of the record he deals with them.

11. The third ground of the appeal is a kind of mathematical argument. It depends upon assumptions as to what went on westward of Point D. However there is no evidence to support those assumptions. On the other hand there is ample evidence to show that the 20th defendant was racing, apart from what occurred in the car-park. His car was seen as one of a group of four running as close together as no more than two feet apart, then braking into a bend at 50 to 60 m.p.h.; it was seen again going through road works at 60 to 70 m.p.h. The first of those incidents is quite compatible and consistent with racing. The second tends towards dangerous driving. It is said that the magistrate misled himself with regard to the conviction of dangerous, driving by assuming that everybody who took part in the race was automatically driving dangerously. I have already indicated that in my view that is an incorrect principle. However the evidence I have mentioned is ample to support the charge of dangerous driving and I am not prepared to interfere with the magistrate's decision. Accordingly the 20th defendant's appeals against conviction are dismissed.

12. The 28th defendant is KO Kwok-fu. He was driving vehicle CE2757. Mr. Midgley puts forward three grounds of appeal on his behalf as well. The first is that the magistrate took into account evidence of Prosecution Witness No. 2 which the magistrate recites at page 136 of the record. I do not think he is there saying that he relied upon that evidence. The heading to that particular part of his Statement of Finding is "Prosecution Case - In Particular; concerning the Appellants, individually". I agree with Mr. Midgley that perhaps it would have been better had he expressly qualified the particular reference, but it is quite clear from his statement as a whole, and in particular from the judgment he delivered at the conclusion of the case at page 110, that he was in no way relying upon that witness.

13. The second ground of appeal is another mathematical argument. It seems to me to depend upon the assumption that all the vehicles raced flat out throughout the whole of the distance. It makes no account for what might be perhaps deliberate or unintentional stoppages. There is, for example, in the area concerned a set of road works with traffic lights at which some, although by no means all, of the racing cars did stop when the light showed red.

14. The third ground of the appeal is another attack on the credibility of the first Prosecution Witness. It relates to considerations which the magistrate clearly had in mind as one can see from page 140 of the record paragraph 32.

15. There is ample evidence that this defendant took part in the racing. His car was also in a group which was as close together as something like two feet, and that when travelling into a bend at 50 m.p.h., and it was also seen going through the road works at 60 to 70 m.p.h. As regards the magistrate's consideration that anyone partaking in the racing was driving dangerously automatically, my comments are the same as for the previous defendant. The 28th defendant's appeals against his conviction are dismissed.

16. The 40th defendant is YIP Hi. He drove a Mitsubishi CL1877. His position is on all fours with that of the 6th defendant. I will not repeat the comments I made just now. His appeals against convictions must be allowed on both counts.

17. The 41st defendant, also represented by Mr. Smith, is LAM Kwok-chung, driving a Cortina AY1903. As the magistrate discovered, when writing up his Statement of Findings for this appeal, this particular defendant had not during the course of the trial been identified as the driver of that particular vehicle. His appeals must succeed.

18. No. 27 is NG Cheuk-piu, driving a Mitsubishi van CW8733. He has appeared in person today and the ground of his appeal is that he was not the driver at the time. I must apologize for my misunderstanding as to what his solicitor agreed at the time of the trial. I am comforted that Mr. Little misunderstood it as well. Nevertheless, all that was in fact agreed at the trial was that when the car was located by the police after the road blocks had been set up, the 27th defendant was the driver.

19. When a person is found at one particular moment of time to be the driver of a private car it is a not unnatural conclusion that he was also the driver of the car at the moment that immediately preceded. It is of course not conclusive. Persons do change the driving responsibilities in the course of a long journey and sometimes for other reasons. But where there is no evidence to the contrary and no circumstance which suggests a change it is a reasonable conclusion to draw, and was drawn by the magistrate in the instance. It is a matter primarily of common sense, however it has been judicially approved in Beresford v. St. Albans J.J. ⁽²⁾.

20. As no other question has been raised in this particular appeal and there is ample evidence of racing and dangerous driving, the appeals of the 27th defendant are dismissed.

21. I will then be pleased to hear counsel for those whose appeals have not been dismissed as to sentence.

[Submissions by counsel were heard]

23. I turn now to the appeals against sentence. As I mentioned earlier all were dealt with in precisely the same way except for the 13th defendant who received a longer period of disqualification. Naturally the personal circumstances of each defendant must be individually sligthly different, but except in one point, I do not see sufficient differences between them to warrant any variation of sentence. That one point concerns the three who are professional drivers. It is well settled that when it comes to the question of disqualification professional drivers are looked at as being in a class of their own. The reason, no doubt, is that an order for disqualification bears far more heavily upon professional driver than it does upon one who drives purely for social purposes. For this reason I think it right to the orders of disqualification upon the 13th, 27th and 28th defendants by restricting the disqualifications to private cars and motor cycles only.

24. There remain then the sentences of imprisonment. In deciding the length thereof the learned magistrate said this :

"The term should be short, but not so short as to constitute only a temporary inconvenience in the lives of the Appellants. I considered that there was a risk that the degree of organisation which prompted this race could be repeated in the future, and there was therefore the need to fix a term of imprisonment which would be a deterrent to any persons contemplating repeating such a race."

25. I have been referred to authorities that sentences intended to be a general deterrent should not be passed upon first offenders. In particular my attention was drawn to R. v. Ho Kau ⁽³⁾ where Addison J. quotes from the unreported decision of R. v Garthwaite ⁽⁴⁾ where the then Chief Justice said this :-

"Finally, it is not desirable that the first sentence of imprisonment passed on an offender should be a deterrent sentence in the sense of a general deterrent to deter other persons from behaving as this appellant did."

26. The learned judge also quotes from the Criminal Division of the English Court of Appeal in R. v Curran⁽⁵⁾ :-

"As a general rule it is undesirable that a first sentence of immediate imprisonment should be very long, disproportionate to the gravity of the offence, and imposed, as this sentence was, for reasons of general deterrence, that is as a warning to others. The length of a first sentence is more reasonably determined by considerations of individual deterrence."

27. I would therefore stress firstly, that it is only a general rule to which there are exceptions dictated by special circumstances and secondly, that I have some doubt that it has any application to serious and deliberate driving offences see e. g. R. v. CHEUNG Kin-man⁽⁶⁾.

28. A.G. v. TAM Chi-man and others ⁽⁷⁾ is, as far as I am aware, the only case similar to the present that has reached the Court of Appeal. Curiously enough it has not been reported and I understand that copies of the judgment are difficult to obtain. That case concerned a group of about 10 motor-cyclists who, soon after mid-night, raced their machines along Caine Road, Queensway and Gloucester Road, eventually ascending Tai Hang Road where some were caught. In the course of their racing they crossed double white lines, wove in and out of traffic and moved at times at speeds exceeding 90 m.p.h. The trial magistrate imposed light fines and disqualification for one year limited to motor cycles. Upon review the Court of Appeal did not interfere with the fines or disqualification but added terms of imprisonment of two months, which were then suspended for one year. In giving the judgment of the court McMullin said this :-

"We are satisfied that these sentences were in the circumstances disclosed manifestly inadequate and wrong in principle. It cannot be stressed too strongly that persons who make use of a public highway for the purpose of racing, as these young men did, and in doing so drive at very great speed using the intervening traffic as a kind of obstacle course to demonstrate their skill and nerve have engaged in conduct of a kind which merits the strongest condemnation in respect of which custodial sentences will generally be justified, all other factors in the individual case being taken into account."

29. The ages of the "young men" in question were 19 and 20. Apart from the 27th defendant, who is 21 years and single, the present appellants can hardly be called young men in the sense which so often carries overtones of acceptable irresponsibility. The ages of the remainder vary from 25 to 28 and all are married with a child or children, save one whose wife was, at the time of the trial, pregnant.

30. Mr. Smith makes the point that the words used by the court indicate that it is not the racing itself that necessarily deserves such great condemnation the court must also look at the actual manner of driving. To some extent I suppose that is true, although any form of competitive driving on public roads must be discouraged, other than such, of course, as may be expressly permitted by the authorities with appropriate safeguards. In the event, however, I am unable to see any substantial distinction between a motor-cyclist who is one of a small group that weaves in and out of traffic on well-frequented roads and then continues the race at a dangerously high speed along a lesser used, but nevertheless, narrow and winding road such as Tai Hang, with a motor car driver who is one of many groups who race their machines in a similar manner along a similar road in the New Territories. They are both an extreme danger, not only to themselves and their families, but to the innocent users of the roads for whom they see to have not the slightest regard. If such conduct were allowed to proliferate persons who need to use the roads for lawful business during the small hours of the morning would be put at the gravest risk. I respectfully agree with the Court of Appeal that custodial sentences are justified. For my own part I would go further and say that they are imperative; unless there are very special considerations. In Tam Man's case the court thought fit to suspend the sentences that it imposed. No reason is expressly given but it would seem to follow from the words used, that it was done to reflect the fact that the proceedings then before the court were by way of review on the application of the Attorney General. I see no reason in the present instance to adopt a similar course The maximum term of imprisonment laid down for these offences is six months. In the circumstances two months is by no means excessive.

31. For these reasons all the appeals against sentence are dismissed, save to the extent that I have already indicated.

(1)     (1951) 1 ALL E.R. 464

(2)     (1905) 22 T.L.R. 1

(3)     (1978) H.K.L.R. 197

(4)     Cr. App. No 566/77

(5)     (1973) 57 Cr. App. R. 945

(6)     (1981) H.K.L.R. 684

(7)     Cr. App, 19 of 1980

Representation:

Mr. Ronald Mayne (M/S John Ku & Co.) for lst appellant.

Mr. Midgley of (M/S Holdane Midgley & Co.) for 4th & 6th appellants.

Mr. C. Smith (M/S John Ip & Co.) for 2nd, 3rd, 7th & 8th appellants.

The 5th appellant in person.

Mr. David Little, Crown Counsel for respondent.