HKSAR v. Hui Man Tai

CACC 334/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 334 OF 2007

(ON APPEAL FROM DCCC NO. 903 of 2006)

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Before:   Hon Stuart-Moore VP, Stock JA and Beeson J

Date of Hearing: 22 July 2008

Date of Judgment: 22 July 2008

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J U D G M E N T

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Stuart-Moore, VP (giving the judgment of the Court):

Background

1.On 14 September 2007, following a trial before District Judge Mackintosh, the applicant, a 30-year-old police constable attached to the Traffic Division, was convicted of conspiracy to defraud, contrary to Common Law and punishable under section 159C(6) of the Crimes Ordinance, Cap. 200, for which he was sentenced to 30 months’ imprisonment and disqualified from driving for 18 months pursuant to section 69(1)(h) of the Road Traffic Ordinance, Cap. 374.  This now comes before us as an application for leave to appeal against conviction and sentence.

2.The charge on which the applicant was convicted related to one other conspirator apart from himself, namely, Ng Chun-ming, Chris (D1) who was also a police officer in the Traffic Division.  It was particularised in terms that they:

“… on divers dates between the 1st day of June, 2005 and the 17th day of February, 2006, in Hong Kong, conspired together to defraud such drivers who were driving their vehicles on the roads on a number of occasions in Hong Kong (‘the said drivers’) by:-

(1) dishonestly and intentionally causing a vehicle with registration number HA891 (‘the vehicle’) to collide with the vehicles which were driven by the said drivers; and

(2) dishonestly demanding for monetary compensations from the said drivers in respect of damage caused to the vehicle as a result of the collisions;

thereby induced and caused the said drivers to hand over various sums of money in cash to the said Ng Chun-ming, Chris and/or the said Hui Man-tai.”

3.In short, the allegation was that the applicant agreed with D1 that while one of them remained the passenger, the other would drive a Saab motor car in such a way that it deliberately collided with other vehicles on public roads.  This was done so that they could then demand compensation from the drivers of the other vehicles involved.  No less than nineteen incidents of colliding with other vehicles causing minor damage were involved during the 8½ months covered by the conspiracy.  Of these, six were at the Kai Leng roundabout in Sheung Shui and, in Tsim Sha Tsui, five were in Canton Road and three were in Austin Road.  These were specially selected locations where cars needed to change lane so that when the drivers did change lanes they would feel responsible for the accidents they assumed they had caused.  Two of the staged accidents at the Kai Leng roundabout were within an hour of each other on 25 July 2005 and, on 6 September 2005, two more accidents occurred at the same location within thirty-five minutes of each other.  Four of the accidents in Canton Road occurred between 2 February 2006 and 17 February 2006 and in Austin Road, two of the accidents were on consecutive days, 25 January 2006 and 26 January 2006.

4.The same Saab motor car, which had been cheaply purchased, was involved in every incident.  The applicant was its registered owner and the prosecution alleged that both the applicant and D1 were present in the car on every occasion.  Most of the victim-motorists involved in these accidents paid in cash and ‘settlement notes’ were written out to record the payments they had made.  On other occasions, when no settlement could be reached, police were called to the scene and a formal road accident report would be made on a form ‘Pol 284A’.

5.Twenty-one prosecution witnesses in relation to the scenes of seventeen of the accidents in this series, were called.  A combination of their testimony and the documentary evidence which was also assembled established a strong case against the applicant and D1 of their presence at many of the accidents.  The judge concluded that out of the nineteen incidents, which were given numbers for ease of reference, D1 had been conclusively identified as being present at twelve, namely, 1, 4, 6, 9, 10, 11, 12, 14, 15, 17, 18 and 19.  Of these, he had been the driver on eight occasions.  The applicant was found by the judge to have been present on eight occasions, namely, in incidents 1, 2, 3, 4, 5, 12, 13 and 16, usually because of settlement notes he had signed afterwards.

6.The judge also found that direct evidence established the presence of both conspirators at the scene of incidents 1, 4, 9 and 12.  However, the judge felt able to draw an inference that they had in fact been present together at all of the incidents.  Referring to the applicant as D2, he gave the following reasons for this:

“(a)    there were in all cases where witnesses were called, two men in HA891;

(b)    there is no evidence that anyone other than D1 and D2 had any connection with HA891;

(c)  D1 had the key, the registration document, the insurance certificate and two CDs of photographic images of some of the collisions in question (Exhibits 78 and 79) in his own car -- admitted facts, Exhibit 87, and Exhibit 106;

(d)  D2, the registered owner of HA891, was in possession, in the car, in his locker or elsewhere, of settlement notes in the 11 out of the 19 cases.

(e)  records of an Excel spreadsheet from an IBM computer (Exhibit 56) relating to expenses records of HA891, show that compensation less expenses left a surplus of $7624 and that ‘received by each person’ was $3812, i.e., an equal split; these records referred expressly to 16 of the 19 incidents (numbers 1 to 16 on the schedule) and it is manifest that they related to the two defendants and to no one else. I note here that though it was opened as being D2’s computer (paragraph 11 of the opening) and assumed to be D2’s computer (page 22 of Mr Pannu’s closing submission for D2) there is, so far as I can see, no evidence at all as to the origin of the computer. I daresay this was an oversight but, if so, it is one which ought not to have occurred and I will not infer the ownership of the computer.

29. These matters combined leave me with no doubt that at all these incidents, D1 and D2 were present, either as driver or passenger.”

7.Neither of the conspirators gave evidence at trial but their defence was put before the court on the basis that the collisions, which it was said were close in time by pure coincidence, were not their fault.  On the contrary, they were entirely the fault of the other drivers and it was suggested that these were legitimate claims for compensation as most of the other drivers had agreed to pay compensation.

8.However, the judge described how this remarkably lengthy run of collisions finally came to light and how it was anything but coincidental.  In relation to the last two collisions, both in Canton Road, the judge said:

“38.   … In incident 18, the driver had passed HA891 which was proceeding very slowly, at only about 10 kph. The taxi went ahead at about 30 kph, and moved to the left, though the driver believed that he remained in his own lane; and he was then struck by HA891 with a light impact. He saw the offside indicator of HA891 was broken but could find no glass in the road and was suspicious.  He therefore refused to pay compensation. I note that a police officer (admitted facts, Exhibit 106, page 674) also checked for glass in the road and could find none. The driver in this case was present two nights later when another taxi (incident 19) was hit in the same way, and he spoke to the driver of that taxi who also did not pay compensation. In that last incident, the driver saw HA891, which he regarded as being at a safe distance behind him. Again, he was moving slowly as he pulled left to overtake the line of stationary taxis and again he was struck at low speed. He heard a car horn but there is no evidence as to where from. In none of these cases were there sudden movements by the taxis.

39. The police officer who attended the scene of incident 18 on the 15th February also attended incident 19 on the 17th February. He recognised D1: ‘You seem to be the fellow two nights ago’. D1 said, ‘Yeah, I am so unfortunate’. This appears in the admitted evidence. The officer said he found the damage to be the same between the two incidents. D1 said the damage had been repaired between the incidents and that he had the invoices at home.”

9.The judge concluded that the way the accidents were caused, by whoever was driving at the time, was by luring the victim-drivers into believing that it was safe to make a lane change and then, as they did so, by accelerating forward to make contact with the other car.  The judge was in no doubt that the conspirators knew that the drivers of the other cars would need to change lanes at particular locations and that they had positioned themselves at very slow speeds to give “a clear but false impression to the other drivers that they were free to make their move”.

10.The judge also summarised the evidence of how the alleged conspirators behaved immediately after the collisions.  On every occasion, two men got out of the Saab and often the passenger would begin to take photographs.  Their apparent confidence and professionalism, coupled with the fact that the other driver had been the lane-changer, provided the reason for most of the other drivers to settle the claim for compensation then and there.  There was also, as the judge observed, a further reason for taxi drivers, who were the majority of the victims of this fraud, to settle because they:

“53.   … were anxious for obvious reasons to avoid a time-consuming police investigation and the possibility of being charged and going to court with the uncertainties as to the outcome. Taxi drivers, as professional drivers, are naturally highly protective of their driving licences. Two of them also described how they have an insurance deposit of $6,000, used as the first fund from which any damage has to be paid, which they felt compelled them to settle rather than dispute liability.”

The judge continued:

“54.   I am in no doubt that these other drivers were under manifest pressure to settle given all the circumstances. Some were encouraged to settle by police who attended the scene; and, of course, those who candidly accepted an element of fault for not seeing the other vehicle when they change lanes, were unaware of the general pattern which we can now see on the evidence of regular and very similar collisions. Only PW18 was given a hint of that and, of course, he refused to pay.

55. I am satisfied that the compromise of the defendants’ claims for compensation in no case undermines the conclusion that the collision was the result of a deliberate act by the driver of HA891. …”

Grounds of appeal on conviction

11.The two grounds of appeal against conviction were argued by Mr Pannu on the applicant’s behalf because Mr Lok SC felt either unable or unwilling to do so.  It was submitted that the judge had erred in fact and in law when arriving at the conclusion that there was sufficient evidence that the applicant and D1 were present at each and every collision.  The particulars of this ground amounted, in short, to a complaint that as the judge had found that there was direct evidence of their complicity in only four of the collisions, the judge had drawn an erroneous inference that they were involved in the whole series.  Furthermore, on the 2^nd ground, where it was argued that the judge had “ignored probative evidence which showed that the applicant’s mindset may [have been] such that he had a genuine [belief in] a ‘claim of right’”, and it was submitted that support for this proposition was to be found in the number of drivers who had collided with the Saab actually admitting that they bore some responsibility for what had happened.

12.It was contended also that the judge had been wrong in giving any weight to the spreadsheet (Exhibit P56) to which we have already referred when setting out his reasons for deciding that the evidence overall established that the applicant was present with D1 at every collision.  However, dealing with this aspect straightaway, the details on the spreadsheet could only have been referable to the collisions in the present case ending, as it did, with the figures:

“ Total expenses	18,276
Total compensation	25,900
Total amount	7,624
Received by each person	3,812”

13.It is quite plain that the profit from the collisions from the compensation paid, after the expenses had been subtracted, was $7,624 of which each conspirator’s ‘share’ was $3,812.

14.The spreadsheet contained figures that gave rise to no other sensible inference than the one drawn by the judge.

15.The claim of right which it was suggested in the 2^nd ground the judge had ignored would only have had relevance if the applicant and D1 had not deliberately caused the accidents in the first place.  The judge found that they had done so and, in these circumstances, no claim of right ever arose.

16.The judge gave close and careful attention to the detail of this case and his conclusions were amply justified by a wealth of evidence, not only against D1 but also the applicant, that both of them had been at the scene of every accident.

Conclusion on conviction

17.The application in relation to conviction was misconceived and it is dismissed.

Sentence

18.The basis of the judge’s reasons for imposing a 30-month sentence on the applicant is contained in a passage from the Reasons for Sentence (where the applicant is referred to as D2) which reads:

“1. Over a period of about 8 months, from 2005 through to early 2006, the two of you pursued a conspiracy between you, undertook a campaign of deliberately engineering minor road traffic accidents in order to extract compensation from the other drivers. It was a conspiracy to defraud those other drivers.

2.   You obtained an old car for $7,600. It was, as I said in my reasons for verdict, obtained by the two of you, though it was registered in your name, D2. That registration took place on 21 June 2005, three days before the first collision. It is obvious that you bought the car for the purpose of executing your conspiracy.

3.   You used that car to stalk vulnerable motorists. I put it in those terms because it is overwhelmingly clear on the evidence that you loitered in places where you knew other vehicles would need to change lanes, and you waited for suitable victims.

4.   This is particularly so with the four incidents near to the Gateway in Canton Road, when you knew there would be a line of parked taxis in the middle of the night, so that other taxis were likely to need to move left to pass them. In one of those cases you were seen to be moving very slowly as a taxi went past you so that you could come up behind it to cause a collision when it pulled out.

5.   Time and again facts of these incidents lead to clear and unequivocal conclusion that you lured other drivers into thinking that it was safe to move lanes, and then you bumped them.

6.   In incident 5, in Shanghai Street, you drove slowly in the middle lane. You could see that the taxi which passed you on your right and needed to pull left to overtake a lorry parked on the right-hand side of the road: and you pounced on it as it did so.

7.   In the Kai Leng Roundabout cases, you knew that the other cars which you were shadowing were going to have to pull off at some point, and therefore that they had to cross the outer lane on which you had positioned yourself: again you waited and you pounced.

8.   In incident 13, in Austin Road, you drove very slowly. A taxi passed you, indicating it would move left to avoid a right-hand filter lane where there was stationary traffic and you sped up and collided with it.

9.   In incident 14, stationary at lights, in front of the yellow-box junction in Austin Road, you could see that the taxi to your right wanted to pull into your lane when the lights changed because he was indicating. When the lights went green, you did not move until he had started his manoeuvre and then you bumped him.

10. These are only examples, but you chose the victims carefully. They were lane changers. They were people with the primary duty of ensuring that it was safe to move. You trapped them into thinking that it was. But in so doing, you were selecting what you knew to be vulnerable victims. It was necessary to ensure that they would feel an obligation to pay money to you as compensation in the way that motorists in Hong Kong do after damage-only collisions.

11. You achieved that partly by selecting the locations, as I have described, but also by selecting taxi drivers as the victims in 12 out of the 19 cases. Taxi drivers do not want to risk a charge of careless driving, to risk points on their licence. Neither do they want to spend time dealing with police investigations. They were easy prey until one of them resisted and informed another victim on the next night.

12. I appreciate that these were not forceful collisions, but any collision can have unforeseen consequences and in that sense it puts people and property at risk. And you know all these things particularly, because you are police officers. I accept that such knowledge goes wider simply than police officers, but you must have had a particular understanding of the vulnerability of certain classes of drivers and of particular situations, because you were traffic officers. You knew how to exploit that knowledge.

13. It is also evident that when you found a good location, such as the Kai Leng Roundabout or Canton Road, you used it as fully as possible. You were able to use your knowledge and your familiarity with these situations to bring pressure to bear on those who were reluctant to pay or who were not offering enough. You generally engaged in photographing the scene. You presented yourselves as confident and self-assured. You made it plain that the lane changer was in the wrong.

14. You were able to do so because you were police officers, familiar with these sorts of situations and with handling other motorists. That is one of the reasons why I regard your status as police officers, particularly as traffic police officers, as an aggravation of this offence. But your status is an aggravation for another reason too. Your job was to uphold the traffic laws to help prevent accidents and to promote road safety. So the deliberate creation of these minor accidents to serve your own ends was a wicked distortion of your duty as police constables.

15. The public rightly supports its police force, but its confidence in the police is bound to be undermined by such gross misconduct. You are a disgrace to the police force you have served and to the public who have placed confidence in you.

16. You took money off these people. Perhaps it was relatively small amounts to some, but it must have been a severe blow to a taxi driver paying out $1,000 to $2,000 or more, a sum which would have more than wiped out his night’s earnings.

17. I note that you were, as part of your dishonesty, claiming money for damage done in other collisions. Incidents 6 and 7 are examples, as are 9 and 10. In incident 18, no glass was found for the indicator which you said was damaged, either by PW17 or the police officer who attended. I note that the very same indicator was damaged the night before.

18. It is not just the money which is the measure of the seriousness of this case. There are other factors as well, which I have described. And you really have no mitigation. Your status as police officers, who have otherwise properly served the community, is of no value given your use of your professional skills to further these offences. …” 

19.It was submitted by Mr Lok, now leading Mr Pannu, that the sentence imposed by the judge was manifestly excessive.  One point taken was that as the applicant was not on duty when the offences occurred, it was wrong to have treated his position as a police officer as an aggravating feature.  It was submitted that, in any event, the collisions were trivial and the sums paid in compensation were small.  It was contended also that in part at least, arising from comments the judge went on to make when disqualifying the applicant from driving for 18 months (a ban that, as the judge said, would have ended by the time the applicant was released from prison) the applicant had been made a victim of double-punishment in the sense that although not convicted of dangerous driving he had effectively been sentenced for it.

20.This application, like the earlier one we have dismissed, was utterly misconceived.  Police officers in whom the public place trust to uphold the law, but who themselves break the very laws they are empowered and entrusted to uphold, have to be made examples in terms of deterrent sentencing so that others will not be tempted to follow along similar lines and so that public confidence will be maintained.

21.It is plainly beside the point, on the particular facts of this case, whether the applicant was on or off duty at the time he engaged in this conspiracy and the judge had correctly identified the approach to be taken.

22.We reject Mr Lok’s argument that this was in reality a case of a conspiracy to drive dangerously which, if accepted, should have carried a maximum sentence of 3 years’ imprisonment.  It was no such thing.  The conspiracy was to cause collisions with cars being driven by other motorists so that compensation could be claimed from them.  Of course, there was an element of dangerous driving involved in the offences but that was incidental to the main purpose behind their dishonest scheme.

23.This application is dismissed.

Loss of time

24.Having heard from both Mr Lok and Mr Pannu about whether an order for loss of time was appropriate, we made an order pursuant to section 83W of the Criminal Procedure Ordinance, Cap. 221, that 5 months of the time the applicant has spent in custody will not count towards the sentence he is presently serving.

Costs

25.An order for the respondent’s costs was not resisted and we made an order that the applicant should pay the respondent’s costs which are to be taxed if not agreed.

Mr I C McWalters, SC, DDPP, of the Department of Justice, for the Respondent.

Mr Peter Pannu, instructed by Messrs K B Chau & Co., for the Applicant (re: conviction).

Mr Lawrence Lok, SC and Mr Peter Pannu, instructed by Messrs K B Chau & Co., for the Applicant (re: sentence).