HKSAR v. KOK CHUN WAI CAMPION AND ANOTHER

HCMA 527/2016

[2018] HKCFI 1148

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 527 OF 2016

(ON APPEAL FROM TWCC 501 OF 2016)

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J U D G M E N T

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BACKGROUND

1.  Kok Chun Wai, Campion (the 1^st Appellant, hereinafter referred to as “A1”) and Lee Tak Yee (the 2^nd Appellant, hereinafter referred to as “A2”) were the first and the second defendant in the trial.  Together with the third defendant, Liu Shing Choi (hereinafter referred to as “D3”), they were jointly charged with one count of motor racing, contrary to section 55(1) of the Road Traffic Ordinance, Cap 374 (Charge 1). In addition, each of the trio faced a separate charge of using a vehicle without third party insurance, contrary to sections 4(1) and 4(2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap 272 (Charges 2 - 4 respectively).

2.  D3 pleaded guilty to Charges 1 and 4 laid against him.  A1 and A2 pleaded not guilty to the charges they faced respectively. Their case was tried before Deputy Magistrate Mr Jim Chun-ki (“the Magistrate”).

3.  The particulars of Charges 1, 2 and 3 read:

(1)   Charge 1

“A1, A2 and D3 were charged that on the 18^th day of September 2015 between Chainage 8.3N Tsing Kwai Highway and Cheung Tsing Tunnel near emergency exit no. 4, New Territories, in Hong Kong took part in a race or trial of speed on a road at the above location between vehicles to which the Commissioner had not given his consent in writing.”

(2)   Charges 2 and 3

“[A1 and A2 respectively] was charged that on the 18^th day of September 2015 between Chainage 8.3N Tsing Kwai Highway and Cheung Tsing Tunnel near exit no. 4, New Territories, in Hong Kong, used a vehicle namely private car displaying {MS 8813 (Charge 2) and TG 4154 (Charge 3)} on a road when there was not in force in relation to the user of the vehicle such a policy of insurance or such a security in respect of third party risks as required under the Motor Vehicles Insurance (Third Party Risks) Ordinance.”

4.  On 18 August 2016, the Magistrate convicted A1 and A2 after trial.  He called for background reports of A1 and A2 before sentence and remanded them in custody.  On 9 September 2016, the Magistrate sentenced A1 and A2.  In respect of Charge 1, A1 and A2 was each sentenced to 50 days’ imprisonment and disqualified from driving vehicle for a period of 12 months until they have completed a driving improvement course.  For Charges 2 and 3, A1 and A2 was respectively fined $5,000 and disqualified from driving vehicle for a period of 12 months.

5.  Both A1 and A2 filed their notices of appeal against conviction and sentence.  On 19 September 2016, A1 and A2 applied and were granted bail pending appeal.  By then, A1 and A2 had each served a 32 days’ imprisonment term.

6.  The trial was conducted in Chinese and both appellants were represented by counsel.

FACTS NOT IN DISPUTE

7.  Two sets of admitted facts, P1 and P1A, were admitted in the trial.  Facts admitted, include, inter alia, the following:

(1)   Private cars MS 8813 (“V1”), TG 4154 (“V2”) and FN 438 (“V3”) were driven by A1, A2 and D3 respectively at the material time; and Sgt 54751 was the driver of unmarked police vehicle NX 4296 (“unmarked police vehicle”).

(2)   At about 2200 hours on the offence date, V1, V2 and V3 and the unmarked police vehicle were travelling from Tsing Kwai Highway to Cheung Tsing Tunnel near the Emergency Exit No 4, New Territories.

(3)   V1, V2 and V3 were later intercepted inside Cheung Tsing Tunnel; thereafter, A1 A2 and D3 were respectively arrested and cautioned for the offences of “motor racing” and “dangerous driving”.

(4)   The production of various insurance policies taken out by A1 and A2.

(5)   Passengers were on board V1 and V2 at the material time.

(6)   The identity of A1 and A2 and that they both had a clear criminal and traffic record.

THE PROSECUTION CASE

8.  I adopt largely the summary of the prosecution case as summarised by Ms Ko in the Respondent’s Written Submissions.

9.  Two witnesses testified for the prosecution: Sgt 22356 (“PW1”) who operated the ProVida System on the unmarked police vehicle and Sgt 54751 who drove the unmarked police vehicle.  Their evidence was supported by the video cameras installed respectively in V1 (P7), V2 (P10) and the ProVida System in the unmarked police vehicle (P11).  In gist, at the material time, V1, V2 and V3 driven by A1, A2 and D3 respectively were driving at a high speed on the 4^th lane passing the Chainage Marker 8.3N on Tsing Kwai Highway, causing the unmarked police vehicle to give chase.

10.  During the incident, the driving manner of V1 to V3 was described as follows:

(1)   V1 to V3, tailed from behind with each other at a high speed with V1 taking the lead, V2 tailing after V1 and V3 tailing after V2.

(2)   They were travelling at a speed exceeding 130 km/hour when the speed limit of that road was 80 km/hour, until V1 was blocked by the vehicles and they had to slow down, yet still travelling at a speed of around 90 km/hour.

(3)   When the number of lanes changed from four to three from Chainage 10.0N, V1 accelerated its speed and cut lane from the 3^rd left lane to the 1^st left lane, during which V1 to V3 kept taking over other vehicles travelling on the 2^nd and the 3^rd lane.

(4)   At one point, all three vehicles had accelerated their speed to around 140 km/hour.

(5)   The three vehicles were intercepted upon entry into Cheung Tsing Tunnel.

THE DEFENCE CASE

11.  A1 and A2 each exercised their right not to give evidence and called no defence witness.

12.  In the final submissions, defence counsel who represented A1 and A2 submitted that the vehicles were not engaging in a motor racing for the following reasons:

(1)   The vehicles were simply following each other.

(2)   At one point V2 had the opportunity to accelerate to overtake V1 but it failed to do so.

(3)   The evidence was insufficient for the Magistrate to draw the only irresistible inference that the vehicles were engaging in motor racing.

THE KEY ISSUE

13.  The Magistrate said at paragraph 12 of the Statement of Findings that the main issue was whether the prosecution was able to prove beyond reasonable doubt A1, A2 and D3 were found to be having a motor race or trial of speed at the material time.

THE MAGISTRATE’S ANALYSIS AND FINDINGS

14.  The Magistrate found the prosecution witnesses to be reliable and unshaken under cross-examination.  The Magistrate found that the evidence of PW1 and PW2 was supported by the ProVida video (P11).  The Magistrate noted that defence counsel, in his closing submissions, had not asked the court not to accept the evidence of PW1 and PW2.  Having considered the evidence of PW1 and PW2 respectively, the circumstances of the case and the submissions by counsel, the Magistrate found PW1 and PW2 to be honest and reliable witnesses.

15.  The Magistrate made his findings and highlighted four particular points of time as follows:

(1)   At 0222 hours (before the racing started), P10 captured V1 overtaking V2 and V1 to V3 were travelling at high speed, weaving through vehicles along the way and chasing each other, including repeatedly and unceasingly cutting lanes, weaving through traffic on the road to find a lane with less blocking for purpose of accelerating their speed.  The unmarked police vehicle tailing V1 to V3 had to travel at over 100 km/hour most of the time in an attempt to maintain a constant distance with the trio, at the time the speed limit of the road in question was 80 km/hour.  (Paragraph 21(1) of the Statement of Findings)

(2)   The speed detection system shown on P11 showed that the highest speed of V1 to V3 was at around 144 km/hour.  (Paragraph 21(2) of the Statement of Findings)

(3)   Between 0400 and 0412 hours, V1 to V3 tried to find space to overtake each other, and at 0417 hours, their positions switched from the original order of V1, V2, V3 to the order of V1, V3 and V2. (Paragraph 21(2) of the Statement of Findings)

(4)   V1 and V2 had cut from the 1^st left lane into the 3^rd left lane, having overtaken a few vehicles, which were moving relatively slowly on the 2^nd left lane, whereas V3 travelled on the 1^st left lane all along.  At one time, A1 cut from the 3^rd left lane into the 1^st left lane at high speed and got in front of V3, causing V3 to brake abruptly in order to slow down. Afterwards, V2 also cut from the 3^rd left lane into the 1^st left lane to get behind V3, following V3.  (Paragraph 21(3) of the Statement of Findings)

16.  Defence counsel submitted in his closing submissions that the vehicles were not racing for the following reasons: (i) the vehicles were simply following each other; (ii) despite having the opportunity, V2 at one point failed to accelerate to overtake V1; and (iii) the evidence was insufficient for the Magistrate to draw the irresistible inference that V1 to V3 were engaging in motor racing.  The Magistrate rejected the submissions.  He pointed out that V1 to V3 were interacting to each other, for most of the time, the three vehicles were tailing from behind with each other.  The Magistrate noted from P8, when V1 changed lane, it mostly cut into lane with less traffic, V2, which was behind V1, did not accelerate at the lane where V2 was to take over V1, instead, V2 followed V1 and changed to the lane that V1 had cut into.

17.  The Magistrate found that the three vehicles had been looking for space to travel at high speed and take over.  The Magistrate referred to HKSAR v Leung Wai Wo & others, HCMA 825/1999 and The Queen v Chan Chiu Pang & others, HCMA 265/1991, and pointed out the fact that there was no overtaking did not mean the vehicles concerned were not in a motor racing, all the circumstances had to be considered by the court, including but not limited to: (i) the speed of the vehicles; (ii) whether they had overtaken/attempted to overtake; (iii) the interaction and distance between the vehicles; (iv) the way and the manner of the vehicles were driven; and (v) a common sense approach should be taken by the court. 

18.  The Magistrate pointed out from the video clips produced, it can be seen:

(1)   V1 to V3 had been travelling at high speed at close distance.

(2)   On many occasions, they had cut lanes continuously to look for lanes with less traffic which block their way, so that they could accelerate and travel at high speed.

(3)   The way V1 to V3 was driven and the manner they were driven, including the number of times that they changed lanes at close distance and crossing several lanes shows that they were looking for space to attempt to overtake amongst themselves.

(4)   The positions of the three vehicles had changed from the original order of V1, V2, V3 to the order of V1, V3, V2.

(5)   The dangerous moves between V1 to V3 between 0400 and 0417 hours seen in P10 show that they were overtaking or preparing to overtake in order to continue to engage in the motor racing.

19.  The Magistrate, after viewing the three video clips and taking into consideration all the circumstances, found that the reasonable inference he could draw was that A1, A2 and D3 were engaging in a motor race or trial of speed at the material time, there was no other reasonable explanation that he could think of.

20.  The Magistrate found the respective charges proved against A1 and A2 beyond reasonable doubt.  He convicted A1 and A2 of Charge 1, A1 of Charge 2 and A2 of Charge 3.

MITIGATION

21.  Counsel for A1 and A2 told the Magistrate in mitigation that:

(1)   A1 was aged 37, married and has an 8-month old son, he owned his own company and earned around HK$30,000 (commission not included).

(2)   A2 was aged 35, married, employed as a hair-dresser.  He was a bankrupt person.

22.  The Magistrate called for background reports of A1 and A2 before sentence.

23.  At the adjourned hearing, the contents of the reports were confirmed by the Appellants and mitigation letters were placed before the Magistrate.  Both appellants, who are first offenders, have good backgrounds with family support.

REASONS FOR SENTENCE

24.  The Magistrate noted that both appellants showed no remorse in the background reports.  Both Appellants denied they were motor racing at the material time.  The Magistrate considered that the case called for immediate custodial sentence and he found no exceptional circumstances to suspend the sentence.  The Magistrate referred to the case The Queen v Chan Chin Pang and others and took into account the facts as found by him, the number of vehicles involved, the driving manner and attitude.  He found that A1 and A2 had acted selfishly in disregard of the safety and interests of other road users.  He took the view that a deterrent sentence is warranted.  For Charge 1, the Magistrate adopted a starting point of 56 days’ imprisonment, and reduced it to 50 days because of their clear record.  For Charges 2 and 3, A1 and A2 were fined HK$5,000 respectively.  The Magistrate also disqualified and prohibited A1 and A2 from driving for a period of 12 months for the two charges each was convicted.

GROUNDS OF APPEAL

Against Conviction

25.  In respect of Charge 1, Mr Reading SC together with Mr Lee argue two grounds.

1. The Magistrate erred in law in concluding that racing is the only reasonable inference to be drawn from the evidence.

26.  Under this ground, it is submitted that the video recordings in the trial show that the Appellants’ vehicles travelling behind each other at an excessive speed, but these facts were equally consistent with the Appellant simply following each other, rather than competing in a race.

27.  It is also submitted that the Magistrate failed to consider the inherent probabilities in the prosecution case, which Mr Reading identifies as:

(1)   that A2 did not overtake A1 even when the opportunity presented itself and A2 merely followed A1 as shown in the video footage;

(2)   that the driving manner of A1 and A2 was such that there is an absence of clear competition as between A1 and A2;

(3)   that the background circumstances of the case, bearing in mind the time, location, and the presence of passengers on the vehicles, were equally consistent with them not engaging in a race.

2. In all the circumstances the convictions were unsafe and unsatisfactory.

28.  In respect of Charges 2 and 3, it is submitted that the convictions for Charges 2 and 3 are dependent on the finding that A1 and A2 were engaged in an illegal motor racing or trial of speed.  If the appeal in respect of Charge 1 is allowed, it will follow that the appeal against the convictions for Charges 2 and 3 should also be allowed.

Against Sentence

29.  Mr Reading argues that the sentencing process adopted by the Magistrate was wrong in principle and resulted in unfairness to A1 and A2.  He submits:

(1)   Under rule 69(2) of the Prison Rules, Cap 234A, a prisoner is entitled to receive a one-third remission for industry and good conduct, provided the actual term does not fall below 31 days.

(2)   Even though the usual sentence for illegal motor racing is an immediate custodial sentence, which defence counsel pointed out to the Magistrate at the time, the Magistrate nevertheless called for background reports and remanded the Appellants in custody for 21 days pending such reports (the period was then extended to 22 days to suit the diary of defence counsel).

(3)   In sentencing the Appellants, the Magistrate specified a starting point of 56 days (eight weeks) for Charge 1, he reduced the sentence to 50 days having regard to, inter alia, the previous good character of the Appellants.

(4)   After sentence, the Correctional Service Department informed the Appellants that in calculating the period for them to serve, the 22 days spent on remand pending the background reports would not be counted for the purpose of calculating any remission they would be entitled to in terms of rule 69 of the Prison Rules, and therefore they would be required to serve a further 28 days’ imprisonment.

(5)   The Appellants were not able to arrange bail pending appeal until they had served a further period of 10 days.

(6)   Had the Magistrate imposed a sentence of 56 days after verdict and had not called for background reports, the Appellants would have been entitled to the 1/3 remission, and thus would have had to serve a shorter period of imprisonment.

(7)   In all the circumstances, having taken into account the clear record and background of the Appellants, it was unfair and excessive to require the Appellants to serve their 50-day sentence in all.

RESPONDENT’S SUBMISSIONS

Appeal Against Conviction

30.  Ms Ko for the Respondent submits that the Magistrate was well aware of the non-exhaustive factors entailed in motor racing and the common sense approach urged by appellant court on magistrates in Chan Chin Pang and others and Leung Wai Wo referred to by the Magistrate. These factors being non-exhaustive in nature, the Magistrate was not bound by them, the Magistrate was entitled to look at the totality of the evidence by taking into account the driving manner of A1 and A2 within a short duration of two minutes, as shown in the footage and applying common sense, to draw the inference that A1 and A2 were engaging in motor racing in the instant case,

31.  Ms Ko submits that the Magistrate had clearly considered the footage, the relevant time frame being two minutes in duration, in particular what happened at 0222, 0400 - 0412 and 0417 hours in assessing the driving manner of A1 and A2.

32.  For the scenarios and features commonly present in other reported judgments concerning motor racing as highlighted in the Appellant’s submissions, Ms Ko submits that the fact there were other possible and alternative modes of driving manner suggested by the Appellants were not what the Magistrate should consider in reaching his conclusion.  The Magistrate should look at the manner of driving of the Appellants in the present case and reach a conclusion as to whether the offence of motor racing was made out.

33.  For the features present in this case that Mr Reading set out in support of his submissions that they were unusual for a motor racing, Ms Ko cites the judgment of Bewley J in The Queen v Mak Kam Chuen and others, HCMA 1063/1987, and submits that motor racing can take place with the use unmodified family cars.

34.  For the submissions that there was no evidence to indicate that the location in question was a hotspot for racing, Ms Ko cites the judgment of Cons JA in R v Yuen Kwok Hung & others, 682 {1983} 2 HKC, in support for her submissions that there is no designated location for motor racing.

35.  Ms Ko submits that the Magistrate, in coming to the conclusion as he did, that A1 and A2 were engaging in motor racing, had properly and correctly considered the driving manner of A1, A2 and D3 during the relevant 2-minute duration.  The Magistrate was entitled to draw the irresistible inference based on his findings of facts.

36.  Ms Ko cites HKSAR v Ip Chin Kei [2012] 4 HKLRD 383 and submits that it is trite law that an appeal under section 113 of the Magistrates Ordinance, Cap 227 is conducted by way of rehearing, the appellate court is required to assess the evidence and come to its own conclusion as to whether the evidence proves the essential elements of the offence beyond reasonable doubt.  The credibility and reliability of a witness is within the assessment of the trial magistrate who had the advantage of receiving the evidence first-hand.  It is only where the findings of the magistrate are shown to be unreasonable or illogical, or inherently improbable; or where the magistrate has misunderstood, misquoted, or failed to consider any significant aspect of the evidence, that the conviction will be rendered unsafe and/or unsatisfactory.  An appellate court will only depart from a magistrate’s finding of facts or determination of a witness’s credibility if the court is satisfied that the finding is plainly wrong.

Appeal Against Sentence

37.  Ms Ko submits that the Magistrate did not err by calling for background reports whilst remanding A1 and A2 in custody.  There is no complaint that the sentence of 50 days is manifestly excessive.  Ms Ko draws my attention to the judgement of Cons JA in Yuen Kwok Hung, at page 689 H-I, Cons JA said custodial sentence for first offender was imperative for offences of road racing, unless there were very special circumstances.

38.  For the Magistrate’s decision to call for background reports, Ms Ko submits that pre-sentencing reports are an obvious means by which a court can understand the history of the accused and his situation.

39.  Ms Ko cites the cases of HKSAR v Hui Kam [2000] 3 HKLRD and HKSAR v Nguyen, Pauline CACC 417/2006 in support of her submissions that the Magistrate cannot be criticised for his decision to call for backgrounds reports of A1 and A2, who were first offenders, before sentence.

40.  DHCJ Chu (as she then was) said at page 215 of the judgment of Hui Kam:

“A full background report is both relevant and useful in determining the length of imprisonment, especially in the case of a first offender”.

41.  McMahon J said in Nguyen, Pauline:

“What reports are called for prior to the sentencing of an offender is very much a matter for the discretion of the sentencing judge. It is only in cases where the judge by not ordering a specific report could be said to be clearly wrong that this court will intervene”.

42.  Ms Ko submits that as the offence of motor racing called for an immediate custodial sentence, remanding A1 and A2 in custody pending reports does not fall within the deprecated practice of “remanding into custody of an accused whose offence does not call for an immediate custodial sentence”.  She further submits that given the sentence passed, the present case does not fall within the criticised practice of “calling for a background report which is unnecessary when plainly a very lengthy prison term is inevitable” either.  She submits that the Magistrate did not err in calling for background reports for the purpose of ascertaining the background of A1 and A2, there was no misuse of court’s power.

43.  Ms Ko submits that the question of remission is not to be taken into account when sentence is being imposed.  She draws my attention of the judgment of Keith J in Secretary for Justice v Wong Yin Tak and others [2000] 3 HKC 482.  Keith J said at page 493E of the judgment:

“the established sentencing principle that a court errs if it decides the length of the term of imprisonment by reference to the probability that the defendant will earn remission”.

44.  The respondent submits that a sentence of imprisonment is made as a punishment for past conduct, whereas the period of remission is an executive decision being a reward for future conduct which the accused may or may not earn while in prison.

45.  The general principle is that remission should never have been taken into account while assessing sentence as remission is a possibility, earned by good behaviour whilst in prison, and not a certainty. The case of HKSAR v Cheung Lai Man, CACC 533/2002, concerned the consideration of the minimum term in the context of a life imprisonment, thus it involved the issue of remission.

46.  The respondent submits that the Magistrate has not erred or indeed, should not be subject to criticism when he did not take into account remission, let alone the calculation of the actual term as set out in rule 69(2) of the Prison Rules, Cap 234A.

47.  The respondent submits that the Magistrate has not erred in the calling background reports and remanding A1 and A2 in custody, hence the appeal against sentence should be dismissed.

A CONSIDERATION OF THE SUBMISSIONS

Appeal against conviction

48.  It is righty pointed out by the respondent that it is trite law that a magistracy appeal is conducted by way of rehearing.  It is incumbent on the appellate court to assess the evidence and come to its conclusion as to whether the case is proved against the accused.  When it comes to the assessment of the credibility and reliability of any witness, a trial magistrate obviously had the advantage of receiving the evidence first-hand. In this case, to the extent that the prosecution case at trial depended largely on the footage captured by the cameras installed on V1 (P7), V2 (P10) and the ProVida System in the unmarked police vehicle (P11), the appellate court is in as good position as the Magistrate was in assessing the footage.  To the extent that Mr Readings does not take issue with the Magistrate’s findings on the credibility and reliability of PW1 and PW2, this appeal does not involve a challenge of the Magistrate’s findings on the credibility and reliability of witnesses.  Suffice for me to find that, on an assessment of the evidence, the Magistrate’s findings on the credibility of PW1 and PW2 cannot be said to be wrong, let alone plainly wrong.

49.  It remains for me to consider whether the drawing of inferences and findings of facts by the Magistrate can be said to be plainly wrong.  It is well settled that finding of facts made by a trial magistrate should not be disturbed on appeal unless the findings are shown to be plainly wrong.  For the drawing of inference, I have to consider whether the inference drawn by the Magistrate that A1, A2 and D3 were engaging in motor racing or trial of speed was the only reasonable and irresistible inference that could be made on the facts proved.

50.  For the submissions made that the use of cars of ordinary saloon model with passenger on board was an unusual feature for a race.  As Bewley J rightly observed in Mak Kam Chuen, cited by the respondent, “There is, however, no reason, why the appellants should not have raced unmodified cars”.  As for the fact that V1 and V2 each carried a passenger on board, just as there are motorists who are prepared to race, there are motorists who are prepared to carry passengers on board their vehicles whilst engaging in racing, and there are passengers who are willing and prepared to be carried on board vehicles participating in motor racing.  I agree with the respondent’s submissions on this issue: the use of cars of ordinary saloon models with passenger on board was not a bar to the finding of motor racing.

51.  The Magistrate was no doubt aware of the time when and the location where the motor racing allegedly took place.  The discussion of Cons J in Yuen Kwok Hung, though it concerned the appropriate approach in sentencing offenders in motor racing, applies with equal force in considering the effect of the fact the location was not a designated hotspot for racing had on the prosecution case.  In terms of sentencing, it makes no difference whether the racing took place on well-frequented roads or along a lesser used, but nevertheless narrow and winding road, be it in the Hong Kong Island, Kowloon or the New Territories.  In weighing the inherent improbability of the issue, the Magistrate had considered the totality of the evidence, not just the time and the location, but the manner and way of driving of A1, A2 and D3 as displayed in the footage.  In my judgment, the fact that there were still a number of vehicles on the road in question at around 10pm did not constitute unusual feature.  There is no way for the participants in any illegal road racing to be sure that the road(s) involved would be clear of traffic.  Whether there would be a number of other vehicles on the road in question, just as whether there would be an unmarked police vehicle in the vicinity, was just anybody’s guess.

52.  A point was made by defence in closing submissions, and the Magistrate was no doubt aware of it, that A2 did not overtake A1 even when the opportunity presented itself and A2 merely followed A1 in the footage. There was no evidence explaining whether A2 did not overtake A1 was the result of a failure to seize the opportunity, a deliberate decision not to overtake or an innocent non-action by someone who was not engaged in racing.  Ultimately the Magistrate had to consider the totality of the evidence, including the fact that A2 did not overtake A1 when he had the opportunity to do so.  In the case of A2, the key issue before the Magistrate was whether he was engaged in motor racing, if the evidence proved that he was so engaged, the fact that he was not a good or aggressive racer was neither here nor there.  Missing of chance is not an uncommon occurrence in sports, a boxer who failed to deliver a punch when the opportunity presented itself in a boxing match was nothing less in a boxer match than a striker who failed to shoot the ball in a soccer match a player of the game.  For motor racing, it is easy for spectators in armchairs to criticise or comment on the lack of overtaking in a motor race, but those who were behind the wheels were the ones who had to make the decision whether they should overtake, one must not forget they were travelling in high speed, one mistake made would risk life and limb.  In my judgment, the fact that there were other vehicles present on the road which were not interacting to V1 to V3 made any overtaking more difficult.

53.  The point was made, and the Magistrate after weighing the evidence, rejected the submissions.  He pointed out that V1 to V3 were interacting to each other, for most of the time, the three vehicles were tailing from behind with each other.  The Magistrate pointed out that from P8, when V1 changed lane, it mostly cut into lane with less traffic, V2, which was behind V1, did not accelerate at the lane where V2 was to take over V1, instead, V2 followed V1 and changed to the lane that V1 had cut into.  In my judgment, the Magistrate was entitled to reject the defence submissions and find as he did.

54.  The Magistrate adopted a common sense approach to the evidence.  He took into consideration the non-exhaustive features referred to in Chan Chin Pang, he took into account the driving manner of A1 and A2 within the short duration of only two minutes as shown in the footage.  He identified the significance of scenes at 0222, 0400 - 0412 and 0417 hours. In my judgment, he had adopted the correct approach and had considered properly and correctly the driving manner of A1, A2 and D3 during the 2-minute time frame.  He was entitled to draw the irresistible inference based on the findings of facts he made from the evidence.

55.  In my judgment, the findings of the Magistrate cannot be said to be unreasonable or illogical, or inherently improbable; or where he had misunderstood, misquoted, or failed to consider any significant aspect of the evidence.  I have no reason to disturb the findings of facts and the inference made by the Magistrate that A1, A2 and D3 were in a motor race or trial of speed.

56.  The Magistrate was right to convict A1 and A2 of Charge 1, it follows Charges 2 and 3, ie, the charges of using a vehicle without third party insurance that they faced respectively were also made out.

57.  All grounds of appeal against conviction fail.

58.  I hold a rehearing on the evidence.  I am satisfied that the evidence before the Magistrate proved beyond reasonable doubt all the elements of the offences against A1 and A2.  I dismiss the Appellant’s appeal against conviction.

Appeal against Sentence

59.  No criticism is made of the starting point of 56 days’ imprisonment (eight weeks) taken by the Magistrate for Charge 1.  The complaint, in short, is that the remand in custody for background reports has resulted in depriving the appellants of the opportunity of earning remission for good conduct and behaviour due to the operation of rule 69(1) and (2) of the Prison Rules, Cap 234A.

60.  I agree with the submissions of the respondent that pre-sentencing reports are useful means by which a sentencing court can understand the history of the accused and his situation.  As DHCJ Chu (as she then was) said in the case Hui Kam: “A full background report is both relevant and useful in determining the length of imprisonment, especially in the case of a first offender.”  Both A1 and A2 were first offender, the Magistrate cannot be criticised for his decision to call for background reports before sentence, whether reports should be called is entirely a matter of course for the Magistrate, it cannot be said that he was wrong to call for reports before sentence.

61.  It cannot be said that the calling for reports in the present case amounted to a misuse of the court’s power.  The present case was not one that the offences the Appellants were convicted of were minor in nature which did not call for an immediate custodial sentence yet the Magistrate called for reports remanded the Appellants in custody resulting in the Appellants having to serve a period of custody whatever the merits of his appeal against conviction or sentence.  Nor can it be said that the offences that A1 and A2 were convicted of ones that would result in very lengthy terms of imprisonment which rendered calling of background reports futile and a waste of time.

62.  The established sentencing principle is that a sentencing judge should not take into account the question of remission.  As Keith J said in Secretary for Justice v Wong Yin Tak and others [2000] 3 HKC 482: “the established sentencing principle that a court errs if it decides the length of imprisonment by reference to the probability that the defendant will earn remission”.  There is force in the submissions made by Ms Ko on this issue: a sentence of imprisonment is made as a punishment for past conduct, whereas the period of remission is an executive decision being a reward for future conduct which the accused may or may not earn while in prison.

63.  In my judgment, a sentencing magistrate should not take remission into account when considering whether pre-sentencing reports should be called.  In the present case, the Magistrate had not erred when he did not take into account remission, let alone the effect of the operation of rule 69(2) of the Prison Rules, Cap 234A on the actual terms.  When the Magistrate imposed a term of 50 days’ imprisonment, he meant just that, no more and no less.  The length of the sentence of a defendant is a matter for the sentencing court, how the Correctional Service Department calculate the actual term an inmate according to the relevant Prison Rules is a matter for the Correctional Department.

64.  The Magistrate had not erred in his decision to call for background reports and remanded the appellants in custody.

65.  The effect of the 21 days in remand, with the operation of rule 69 of the Prison Rules, means that the Appellants would not have the opportunity to earn remission.  It is not a question of the Magistrate, in sentencing the Appellants, had wrongly taken remission into consideration.  The presence case is one that the combined effect of the length of sentence passed, and the 22-day remand, decisions of which were both properly made, when taken together with the operation of rule 69(2), has the result of making it impossible for the Appellants to earn any remission.  I am sure nobody was aware of this somewhat awkward position at the time of the sentencing and it was only known after the Appellants were sentenced.

66.  In my judgment, there is merit in the submissions that an injustice has occasioned to the Appellants in the present case for the above reasons, in HKSAR v Cheung Lai Man CACC 533/2002, the Court of Appeal considered in R v Burnley Magistrates’ Court ex parte Halstead [1990] 12 Cr App R (S) 468, in judicial review proceedings in the English Divisional Court, it was shown that the Magistrates’ Court had intended that the applicant should only serve 14 days’ imprisonment.  However, a sentence to that effect added considerably to her existing term of detention in a young offender institution, because the applicant’s remission entitlement was changed from one half to one third, a difference of 74 days.  Bingham LJ said (at page 471):

“The ordinary rule undoubtedly is that questions of remission, like questions of parole, should not be put out of the sentencer’s mind. The rationale of the rule is clear and is rooted in fairness to the defendant, who may not earn remission. The position is plain if one considers an example. Suppose the court considered two years’ actual custody to be the appropriate penalty and accordingly imposed a sentence of three years so that the defendant with one third, namely one year, served that period. No practical injury would be caused to the defendant if he or she in fact earned full remission; but if he or she did not, and indeed earned no remission, the defendant would serve three years. The defendant would be serving one year beyond what the court considered the appropriate penalty, not for the offence giving rise to the sentence, because that was only thought worthy of two years’ actual custody only, but because the defendant did not conduct himself or herself in prison so as to earn full remission. That would plainly be unjust and contrary to principle.

It would, however, be equally unjust if a rule formulated for the benefit of defendants were to be indiscriminatingly applied even where it worked to their disadvantage. Such would be the effect here if the court were obliged to shut its eyes to the practical consequences of a 14-day sentence under the Prison Rules, publicly promulgated for the better administration of prisons.

The Court of Appeal, Criminal Division rightly declined to shut its eyes in Cullen (CA march 22, 1989) and the court regularly reduces sentences where a defendant has effectively lost his or her liberty awaiting trial but in circumstances where that period cannot for any reason be counted against the sentence imposed.”

67.  In my judgment, there is no conflict between the established rule that “the established sentencing principle that a court errs if it decides the length of imprisonment by reference to the probability that the defendant will earn remission” (as per the judgment of Keith J in Wong Yin Tak) and the approach taken in Cheung Lai Man and Burnley Magistrates’ Court ex parte Halstead.  In most of the cases, the application of the established approach in Wong Yin Tak would not result in any injustice.  In the event that a strict adherence to the established principle would lead to injustice when taken together with other factors, the court should not shut its eyes to the unjust result occasioned.  In the present case, the combined effect of the operation of the Prison Rules and the remand in custody has resulted in the Appellants’ disentitlement to earn remission. No criticism should be made of the Magistrate’s decision to remand the Appellants in custody nor any complaint should be levelled at the form of punishment, ie, an immediate term of imprisonment and the length of the sentence, ie, 50 days’ imprisonment; at the time of sentencing , no one realized what effect the application of Prison Rules and the 22-day remand would have on the calculation of the balance of time the Appellants have to serve, resulting in their disentitlement to any remission.

68.  I reckon that the Appellants had spent a total of 32 days in custody, there is nothing to suggest that they would not be entitled to remission but for the operation of the Prison Rules, eg they had misbehaved themselves while in custody, at least there is no such incident reported in the background reports.

69.  I am satisfied, in all the circumstances, that the Appellant’s appeal against sentence should be allowed and their respective sentences should be reduced to a totality which would enable their immediate release.

DISPOSAL OF THE APPEAL

70.  For the reasons given, I dismiss A1 and A2’s appeal against conviction and allow their appeal against sentence.