HKSAR v. LAU SHING MO

HCMA61/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 61 OF 2004

(ON APPEAL FROM TWCC 4011 OF 2003)

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J U D G M E N T

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1. On 3 December 2003 the appellant (who was then unrepresented) pleaded guilty at Tsuen Wan Magistracy to the following three offences committed on the same day and relating to the same vehicle :

(1) Dangerous driving of a white 4-door Mitsubishi saloon, registration number LE3910 at Kwai Lok Street, near lamp post FC4677, Kwai Chung, New Territories on 26 October 2003, contrary to section 37(1)(b) of the Road Traffic Ordinance, Cap.374 (RTO);

(2) Using a defective vehicle, contrary to Regulations 28(2) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap.374A;

and

(3) Using a motor vehicle without Third Party Insurance, contrary to sections 4(1) and (2) of the Motor Vehicle Insurance (Third Party Risks) Ordinance, Cap.272.

2. He was remanded in custody for 14 days and various reports were sought. On 17 December he was represented by counsel who addressed the magistrate in mitigation.

3. For the offence of dangerous driving the appellant was given a prison sentence of two months and he was disqualified from holding or obtaining a driving licence for a period of three years. For the offence of using a defective vehicle he was fined $320 and for the offence of using a vehicle without insurance he was also given a prison sentence of two months (to be served concurrently with the term imposed for dangerous driving) and he was disqualified (again concurrently) for 12 months.

4. The appellant appealed against his sentence in respect of the 1st and 3rd offences. He was on bail pending the hearing of the appeal.

5. On 10 February I allowed the appeal to the extent that I ordered that the prison sentences imposed in respect of the 1st and 3rd offences be suspended for a period of 18 months from that date. My reasons follow.

The magistrate's 'Reasons for Sentence'

6. I set these out in some detail because they are comprehensive and helpful in that they set out the facts of the offences and the magistrate's approach to sentence. The relevant parts are these :

" At around 0350 hours on 26-Oct-2003, PW1was on motorcycle (M/C) patrol on Tsuen Wan Road, N.T. bound. At that time, while travelling in the inner lane, PW1 was passed at high speed by two private cars (P/C) in the same direction that appeared to be racing. PW1, who was traveling at around 70 kmh estimated the speed of the two vehicles to be approximately 120 kmh at that time. Of the P/C's, one was a white 4-door Mitsubishi saloon and the other a black hatchback.

PW1 accelerated to follow the offending vehicles and a short distance along the road the white P/C made a sudden and sharp cut from lane number 2 to the left lane number 1 towards the slip road to Tsuen Tsing Interchange. PW1 followed [this vehicle] while the black P/C continued in Tsuen Wan Road. At this juncture, PW1 observed the car enter a 50 Kmh speed restriction near Tsuen Tsing Interchange at unabated speed, negotiate the roundabout at high speed and exited on Texaco Road, NT bound. The car then made a left turn to Yeung Uk Road while not slowing at the give way sign. He continued further along the road and made a left turn to Ma Tau Pai Road then disobeyed a red traffic signal as he turned left back into Texaco Road returning towards Tsuen Tsing Interchange.

The car then weaved at high speed through a group of unknown P/C's occupying the 1st and 2nd lanes of Texaco Road near the junction with Wing Tak Street before he passed through Tsuen Tsing Interchange and back to Tsuen Wan Road towards Kwai Chung. After a distance of around 200 metres, the car left Tsuen Wan Road at the 1st exit and made a left turn to Hing Fong Road with such speed that it crossed over the double white lines at the exit of the junction to the middle lane of the road (Hing Fong Road) that in this location is 4 lanes wide. PW1 then witnessed the car make a left turn to Kwai Fuk Street disobeying a red traffic signal and then make an immediate left turn to Kwai Hei Street.

The [appellant] continued at high speed along Kwai Hei Street and eventually turned on his hazard warning lights before turning to Kwai Lok Street and coming to a stop o/s 18-28 Kwai Lok Street at around 0400 hours. PW1 approached the driver and asked for the keys to the vehicle and his driver's licence. PW1 then identified the driver as [the appellant] and told him to wait inside his vehicle and called for assistance.

During the time PW1 followed the [appellant's car] he observed that he drove at very high speeds that he estimated to be between 50 and 140 Kmp with the highest speed attained on Tsuen Wan Road between Tsuen Tsing Interchange and Hing Fong Road in a 70 kmh speed restriction, the only section of road covered by a speed restriction other than 50 Kmp throughout the whole incident. In addition to disobeying the red traffic signals at Ma Tau Pai Road and Hing Fong Road, the [the appellant] had approached all junctions at such a speed where in the opinion of PW1, it is unlikely he would have been able to stop had his path been obstructed and at no time did he make any indication as to his intended direction nor pay due care and attention to other road users. At the time the road surface was dry, it was dark with street lighting illuminated and the traffic flow was light.

The facts supporting the third charge were that the [appellant] had bought the car in question sometime in October, 2003. The engine number of the car was different from the one appearing on the car registration documents thus rendering the third party insurance taken out by the defendant void. Under caution, the [appellant] claimed that he had no knowledge of the same.

The [appellant] was clear in his criminal record and traffic record. The probation officer had given me a very comprehensive report on his background. He had led a normal life except that he had sustained work injuries and had been on sick leave since 13th March, 2002. He had also told the probation officer how he had committed the present offences. He said that he had been chatting and drinking with his brother-in-law before he drove home in the night-in-question. When he had discovered that [police] was following him, he was scared that police might discover his drink-driving and hence he had driven his car quickly and jumped red lights. However, his cohabitant told the probation officer that the [appellant] was challenged by an unknown driver and thus raced this driver. From paragraph 2 of the brief facts, I know the [appellant's] car sped past PW1 together with a black hatchback private car at approximately 120 km/h. I have no reasonable doubt that what the cohabitant had said represented the truth in that when the [appellant] was first spotted by the police, he was racing with another car. However, after he had separated with that other car and drove in the manner as described in the brief facts, he was trying to make good his escape from the police. He only stopped after he came to realize that he could not shake off PW1.

The reports said that the [appellant] was not suitable for community service order because of his work injuries. The probation officer recommended probation because in his view the defendant had a weak sense of being a responsible driver.

R v CHAN Chi-pang MA 265 of 1991 and HKSAR v LEUNG Wai-wo MA825 of 1999 were two magistracy appeal cases concerning charges of road racing under the Road Traffic Ordinance. Defendants with respectable homes and of previous good characters were sentenced to serve short present terms in order to maintain sufficient deterrence.

I have considered whether the prison sentence should be suspended. However, given the severity of the offence, to suspend the sentence would send out a very wrong message to the public in general on the court's attitude over offences of the sort. This is the reason why I order that the prison sentence I imposed to take immediate effect."

7. In the course of his submissions before me Mr Shiu, for the respondent, referred me to the judgment of Cons JA in R. v. Yuen Kwok Hung and Others [1983] 2 HKC 682 and the judgment of Bewley J in R. v. Chan Chin Pang and Others [1991] 2 HKC 378 and, in particular this passage from the first of those judgments (at page 689G) :

" They are both an extreme danger, not only to themselves ... but to innocent users of the roads for whom they seem to have not the slightest regard. If such conduct were allowed to proliferate, persons who need to use the roads for lawful business during the small hours of the morning would be put at the gravest risk. ..."

and this passage from the second (at page 382H) :

" Road racing is a menace to law-abiding 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.

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 App 539/1983, unreported) and by the authorities cited therein."

8. Mr Shiu went on to say this in his written submissions :

" The Magistrate, after considering all evidence, was right to conclude that the Appellant did have a road race with the other black P/C and thus drove in a dangerous manner. This was self-evident from the admitted facts. The list of factors to determine whether there is a road race is not exhaustive. Apart from speed, overtaking or attempted overtaking and proximity, time, location, the nature and type of manoeuvring, type of vehicle and whether any adaptations have been made to the vehicles are all relevant factors. [see HKSAR v. LEUNG Wai Wo, HCMA825 of 1999 at 7G to K] In the present case, it was at 03.50 hours in Tsuen Wan Road. There were two vehicles travelling far beyond the speed limit. The engine of LE 3910 had been modified. The Appellant disobeyed the traffic rules one after the other. He drove in an outrageous manner in order to escape from PW1's chase. Under these circumstances, it is reasonable to infer that there was a road race. The Appellant's driving manner caused a menace to the pedestrians and other road users and hence put their safety at great risk."

9. I would just say that that is all very well if the gravamen of the offence committed is truly 'road racing' and not something else, but I shall return to that matter later.

10. The grounds of appeal settled by Mr Lam on behalf of the appellant were succinct and very much to the point. They were these :

"1. The learned principle erred in law in applying the sentencing standard and guideline of illegal road racing when sentencing the Appellant when the Appellant was charged and convicted of dangerous driving.

2. In view of the circumstances of the Appellant, the sentence of two months imprisonment for Charges 1 (dangerous driving) and 3 (without third party insurance) was severe.

3. The overall sentences were manifestly excessive."

11. In his written submissions Mr Lam said this :

"(1) The learned principle magistrate based his reasoning on sentence on R v Chan Chi-pang and HKSAR v Leung Wai-wo. Both cases concern charges of illegal road racing and the considerations are somewhat different and are much more severe.

(2) As a result, the learned principal magistrate was wrongly influenced by these cases and sentenced the Appellant to a period of short terms imprisonment 'in order to maintain sufficient deterrence'.

(3) In the circumstances of this case, there were no injuries or damage, there was a small group of cars and the road was predominantly empty around this time of the night, the Appellant was not over the drink-limit, there was no showing-off with passengers inside his vehicle. More importantly, there was no incident when the Appellant was observed to have caused any other road users to brake sharply or to avoid him or anything of that sort. As a result, the present case can be distinguishable from cases of illegal road racing. Even while there was one incident that 'two private cars ... that appeared to be racing' when passing by SIP Livesey's vehicle, that incident was short and quite immediately both vehicles went off to a different direction. As a result, the driving of the Appellant was more an incident of dangerous driving that that of illegal road racing, as the right charge was preferred by the prosecution.

(4) However, it is apparent that the learned principal magistrate had sentenced him on the basis of a charge of illegal road racing. As a result, the Appellant received a sentence of a much more severe nature than he would have otherwise received had the learned principal magistrate focused himself on the instant charge.

(5) There are sufficient mitigating circumstances in the case of the Appellant. That he was of clear record both criminal and driving records; that he was remorseful by pleading guilty at the very first opportunity and unrepresented; that he was accepted by the probation officer for 12 months originally; that he was no doubt genuinely remorseful and the probation officer was willing to supervise him; that it was only because of his personal injury that he was denied community service; that he was remanded in custody for the relevant reports; that the period of remand no doubt served as a sufficient deterrence for the Appellant; that there was no injury or damage caused by this act of dangerous driving; that it should be a one-off incident that the Appellant had learnt a bitter lesson.

(6) Finally, had the learned principal magistrate had in mind the charge of dangerous driving instead of illegal road racing, then a probation supervision order cannot be said to be wrong in principle.

(7) Furthermore, the learned principal magistrate was wrong in equating the without insurance charge in illegal road racing case and that of the instant case since in the present case the infringement was technical and there was no evidence that the Appellant was aware that the numbering was different.

(8) It is said that the Appellant was responsible for repair and maintenance and therefore he must have responsible. However, in terms of repair and maintenance, in most cases, the owner of the vehicle would not have checked the numbering. In addition, the Appellant was without insurance not because of road racing but due to this technical infringement and for such a reason to sentence the Appellant to two months imprisonment is clearly wrong in principle and manifestly excessive.

(9) In the premises, the Appellant's sentence was wrong in principle and manifestly excessive."

12. Whilst I am prepared to accept Mr Lam' contentions set out above in paragraph 9(1)(3) and (5), I have no hesitation at all in agreeing with the magistrate's views concerning the appellant's driving after he had reached the Tsuen Tsing Interchange. It was disgraceful; it was extremely dangerous and it cannot (in my judgment) be said to have been unworthy of a short prison sentence.

13. That said, I am also prepared to accept on the facts of the case and on what was put forward in mitigation and in the reports, that it was principally the appellant's conduct after reaching the Interchange which was the conduct in respect of which he stood to be punished and that it was conduct consistent with panic. That conduct was unrelated to 'road racing'.

14. It was by reason of everything that I have said in this judgment, not least being the fact of the appellant's initial remand in custody (and the effect that that had upon him) that I was persuaded that the interests, both of the appellant himself and of the community at large, would best be served by suspending the sentences of imprisonment imposed by the magistrate and by leaving the periods of disqualification in place.