HKSAR v. Ho Kwok on

HCMA979/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.979 OF 2005

(ON APPEAL FROM TMC 1507 OF 2005)

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BETWEEN

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Before : Hon Lunn J in Court

Date of Hearing : 19 July 2006

Date of Judgment : 23 August 2006

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J U D G M E N T

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1.The appellant appealed against both his conviction after trial on 14 September 2005 by Mr Mackintosh in the Magistrate’s Court at Tuen Mun of the offence of dangerous driving on the roads, contrary to section 37(1) of the Road Traffic Ordinance, Cap.374 (“the Ordinance”) and against the sentence of three months’ imprisonment imposed by the magistrate for that conviction.  The appellant was tried together with two co-defendants, drivers of other vehicles, who were charged with offences of road racing arising from their driving of those vehicles both before and later at the same time and place as the appellant.  In the event, the magistrate amended the charges pursuant to section 27 of the Magistrate’s Ordinance to one of dangerous driving, of which they were convicted.

2.The appellant was the 2^nd defendant at that trial.  At the commencement of the trial the appellant pleaded guilty to a charge of driving a motor vehicle with an alcohol concentration in breath exceeding the prescribed limit, contrary to section 39A(1) of the Ordinance.

The charge

3.The particulars of offence averred that on 2 January 2005, the appellant had driven a motor car, with the registration mark LE 835, dangerously on the road between Yuen Long Highway near chainage 32.7 (Tsuen Wan bound) and Tuen Mun Road near chainage 28.5 in the New Territories.

The prosecution case

4.It was not in dispute that the appellant was the driver of a motor car with the registration number LE 835, nor that the appellant was the driver of that vehicle at the time that it was stopped at about 03:25 hours at an “ad hoc” roadblock at Tuen Fat Road.  The roadblock was formed by a police tow truck that had been manoeuvred to occupy the inside lane of the highway at an angle to the oncoming traffic.

5.In his Statement of Findings the magistrate referred to the appellant by his designation in the trial as D2.  His references to the prosecution witnesses by the alphanumeric designation ‘PW---’ is different from the alphanumeric designation those witnesses bear on the transcript.  The witnesses the magistrate described as PWs 2 to 5 are assigned numbers in the transcript that are one digit higher respectively. The magistrate’s reference to PW2 is to SPC 3445, Wong Siu Ming; PW3 is to SPC 46199, Ng Hop Tat; PW4 is to SPC 48758, Cheng Kit Mo and PW5 is to SPC 5652, Cheng Chi Fai.

6.It is convenient to quote from the magistrate’s findings to describe the events as they unfolded after the police reacted to the driving that they had witnessed.  The magistrate described the evidence that had been led of the events as they unfolded thus :

“6. … at about 3.20 on the morning of 2nd January 2005, Station Sergeant Chan Kai-wing, PW1, was in an unmarked police car at a raised observation point on Fanling Highway.  He saw a phalanx of some 20 to 30 cars passing at high speed.  Many of these cars were without number plates or had their number plates concealed.  Their speed was about 160 kph.  The limit was 100 kph.  They occupied the whole of the three-lane road and were in the ranks of three or four abreast and close together.”

7.Later, the magistrate described the station sergeant’s actions in response to what he witnessed :

“8. He informed other police officers by radio that a group of fast moving cars was heading towards Tuen Mun.  Experience told him that that was the direction they were likely to take.  He followed the group on the 21 kilometre route towards Tuen Mun.  At one point early on, he noticed his speedometer read 200 kph.  The journey took about nine minutes.  Simple arithmetic shows that the average speed of the journey was around a 140 kilometres per hour.

9. During the course of the journey, and particularly after the two cars had allegedly failed to overtake the main group, he saw minor collisions amongst the group as cars jockeyed for position.  He could see in his peripheral vision cars trying to come in on the slip roads being forced to a halt.  A motorist already on the road had been forced to the side.”

8.Of the assistance given to the station sergeant by other police officers in his pursuit of the fleet of speeding motor cars, the magistrate referred to a sketch plan and photographs that were adduced into evidence.  He summarised the evidence given by the other police officers of the positions that they had occupied thus :

“11. The route is set out in the sketch plan (Exhibit 1) and in the photographs (Exhibit 2).  PW2 went to OP1, standing in the middle of the extensive roadworks around Yuen Long.  PW3 went to OP2 by the side of the Tuen Mun Road, not far from the roadblock.  PW7 went to OP3 on a bridge over Tuen Mun Road.  PW6 set up a roadblock with another officer near to the Esso garage, RB2 on the plan.  This was not the principal roadblock.  PWs 4 and 5 set up the roadblock, which is mainly relevant to this case, near Tuen Mun Town Plaza (RB1).  It was created by using a police tow truck which waited in a slip road to Tuen Mun Road (called Tuen Fat Road) until the arrival of the group.”

The prosecution case

9.The prosecution case against the appellant rested on the identification of two police officers of the vehicle registration number of the appellant’s motor car as it passed the separate places at which those two police officers had taken up position in order to observe the oncoming phalanx of speeding motor cars.  Police officer Wong Siu Ming, SPC 3445 was within the area of roadworks on the Yuen Long highway, at what was described as “chainage 32.7”.  That appears to be in a reference to a measurement distance, but from or to what was never established at trial.  That place was described at trial as being “OP 1”.  Photograph 7 of exhibit P2 depicts that place, the chainage number affixed to a concrete central divider, immediately beneath a 50 km speed sign.  Of his evidence, the magistrate said :

“28.   PW2 was directed to a position within the area of the roadworks on the Yuen Long Highway at chainage 32.7 (OP1).  The speed limit in the area was 50 kph.  He was standing behind temporary barriers between the two carriageways and was therefore adjacent to the offside lane of the Tuen Mun bound carriageway, near to the ‘50’ sign in photograph 7.  He heard loud engines and saw the lights of the pack of cars.  He estimated the main group to be 20 to 30 cars with their numbers covered.  Shortly behind them were the three subject cars: EK708 (D1) in the offside lane, one foot ahead of LR9033 (D3).  In the nearside lane, alongside LR9033 was what PW2 called ‘EL835’ through most of his evidence.  He was able to see the front number plate of EK708 and the rear plates of the other two.  He immediately noted them onto his hand.  The speed of the cars, he estimated, was 160 k ph.”

10.The reference by the witness to the vehicle registration number “EL 835” was recognised by the witness in the course of his evidence to be a mistaken transposition of the vehicle registration number of the appellant’s vehicle, namely “LE 835”.

11.Police officer Ng Hop Tat, SPC 46199, took up an observation position on the Tuen Mun Road, which place was depicted in photographs 10 and 11 of exhibit P2.  At trial it was described as “OP 2”.  At that position, the officer was protected by steel barriers at a point at which the two lane Tuen Mun highway was joined by a two lane slip road from the left, as one looks towards Tuen Mun.  Of his evidence, the magistrate said :

“35.   More or less the same points as to time and distance and speed are made as to PW3’s observations at OP2 on the Tuen Mun Road.  His position, shown in photograph 10, was well selected.  It gave a good view.  He described the cars jockeying for position, making lane changes as they drove very close together.  The crucial part of his evidence was his sighting of D1 and D2’s cars crossing the double white line to overtake the group.  He later drew a sketch of the manoeuvre which he said they made (Exhibit 3).  The two cars pulled out, one after the other, from within the group, crossing the double white lines dividing the slip road from the main road and executing an overtaking manoeuvre at 170 kph in this 70 kph zone.

36.     I appreciate it was a short view, a matter of seconds, but it was long enough to see their rear number plates as they flashed past and to note them.  The two cars pulled out from the group, one after the other, exposing their rear number plates to view.  This was not long before the roadblock at which these two cars were to the front of the group as it approached, consistent with having overtaken.”

12.Of the circumstances in which the appellant’s vehicle was caused to stop at a roadblock in Tuen Mun the magistrate referred to the evidence of the two police officers Cheng Kit Mo, SPC 48758, and Cheng Chi Fai, SPC 5652.  The magistrate described the former as PW4.  He occupied a triangular area protected by low steel barriers at a position where the two lane highway was joined by a one lane slip road.  SPC 5652 was described by the magistrate as PW5.  He drove a police tow truck and positioned it, first of all across the nearside lane of the highway and then manoeuvred it so that it blocked both the near and outer lane of the highway.  Of their evidence, the magistrate said :

“39.   PWs 4 and 5, set up the roadblock on Tuen Mun Road, near the town centre.  PW5 was driving a police tow truck.  They had heard about the impending arrival of the group of cars on the radio.  The tow truck’s red and blue emergency lights were illuminated.   The group of vehicles arrived more or less at the same time as each other.  The officers estimated that they had been travelling at about 150kph.  PW6, manning RB2 further up the road, put the speed of the group at 160kph as they passed him.

40.     The tow truck was only moved into the first lane to begin with.  To have gone further and totally blocked the road was judged to be too risky.  But the result was that there was a gap on the offside lane for cars to pass through.  The three subject cars, in the order D1-D2-D3, were in the nearside lane.  They came to an abrupt halt. According to the officers, there were cars to the rear of them and cars to their offside.  The latter were able to escape through the gap.  Cars behind the subject vehicles pulled out when they were free to do so and passed through the gap.  The three cars were revving their engines.  They had, according to PW4, who was standing beside them, pulled to the right.  PW5, kept his tow truck in gear, and as soon as he could, he moved to block the offside lane.  He did so before the three cars could escape.  They were trapped and detained.”

The defence case

13.The appellant gave evidence.  He accepted that he had been driving his motorcar with the registration number LE 835 when he brought it to a halt on the nearside lane of the Tuen Mun highway in face of the roadblock created by the police tow truck.  He testified that he had driven there from Yuen Long and adduced into evidence a credit card slip bearing the time 02:59 on 2 January 2005 at which time he had settled the bill at the Newway karaoke establishment in Yau Yuk Road in Yuen Long, collected his motorcar which was parked nearby and set off to his home at Pierhead Garden in Tuen Mun.

14.He said that at all times he had driven properly within the appropriate speed limit.  He had not driven across a double white line in Tuen Mun, as SPC 46199 testified.  As he went past the Tuen Mun town centre, shortly before he reached the police roadblock created by the police tow truck, many vehicles came past him at high speed.  For his part, he stopped his vehicle on the inside lane.  Ahead of him were another motorcar and then the police tow truck.  After a little while, at the request of a police officer he turned off the ignition of his motorcar.

The magistrate’s Statement of Findings

15.The magistrate considered at some length the issue of whether or not there had been an ex post facto “frame up” by the police officers of the appellant and his co-defendants.  The crux of this issue was whether or not the officers had assumed that the three vehicles that they had seen stationary at the roadblock ‘must have been’ part of the phalanx of speeding vehicles observed earlier, but not identified, and falsely claimed to have identified those vehicles, in particular the appellant’s vehicle, at the two earlier positions of observation.

16.In the result, the magistrate found that there had been no such conduct by the officers.  He said :

“49.   There was nothing else about the police officers’ evidence which led to a suspicion that they may somehow have tailored their account of what they saw at their OPs to fit in with what was agreed to be the situation at the roadblock.  Whatever the criticism as to the quality of their observation evidence and their estimates as to speed, they were balanced in their approach, giving no hint of exaggeration or embellishment.”

He went on to conclude, at paragraph 50 :

“I was sure that these police officers, drawn as they were suddenly into this incident, were not manipulating their evidence to suit their case.”

17.Thereafter, the magistrate went on to consider whether the police officers were accurate in their identification of the vehicle driven by the appellant and his co-defendants.  Of the difficulties in making observation of the number plates of motor cars travelling at considerable speed at night the magistrate said :

“24.   Nevertheless, the court had to be acutely aware of the inherent difficulties in the circumstances under which the police officers said that they saw, mentally noted and physically recorded the registration numbers of the subject cars.  The speed of vehicles and the length of view, the lighting, the distance of view and the distance between the vehicles were amongst the issues validly raised with the officers in cross-examination.  And as witnesses, their reliability was to be tested to a degree by any conflicts which arose either internally in their accounts or as between them.”

18.Of the qualities of SPC 3445 as an observer in the circumstances that obtained, the magistrate said :

“30.   It is to be noted that PW2, like the other police officers, was not a casual observer.  He was a traffic officer with 10 years experience in the field.  He said that he had been responsible for over 3000 prosecutions based on laser evidence.  His job therefore involved regular observation of vehicles and their speed.  He, like the other officers, was used to concentrating on the crucial feature, namely the registration number of apparently offending vehicles travelling at speed.  He was highly qualified to give estimates as to speed.”

19.Of the circumstances of SPC 3445’s identification of the registration numberplate of the appellant’s vehicle, the magistrate said :

“PW2 was asked in some detail about the distance between the two groups of cars: he estimated the first group had moved 100 metres past him before the second group arrived.  To some extent this amounted to a freeze-frame analysis of what was, on any view, a fast moving event.  As such it could only be used in broad terms.  However, nothing he said about the grouping of cars undermined his account.  The essential point was whether he could see the number plates, given the speed of the subject vehicles and their position on the road.  I was sure that he could, viewing from what was at least initially, at close range in a well-lit area.  He described seeing D2’s number plate from the rear:  his view was not obstructed”

20.The magistrate identified the crucial part of the identification evidence of SPC 46199 as being :

“35.   … The crucial part of his evidence was his sighting of D1 and D2’s cars crossing the double white line to overtake the group.  He later drew a sketch of the manoeuvre which he said they made (Exhibit 3).  The two cars pulled out, one after the other, from within the group, crossing the double white lines dividing the slip road from the main road and executing an overtaking manoeuvre at 170 kph in this 70 kph zone.

36.     I appreciate it was a short view, a matter of seconds, but it was long enough to see their rear number plates as they flashed past and to note them.  The two cars pulled out from the group, one after the other, exposing their rear number plates to view.  This was not long before the roadblock at which these two cars were to the front of the group as it approached, consistent with having overtaken.”

21.In the result, the magistrate accepted as accurate the identification of the registration number of the appellant’s vehicle and the manner in which it was being driven by both SPC 3445 and SPC 46199.  Of that he said :

“51.   … The length of view of the number plates by the observing officers at OP1 (PW2) and OP2 (PW3) was short because the cars were passing and moving away at high speeds.  But I was sure that there was enough time for skilled and experienced observers to see and accurately record the registration numbers in question.  Lighting at all points was good – from the street lamps and vehicle lights and at the point of observation, there was no obstruction to the line of view.  The fact that PW2 and PW3 saw D2’s car involved in the course of driving provided mutual support for the correctness of their evidence as to his car number; as did his arrival at the roadblock a short time later with the group of fast moving cars, including those of D1 and D3.  The estimates as to speed given by PW2 and PW3 were broadly consistent and were reliable given their experience.”

22.The magistrate found, on the evidence of the two police officers SPC 48758 and SPC 5652, manning the roadblock at which the appellant’s vehicle was stopped, that the appellant had tried to escape.  Of that he said :

“40.   …The three subject cars, in the order D1-D2-D3, were in the nearside lane.  They came to an abrupt halt. According to the officers, there were cars to the rear of them and cars to their offside.  The latter were able to escape through the gap.  Cars behind the subject vehicles pulled out when they were free to do so and passed through the gap.  The three cars were revving their engines.  They had, according to PW4, who was standing beside them, pulled to the right.  PW5, kept his tow truck in gear, and as soon as he could, he moved to block the offside lane.  He did so before the three cars could escape.  They were trapped and detained.

41.     There was a conflict between PWs 4 and 5 as to whether D3’s vehicle had moved to the right.  PW5’s sketch (Exhibit 6) suggested not.  But PW4 was viewing from alongside the three cars.  He could clearly see their positions and hear their engines being revved.  If he was truthful, it was clear from his evidence that the three were waiting for passing vehicles to clear to enable them to escape through the gap.

42.     I was sure that he was truthful, and that the vehicles were attempting to get away.  This was a deliberate action and there was no innocent reason for so doing – none was suggested since they denied trying to leave the scene.  If these defendants were ordinary motorists caught up in this gang of other cars, they would simply have remained at the roadblock.  Their attempt to escape was a reflection of their realisation that they had committed an offence by the manner of their driving and their desire to avoid prosecution for it and it showed that they were not innocent motorists who were inadvertently caught up in events.”

23.The magistrate rejected the evidence of the appellant that he was driving properly, that he had not crossed the double white lines nor driven at high speed.  He accepted that the appellant had been at the Newway karaoke lounge but found that that was not an alibi.  He concluded :

“54.   … The fact that he was in the Yuen Long area was consistent with the fact that he was not seen until OP1.  I was sure of that he was there at the material time and was driving as alleged.  I rejected his denials.”

24.In convicting the appellant of dangerous driving, the magistrate said :

“55.   … The prosecution evidence, taken as a whole, gave a clear picture of a course of dangerous driving within the definition laid down in the Ordinance.  It proved unequivocally the presence of D2’s car at two observation points and with the speeding group at the roadblock.  This led to a compelling conclusion that his participation in the course of driving was deliberate.  It firmly negatived any suggestion of being innocently caught up in events.  D2 was guilty of dangerous driving and I convicted him.”

Grounds of appeal against conviction

The submissions made on behalf of the appellant

26.In support of the grounds of appeal against conviction Mr Jenkyn-Jones relied upon a “Skeleton argument” together with his oral argument.

Ground 1(a)

27.In support of his submissions that the magistrate failed to consider the appellant’s case separately from that of his co-accused Mr Jenkyn-Jones points to references by the magistrate to what the magistrate described as the “defence case”, his conclusion that the appellant and his co-defendants were alleging a “frame up” by the police and his references to the conduct of the drivers of the three cars, including the appellant, who had been stopped at the roadblock as “their attempt to escape”.

Ground 1(b)

28.In his skeleton submissions Mr Jenkyn-Jones’s asserts that it was the appellant’s case that the police officers were merely mistaken in their identification of the vehicle registration number plate of the appellant’s car not that they gave false evidence in that respect.  In particular, he submits that it was not the appellant’s case that there was a “frame up” of all of the defendants at trial.

Ground 2 — the character direction 

29.Notwithstanding the fact that at the outset of the trial the appellant had pleaded guilty to the offence of driving a motor vehicle with a concentration of alcohol in his breath greater than the prescribed limit Mr Jenkyn-Jones submits that it was unfair of the magistrate to take into account that conviction of a criminal offence and to direct himself :

“I treated the propensity issue as neutral in his case.”

Ground 3

30.In his written submission in support of the contention that the magistrate erred in his analysis and evaluation of the evidence Mr Jenkyn-Jones points to the issue of where it was that the appellant joined the highway after he had left Yuen Long.  It was the appellant’s testimony that he had done so at the Tang Yan San Tsuen interchange.  The evidence did not establish where that interchange was in relation to OP 1, the place at which SPC 3445 testified he had observed the vehicle numberplate of the appellant’s vehicle.  Mr Jenkyn-Jones complains that the magistrate indulged in speculation in addressing this issue.

Ground 4 — flight

31.In support of his submission that the magistrate erred in his finding that the drivers of the three vehicles, including the appellant, that had been stopped at the roadblock thereafter were “trying to escape” and the conclusion that he drew therefrom, namely that was a reflection of their realisation that they had committed an offence by the manner of their driving Mr Jenkyn-Jones points to the testimony of the two police officers who manned the roadblock.  Although SPC 48758, who was positioned in the triangle formed by the low steel barriers at the side of the highway and the slip road, testified that after the vehicles had braked to a stop at the roadblock they were, “all positioned towards the right” of the inner lane of the highway and the drivers of those three vehicles were “pressing on the gas pedal” (see page 212C-D; Q) and had asserted that they were “gettingready to move into the second lane of Tuen Mun highway” it was his evidence that only the vehicle with the registration number EK 708 “started off and tried to move on to the second lane to leave.” (see page 213G).  That evidence was confirmed in cross-examination at page 229G.

32.Furthermore, Mr Jenkyn-Jones submits that the magistrate was in error to conclude that there could be no innocent reason for leaving the scene of the roadblock.  He submits that given this was an ad hoc roadblock constituted by manoeuvering a tow truck into the road there was no reason why a driver should conclude that this was other than a manoeuvre by a vehicle and he was required to stay where he was.

Ground 5

33.Amongst the matters advanced in support of the submission that the appellant’s conviction is unsafe is the assertion that the magistrate was not entitled, in the absence of specific evidence, to elevate what he found to be the skill and experience of the police officers who made identification of the vehicle number of the appellant’s car, namely SPC 3445 and SPC 46199, as giving them elevated or enhanced powers of accurate observation.

The submissions made on behalf of the respondent

34.Mr Liu assisted the court with an extensive written submission together with his oral submissions.

35.Of grounds 1(a) and (b), he submits that the magistrate did examine the case of the appellant separately although, given that this had been a joint trial and the evidence of identification of the appellant’s vehicle numberplates by the two witnesses, who also identified the numberplates of one and two of his co-defendants respectively, the magistrate inevitably had to have regard to the overall testimony.  In that context, he submits the magistrate was entitled to consider the issue of whether or not there had been a “frame up”.  Of ground 2, Mr Liu submits that, in light of the appellant’s plea of guilty to the “drink-driving” offence, the magistrate was entitled not to give the appellant the benefit of a positive direction in respect of propensity.  Of ground 3, it is submitted that the magistrate did not indulge in speculation as to the place at which the appellant joined the highway, rather he relied on the evidence of SPC 3445. 

36.Of ground 4, Mr Liu submits that, whilst there were discrepancies between the evidence of SPC 48758 and SPC 5652 as to the subsequent movements of the three vehicles that had stopped at the roadblock, the magistrate was entitled to rely on the evidence of SPC 48758 and to conclude, in particular, that the appellant had tried to flee from the roadblock in his vehicle.

37.Of ground 5, in particular the submission that there was no evidence of the experience of SPC 46199 that could justify the magistrate determining that he and the other police officers were skilled and experienced in observing vehicle numberplates of vehicles driven in similar circumstances, Mr Liu concedes that there was no such evidence.  Nevertheless, he submits that the magistrate was entitled to rely upon the identification of the appellant’s vehicle numberplates by SPC 3445 and SPC 46199.

A consideration of the submissions

Ground 1(a)

38.It is clear that in reviewing the evidence relevant to the appellant’s case the magistrate found it appropriate to have regard to the overall evidence that he had received in the joint trial.  The magistrate stated as much :

“5. The events the subject of trial started before D2 joined them.  It is appropriate to set out those events, so as to give the whole picture.”

Then, he reviewed the evidence that had been given by station sergeant Chan of his initial observation of the phalanx of speeding motorcars on Fanling highway and the steps that he took to put in place police officers as observers on what he anticipated, correctly, would be the route of those motorcars towards Tuen Mun.  Next, the magistrate adverted to the evidence of the appellant’s two co-accused to the effect that, while they accepted that they had driven on the highway from Fanling to the roadblock at Tuen Mun, they had not driven as alleged by the identifying police officers.

39.However, that the magistrate did go on to consider the appellant’s case separately is evidenced by the contradistinction he noted between the appellant’s case and that of his co-accused.  The magistrate noted :

“15.   D2’s case was slightly different.  He said that he was in a karaoke lounge in Yuen Long until just before 3 a.m. on the night in question.  Then he drove LE 835 from Yuen Long to Tuen Mun at proper speeds, but was caught in a roadblock.  His vehicle was not referred to by PW1 as being at the Fanling Highway end of this route.  First mention of it is at OP1 on Yuen Long Highway, south of Yuen Long.”

40.The magistrate did return to a joint consideration of the “defence case” of all three defendants at trial in the context of what he concluded was the “thrust of the defence” namely that the police officers were not only stating their identification of the vehicle registration numbers of vehicles driven by the three defendants but also,

“18.   … But essentially the defence were saying that the three drivers had been falsely accused by the police, and that it was, to use the vernacular, a frame-up by the police of three ordinary motorists who were caught up in events.”

After a long and detailed examination of the evidence in respect of that issue, as indicated earlier, the magistrate found that there was no such collusion between the police officers or a “frame up”.

41.At paragraph 26 the magistrate indicated yet again that he was conscious of the requirement to examine the case against each defendant at trial separately :

“The defendants were to be considered separately.  They did not stand or fall together.  D1’s interview, produced by consent, did not refer to the others and was not evidence in their cases.  Essentially, the prosecution had to prove the presence of each defendant’s car during the relevant part of the course of this incident, and that the defendant in question was racing (D1 and D3) or driving dangerously (all defendants).”

42.The crucial evidence against the appellant came from the identification of the registration number of the appellant’s motorcar at the observation posts at which SPC 3445 and SPC 46199 were stationed, together with the evidence of the two police officers at the roadblock at which the appellants car stopped.  Of the latter evidence, the crucial issue was whether or not the appellant was manoeuvering his car in order to escape from the roadblock.  Of course, the evidence at the trial of identification of SPC 3445 was relevant to all three accused, as was the evidence of the two police officers at the roadblock.  Accordingly, they had been subjected to cross-examination, on behalf of all three accused in respect of that evidence.  The evidence of identification of SPC 46199 was relevant to not only the appellant but also to one of his co-accused.

43.In my judgment, in those circumstances it was entirely appropriate for the magistrate to examine and analyse the evidence in the manner that he did reminding himself, as he did, that each defendant’s case had to be considered separately.  In the result, the magistrate accepted the reliability of the identification evidence of the registration number of the appellant’s motorcar of SPC 3445 and SPC 46199 concluding of the prosecution evidence as a whole that (see paragraph 55) :

“It proved unequivocally the presence of D2’s car at two observation points and with the speeding group at the roadblock.”

There is no merit in this ground of appeal against conviction.

Ground 1(b)

44.As indicated earlier the magistrate stated of the appellant’s case, in common with that of his co-accused, that not only did it involve an allegation that the identifying police officers were mistaken but also that they had been involved in an ex post facto “frame up”.  The magistrate expressed his concern that although in reality that was the allegation being made on behalf of the appellant it had not been put squarely to the police officers.  It had been the evidence of SPC 3445 and SPC 46199 that after they had observed that the vehicle registration number plate of what turned out to be the appellant’s car they had immediately noted that down on the palm of their hands.  Later, they saw the appellant’s motor car bearing that number stationary at the roadblock.  In cross-examination of those two witnesses, issue was taken with them of their ability to have observed the vehicle numberplate of the appellant’s motor car in the circumstances of speed, light and the presence of other vehicles.  Moreover, it was suggested to both witnesses that having come across the appellant’s motorcar stationary at the roadblock they had jumped to the conclusion that the vehicle was one that had gone past them earlier, that is at high speed in the company of other vehicles.

45.In those circumstances, it is entirely understandable that the magistrate should have considered the issue of whether or not there had been a ‘frame up’ by the police officers.  To do so in respect of the evidence adduced in respect of all three defendants was something that inured to the benefit of the appellant.  If any part of the prosecution case was so tainted, clearly the magistrate was indicating that would benefit his appraisal of the evidence in respect of the appellant’s case.

46.Accordingly, in my judgment there is no merit in this ground of appeal against conviction.

Ground 2 — the magistrate’s direction in respect of the appellant’s character

47.Of the issue of the appellant’s character the magistrate said (see paragraph 27) :

“D2 had no criminal convictions.  He did have the one traffic conviction for excess alcohol connected with this case, but I gave him the full benefit of his record for the purpose of his credibility.  I treated the propensity issue as neutral in his case.”

The effect of the magistrate’s direction to himself was not to give the appellant the benefit of a good character direction in respect of the limb of propensity.

48.In HKSAR v. Tang Siu Man (No.2) [1997-1998] HKCFAR 107 the Court of Final Appeal gave guidance to the approach to be taken in the circumstances that obtained in the appellant’s trial.  In the judgment of Litton PJ the issue was addressed thus (see page 133H-I) :

“Where a person with a clear record is before the court, but in the course of the trial, discreditable matters concerning him (or her) are revealed the judge again has a wide margin of assessment.  Dishonest conduct, to borrow an example from Thomas J’s judgment in R v Falealili [ 1996] 3 NZ LR 664, may be very relevant to credibility, but irrelevant to propensity towards sexual offences.  To simply give the ‘propensity’ direction alone may be appropriate-- or none at all.”

49.Given that the appellant had been convicted on his plea of guilty of an offence of driving his motorcar at the very same time that he was alleged to have committed the offence of dangerous driving it would have been an “insult” to common sense for the magistrate to have given himself a propensity direction in favour of the appellant.  In my judgment, the magistrate was clearly right to have regard to the appellant’s good character in respect of credibility only.

50.There is no merit in this ground of appeal.

Ground 3

51.It is clear that it was not capable of being established on the evidence where chainage plate 32.7 was in relation to OP 1, at which place SPC 3445 testified that he had observed the vehicle numberplate of the appellant’s motorcar.  Accordingly, it could have been before or after the intersection at which the appellant testified that he had joined the highway, namely at Tong Yan San Tsuen.  Having stated that he accepted as accurate the evidence of SPC 3445 that he had observed a vehicle with the numberplate of the appellant’s vehicle driving as the towards Tuen Mun at OP 1 the magistrate said that if that were true then the appellant must have joined the highway at an earlier intersection.  Of that he, noted that it had been the evidence of the station sergeant that a motorcar had come down the slip road at Shap Pat Heung Interchange at high speed to join the group of speeding motorcars.  Nevertheless, the magistrate made it clear that he could not and did not find that the motorcar observed by the station sergeant was that driven by the appellant.

52.I am satisfied that the magistrate was not indulging in speculation, as is submitted by Mr Jenkyn-Jones, but merely acknowledging that if OP 1 was before the Tong Yan San Tsuen intersection then, given his acceptance of the accuracy of SPC 3445’s identification of the appellants vehicle numberplate, the appellant must have joined the highway before he testified that he did and that there was other evidence consistent with a vehicle joining the other speeding vehicles at an earlier intersection and accelerating to join the speeding phalanx of motorcars.

53.There is no merit in this ground of appeal.

Ground 4

54.In his Statement of Findings the magistrate adverts to a conflict between the evidence of SPC 4758, positioned in the triangle formed by the low steel barriers and SPC 5652, at the driver’s wheel of the tow vehicle.  In a sketch, drawn by the latter, of the three vehicles after they had come to a stop, the appellant’s vehicle being the middle of the motor cars, the vehicle farthest from the tow truck and nearest to the police officer in the triangle of metal barriers was depicted as parallel to the road and not angled towards the outer lane of the highway.  The magistrate addressed the issue thus :

“41.   There was a conflict between PWs 4 and 5 as to whether D3’s vehicle had moved to the right.  PW5’s sketch (Exhibit 6) suggested not.  But PW4 was viewing from alongside the three cars.  He could clearly see their positions and hear their engines being revved.  If he was truthful, it was clear from his evidence that the three were waiting for passing vehicles to clear to enable them to escape through the gap.”

55.Of that, the magistrate concluded :

“42.   I was sure that he was truthful, and that the vehicles were attempting to get away.  This was a deliberate action and there was no innocent reason for so doing – none was suggested since they denied trying to leave the scene.”

56.In his evidence-in-chief, SPC 48758 described the arrival of the phalanx of speeding motorcars.  His colleague, SPC 5652 manoeuvred the tow truck to block the inner lane of the highway and switched on his red and blue flashing lights.  He estimated the speed of the approaching group of motor cars as being up to 150km per hour. As a result, he remained where he was, protected by the low steel barriers and a tree.  Three cars on the inside lane of the highway braked to a stop, the three vehicles positioning themselves turned to the right, that is towards the outer lane (see page 212B).

57.In cross-examination, SPC 48758 clarified the circumstances in which the vehicles had pulled to the right of the lane in which they were driving (see page 219S).

“Well, in fact it was a roadblock that caused these three vehicles to swerve right.”

58.Earlier in his evidence, SPC 48758 was allowed to speculate, or express an opinion, rather than giving a descriptive account of what he witnessed.  Of the drivers of the vehicle he said :

“They were getting ready to move into the second lane of Tuen Mun highway.” 

In this context, he testified that the drivers of all three vehicles were “pressing on the gas pedal.” (see 212Q).

59.However, whatever his speculation as to their intention he said that at this stage they did nothing.  In cross-examination, he clarified the circumstances obtaining at that time (see page 218F-G) :

“The rest were about 10 of them.  Some of them continued driving on the furthest outer lane to go away.  There were three to four vehicles behind these three, which were intercepted.  They reversed and got away from the further right lane.”

60.Then, he observed that : (see page 213G).

“… I saw the first vehicle, the private car EK708, start off and tried to move on to the second lane to leave.”

61.It was in these circumstances that his colleagues SPC 5652 manoeuvred the tow truck to block both the inner and outer lanes of the highway.  As a result all three cars remained where they were.

62.In cross-examination, SPC 48758 re-asserted his opinion that the drivers of all three vehicles were trying to leave the position at which they had stopped at the roadblock.  However, when asked to describe what the vehicles had actually done it became apparent that it was his evidence that only the first of the vehicles, that is the one nearest the tow truck, pulled into the second and outer lane (see page 229B-F) :

“Q.  Now, you have given evidence that all three of these vehicles-EK 708, LE 835 and LR 9033 tried or pulled towards the second lane of Tuen Mun highway?

A.    Yes.

Q.   Did any of them actually pull into the second lane?

A.    Yes.

Q.   Which vehicle pulled into the second lane?

A.    The first one, EK 708.

Q.   What about the other two?

A.    They still remained in the first lane.”

63.Thereafter, he denied the suggestion made by counsel for the 3^rd defendant, the driver of the vehicle with the registration number plate LR9033, had not attempted to pull into the second lane.  However, he gave no description of what manoeuvre he saw that vehicle performing.

64.In his evidence-in-chief, SPC 5652 testified that he had seen the group of vehicles approaching from a distance of around 200km per hour.  Of the vehicles in the inner lane he said (see page 256I-K) :

“… I saw that on the slow lane the first vehicle started to brake.  I also thought that this car tried to swerve to the right and tried to go into the lane on the right.  But there were also other cars travelling at high speed on the right lane that had caused this car-which was on the slow lane- unable to move out to the lane on the right.”

65.SPC 5652 and went on to describe the manoeuvres by the three vehicles in the inner lane of the highway :

“… the first three of them could not get out onto the fast lane, but they did not completely stopped.  They were stepping on the gas pedal and trying to get onto the lane on the right, but they were not successful.

Q. What happened to them next?

A. Then the first vehicle on the slow lane, as soon as it saw that there was a gap there, it quickly moved…-- dashed out from the slow lane onto the lane on the right towards the fast lane.”

66.SPC 5652 then went on to describe how he had blocked that progress by moving his tow truck out into the outer lane of the highway.  Of the other two vehicles behind the first vehicle he said :

“When the first vehicle started to move on to the right lane there were two private cars behind him.  They also followed suit and tried to move over to the right lane, because the first car was not able to go through they were blocked.”

67.In cross-examination, on behalf of the appellant, SPC 5652 was questioned about the view that he had of the appellant’s car, namely the middle of the three cars in the inner lane (see page 263G-I) :

“Q. Right.  Actually you didn’t see the movement of the second car because your view was blocked.

A. Well, most of the vehicle had been blocked, but I was able to see from the upper part of that vehicle as to whether it was swerving left or right.”

68.In cross-examination, on behalf of the 3^rd defendant at trial SPC 5652 accepted that in his witness statement of 3 January 2005 he had not described the third vehicle, with the registration number plate LR 9033, pulling into the second lane.  Furthermore, he accepted that he did not depict any such manoeuvre by the third car in the sketch, which had been led into evidence as exhibit P6. In the result, SPC 5652 accepted that he might have been mistaken about the manoeuvring of the third vehicle (see page 265T-266A) :

“So, bearing in mind what you recorded nearer the time in your sketch and what you recorded nearer the time in your statement, you accept that you may have been mistaken in giving your evidence that the third vehicle, LR 9033, pulled into the second lane?  You accept you may have made a mistake about that?

A. Well, I agree.”

69.In his evidence-in-chief, the appellant had said that he was driving within the speed limit on the inner lane of the Tuen Mun highway when he came across the tow truck with its flashing lights manoeuvring into his lane.  As a result he said he stopped.  After a while a police officer came to his motorcar and at the officer’s request he turned off the ignition of the car and presented his identity card and driving licence (see page 244 A-S). In cross-examination, although the appellant was questioned about the circumstances in which he had stopped the vehicle at the roadblock, the appellant confirming that there was another car between him and the stationary tow truck, it was never suggested to him that having stopped his motorcar he had revved up the engine let alone that he had manoeuvred that vehicle into the outer lane and tried to escape.  No suggestion whatsoever of that kind was made by counsel for the prosecution.

70.In light of the concession made by SPC 5652 in respect of the 3^rd defendant at trial, but made only in cross-examination, in my judgment it would be unsafe to rely on his evidence in respect of the manoeuvring of the vehicle immediately in front of the third car, namely the one driven by the appellant.  Indeed, the magistrate stated that he did not rely on SPC 5652’s evidence but preferred that of SPC 48758 in respect of the manoeuvring of the third vehicle.

71.In my judgment, there was an insufficient evidential foundation for the magistrate to have determined that he was satisfied that the appellant was attempting to escape from the roadblock.  No doubt, the magistrate’s task of assessing the evidence was made more difficult by the loose questioning of SPC 48758 and SPC 5652, in which expressions of opinion or speculation were permitted of the witnesses.  It is clear, that the magistrate placed considerable reliance on his factual finding of attempted escape by the appellant and the co-defendants from the roadblock.  At paragraph 42 of the Statement of Findings he stated :

“Their attempt to escape was a reflection of their realisation that they had committed an offence by the manner of their driving and their desire to avoid prosecution for it and it showed that they were not innocent motorists who were inadvertently caught up in events.”

Ground 5

72.In determining that SPC 3445 and SPC 46199 had made accurate identifications of the vehicle numberplates, including that of the appellant’s vehicle, the magistrate said of them that they were “skilled and experienced observers”.  Furthermore, of the fact that both of them had identified the vehicle numberplates of the appellant’s motor car he said that (see paragraph 51) :

“… provided mutual support for the correctness of their evidence as to his car number ...”

73.Earlier in his findings the magistrate had said of SPC 3445 :

“It is to be noted that PW2, like the other police officers, was not a casual observer.  He was a traffic officer with 10 years experience in the field.  He said that he had been responsible for over 3000 prosecutions based on laser evidence.  His job therefore involved regular observation of vehicles and their speed.  He, like the other officers, was used to concentrating on the crucial feature, namely the registration number of apparently offending vehicles travelling at speed.  He was highly qualified to give estimates as to speed.”

74.In respect of SPC 3445, the magistrate’s description of his experience was accurate (see page 165J-L and 174R-T).  In light of that evidence, in my judgment the magistrate was entitled to infer that SPC 3445 was used to concentrating on the numberplates of vehicles travelling at speed.  However, in respect of SPC 46199 no evidence was led of his experience other than that on the night in question he had been the driver of a police vehicle and that he was attached to a “task force, Traffic, NTN.”

75.Clearly, that evidence in respect of SPC 46199, with no more detail whatsoever, did not support the magistrate’s finding that he was a “skilled and experienced observer”, in the context of his ability to accurately record vehicle numberplates in the circumstances of the speed, light and time of that observation.

76.It seems to me that the fact that the magistrate found it necessary to advert to the skill and experience of the two officers as observers, in determining that they made accurate observations, was an acknowledgement of the considerable difficulties that any observer was placed in making an accurate identification of the vehicle numberplates.

77.In all the circumstances described earlier and, in particular, having regard the fact that the available evidence did not support the magistrate’s determination of SPC 46199 as a skilled and experienced observer of vehicle numberplates in these circumstances, together with the fact that, importantly, he had used his findings in respect of one witness as mutual support of the other in my judgment overall doubt arises in respect of the accuracy of the identification of the appellant’s vehicle numberplates.

Conclusion

78.In the result, in light of my concerns in respect of the matters that, in my judgment, the magistrate erred in taking into account in determining that the two police officers had made correct and accurate identifications of the vehicle registration number plate of the appellant’s vehicle, together with the magistrate’s finding that the appellant had tried to escape in his vehicle from the roadblock after he had stopped his motorcar, which finding I find unjustified on the evidence, and the significance attached thereto by the magistrate I am satisfied the appellant’s conviction is unsafe.  Accordingly, I quash the conviction and the sentence of imprisonment imposed on the appellant.

Mr Liu Yuen Ming, SGC, of Department of Justice, for HKSAR

Mr Toby R.W. Jenkyn-Jones, instructed by Messrs Ip Kwan & Co., for the Appellant