THE QUEEN v. MAK KAM CHUEN AND OTHERS

Mag. App. 88 file

1987, No. 1063

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H E A D N O T E

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Illegal road racing - reckless driving - offences not 'merged' - defendants to be convicted on each charge if offences proved.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO.1063 OF 1987

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J U D G M E N T

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1. The appellants were charged with illegal road racing, reckless driving and driving without 3rd party insurance.

2. Evidence was given by five members of a team of traffic police officers, who were stationed at various points along Ting Kok Road, Taipo, at 2.48 a.m. on 2nd August, 1987, as part of an anti-illegal racing operation. Their evidence, which was accepted by the magistrate, revealed that a motor cycle and five cars travelled at high speed, very close together, in two groups less than two seconds apart, over a distance of 4-4½ kilometres,before they were stopped by a road block. A car in the second group was seen to flash its lights, cross the double white lines and attempt to pass the car in front. The first car, however, also crossed the lines and blocked the path of the second car. Having regard to the difficulty in assessing speed in such circumstances, the magistrate did not accept the police evidence that the speed of the vehicles was 70-80 mph.

3. The appellants did not give evidence. On appeal counsel does not say the magistrate was in error in finding the above facts. The only issue raised is whether those facts give rise to an irresistible inference that the appellants were racing, as opposed to driving fast, or even recklessly.

4. There was some evidence that pointed in the other direction. The cars were ordinary saloon models, passengers were carried, barbecue utensils were found in the boot of one of the cars and the appellants protested at the time that they were not racing but going to have a barbecue at Bride's Pool. There is, however, no reason why the appellants should not have raced unmodified cars, before or after a barbecue.

5. Speed on its own might be attributable to youthful high spirits and the likely absence of traffic on the road at that hour. Coupled with the continuous, dangerous, close proximity to one another, the attempt to overtake and the fact that the drivers were all of the same party, the driving of all the vehicles at sustained speed can only mean that there was an element of competition involved. If all took part, as was clearly the case, even though it had not been formally agreed upon by the participants beforehand, that amounts to illegal road racing.

6. The magistrate was correct to convict the appellants of that charge and also of driving without 3rd party insurance. Their appeals are dismissed.

7. On the reckless driving charge, however, he did not convict. He found that offence was proved, but considered the evidence 'invites the merging of the two offences'.

8. In failing to convict the appellants of reckless driving, the magistrate breached S. 19(2) of the Magistrates Ordinance, Cap. 227, which provides :-

"The magistrate, having heard what each party has to say and the witnesses and evidence so adduced, shall consider the whole matter and determine the same, and shall convict or make an order against the defendant or dismiss the complaint or information, as the case may be."

9. This is no mere formality. It is true that illegal road racing must almost always amount also to reckless driving. It is nevertheless separate offence. It is also a serious one. Unless there are good reasons to the contrary, it merits a separate penalty. I note that 2nd appellant, in particular, has an appalling driving record, having two previous convictions for driving whilst disqualified and one for dangerous driving.

10. With the concurrence of counsel, the case is remitted to the magistrate, under S. 119(1)(d) of the Magistrates Ordinance, with a direction to proceed to conviction and sentence on the reckless driving charges in respect of all the appellants.