THE QUEEN v. CHAN CHIN PANG AND OTHERS

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 265 OF 1991

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BETWEEN

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JUDGMENT

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1. The five appellants were convicted by Mr Saunders in Tuen Mun Magistrates Court of (1) illegal road racing, contrary to section 55(1)(a) of the Road Traffic Ordinance and (2) driving without third party insurance, contrary to section 4(1) of the Motor Vehicle Insurance (Third Party Risks) Ordinance. They were each sentenced to two months imprisonment and disqualified for 12 months. They now appeal against both conviction and sentence.

2. In the early hours of Sunday 1st October, 1990, officers of the N.T. anti-road racing team set a trap on the Sek Kong side of Route TWSK. At 1.40. am, they were in position in five observation pots, close to the roadside, from the Sek Kong roundabout at the bottom of the hill (OP6) to the RAF Quarters 1.8 km away up the steep and twisting road (OP2). A road block was set up at the top at the junction with the road leading to the summit of Tai Mo Shan.

3. According to Inspector O'Connor, who was in charge of the team and was at OP2, traffic was very light, as one would expect at that time of night in such a rural spot.Then at 2.30 am three cars passed him going uphill "intimidatingly close together" at a speed he estimated at 70 - 80 kph. They were followed 30 seconds later by two other cars travelling rather faster than the first group and closer behind each other.

4. Inspector O'Connor gave radio instructions that cars should be stopped at the roadblock and at once set off in pursuit in his car. It took him approximately one minute to reach the well-known observation point and parking area (the lookout) two kilometres farther up the mountain, where he saw the same five cars parked. There were no other cars parked three and Inspector O'Connor had seen no other cars on the road since he first saw the two groups. The occupants of the five cars had not alighted. When the rest of the team arrived the drivers - the five appellants - were arrested and their cars photographed. Inspector O'Connor said the weather was fine, the road dry and the street lighting very good.

5. Five other officers at OP2, OP3, OP4 and OP6 gave similar evidence, although their detailed descriptions of what they saw varied. This is not surprising since the cars were in view for only two or three seconds. Some were able to give the models, two even jotted down on the palms of their hands part or all of the registration numbers of two cars, but most cars were described only by colour, although all the witnesses were able to put the five cars in sequence.

6. It is not suggested that the police witnesses were dishonest but Mr Mumford, for the appellants, submits that their evidence cannot be reliable as to the identity of the cars and the manner of their driving.

7. Three of the officers drew sketch-plans (six in all) soon after the incident, in which they put down the positions and descriptions of the cars. (Exp.6, 7, 10, 11, 12 and 13) The admission in evidence of these plans was opposed on the grounds that they were self-serving, in the same way as a witness statement cannot normally be put in evidence as evidence of a fact. The magistrate relied on R v. Menzies (1982) 1 NZLR 40, in which it was held that the use of time-saving schedules and charts to assist the jury in complicated cases can be very desirable and is not improper, provided that the contents are proved and that the judge is satisfied that there is no unfairness. He admitted the documents, not as evidence in themselves but as illustrating and assisting in his understanding of the oral evidence of the witnesses. This is consistent with the practice in the English courts. See Wilkinson's Road Traffic offences p1/173-4. In only one instance (ExP7) does a plan contain material not referred to in oral evidence that is the registration number of the red Suzuki mentioned by Sergeant 21491 (PW2).

8. In spite of Mr Mumford's criticism of their evidence, I am impressed by the officers' powers of powers of observation - honed in  their training for this difficult job no doubt - and for the remarkable consistency of their descriptions. This is subject to one possible exception, which I shall come to in due course.

9. All the officers said the five cars were travelling very fast - between 70 - 90 kph - in the manner described by Inspector O'Connor. Some heard screeching of tyres at corners and some saw attempted overtaking. Judgment of accurate speed by a stationary onlooker - albeit an experienced police officer-is notoriously difficult in the most favourable circumstances, let alone a winding uphill road at night. I think therefore that too much reliance should not be placed on the actual kph figures; it is the pattern of driving that is significant. The officers' general impression of speed is of course a significant component of this pattern.

10. The defence however attacks primarily the officer's identification of the cars seen at the lookout as the cars in the two groups, and only secondarily the allegation that these five cars were racing. I propose therefore to set out as an appendix to this judgment a comparative table showing a description of each car by the six witnesses in question.

11. The magistrate has carried out a similar exercise at p.99 of the bundle. He has however gone further and attempted to show in the chart at p.100 the position of each car at each observation point. I am inclined to agree with Mr Mumford that this involves a degree of speculation on the part of the magistrate and is therefore unreliable.

12. I will now deal with the evidential inconsistency referred to earlier. PC1625 at OP3 was looking out on a 100 metre stretch of straight road, something of a rarity on that part of Route TWSK. He heard loud screeching and saw both groups of cars go past. The interval between them was five or six seconds. He described each car by model and colour. Where his evidence differs from that of the other officers is that he is the only one to notice a sixth car - a red Toyota Carina. He said this car was also travelling uphill, but at a normal speed. He said it was within his sight for about seven seconds and all five of the faster cars overtook it, causing it to brakes they did so. PC1625 followed the cars to the lookout, but there he saw only the five cars that overtook the red Toyota. Nor was it seen by any other witness.

13. There are no side roads leading off this part of Route TWSK, execpt a rough track leading to Tai Lam Reservoir from a point near OP5. There are however several entrances to military quarters and installations. It is therefore possible that between OP4 and OP2 this car emerged from one of these premises and subsequently disappeared into another. One cannot therefore be sure, submits Mr Mumford, that the five cars seized were the five cars alleged to have been driving in such a furious manner. It is significant however that there are no non-military residences or other premises in the vicinity.

14. The appellants did not give evidence but there was one defence witness, Mr Chan Yuen-lok, who said he had dinner with 2nd appellant and seven others in a Tai Kok Tsui restaurant. They decided to go for a joy-ride in three cars and to meet at "the Tai Mo Shan pavilion". This I think must be the lookout referred to by the police officers. The cars were ED6769, DW9651 and DY7168. Mr Chan was in the latter car, which was driven by 2nd appellant.

15. The cars did not leave Tai Kok Tsui all at once.  2nd appellant drove to Sek Kong by a roundabout route via Tsuen Wan, Shing Mun Tunnel, Tolo Highway and Lam Kam Road. Going up Route TWSK they passed a Mitsubishi car at the first passing bay, but were then forced to follow a goods vehicle all the way to the lookout at 40 - 50 kph.

16. When they arrived he saw six or seven other parked cars and many persons. DW9651 and DY7168 then also arrived. He smoked a cigarette and it was only when he had finished the cigarette that the Inspector appeared on the scene.

17. The magistrate wrote a detailed and careful Statement of Findings. He found the prosecution witnesses to be reliable and unshaken in cross-examination. It was the descriptions given by all the prosecution witnesses, taken as a whole, that left him in no doubt that it was the appellants' cars that had been described. It was furthermore the consistency of their descriptions that satisfied him that none of these five vehicles had entered route TWSK in a similar manner to the red Toyota observed by PC1625.

18. The magistrate found the defence witness's evidence as to what had happened on Route TWSK vague and unconvincing but noted that his evidence established that at least three of the vehicles had travelled in the direction alleged by the Crown and that each of the two groups contained at least one car said by Mr Chan to have travelled up Route TWSK from Sek Kong.

19. In my judgment these findings cannot be criticised. The magistrate clearly gave the question of identification of the cars the most anxious consideration. He looked at each appellant's case separately. He was impressed with the prosecution witnesses : he disbelieved Mr Chan. The prosecution evidence stood uncontradicted by evidence from any of the appellants.

20. Taking the evidence as a whole, it is inconceivable - unless the police are lying, which is not suggested - that the five cars seized at the lookout had come from anywhere except Sek Kong roundabout and had not comprised the two groups described so graphically.

21. There was no evidence of a formal race as such, but to establish guilt that need not be proved. The manner of driving of each of the five cars went beyond mere fast driving; there was a clear-cut element of competition in their proximity to each other and in the attempted overtaking, quite apart from their speed. This is sufficient proof of racing. I am satisfied that the magistrate would inevitably have come to this conclusion from his primary findings of fact even if he had not compiled the chart at p.100 of the bundle. It follows that such driving invalidated the appellants' insurance.

22. The appeals against conviction are dismissed.

Sentence

23. Road racing is a menace to lawabiding motorists and determined efforts to eradicate it are now being made by the police. It is not an easy offence to prove : much time and effort on their part is necessary. But all who are found guilty must expect to be punished to the extent that they will not do it again.

24. Many offenders - as is the case with these appellants - come from respectable homes and are men of previous good character. That makes the disgrace of imprisonment all the harder to bear. But it is necessary as a deterrent to them and to others that short prison sentences be imposed in such cases. This was made clear by Cons JA (as he then was) in R v. Yuen Kwok-hung Crim. A. 539 of 1983 and by the authorities cited therein.

25. This is not the worst case of its kind. In Yuen's case, in which the sentence was also two months, the racing was on an organised or semi-organised basis.

26. Nevertheless the consequences for any oncoming traffic in the present case might have been horrific.

27. The maximum sentence for roadracing is 12 months  imprisonment. This is a reflection of the gravity of the offence in relation to the increased traffic on the roads of Hong Kong at all hours of  the day and night.

28. For these reasons I cannot say that the sentence of two months for this offence was too severe and I also dismiss the appeal against sentence.