HKSAR v. LEUNG WAI WO AND OTHERS

HCMA 825/1999

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 825 OF 1999

(ON APPEAL FROM WSCC 3540/1999)

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J U D G M E N T

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1. The 6 appellants in this case were all convicted in the Magistracy on a joint charge of Taking Part in Motor Racing contrary to section 55(1)(a) of the Road Traffic Ordinance Cap. 374. Individual alternative charges of Reckless Driving were also laid. Each appellant was also charged with and convicted of Using a Motor Vehicle without Third Party Insurance contrary to section 4(1) and (2)(a) of the Motor Vehicle Insurance (3rd Party Risks) Ordinance Cap. 272. In addition sundry charges relating to the state of their vehicles were laid against D1(1), D3(4), D4(3), D5(3) and D6(1) to which they pleaded guilty.

2. All 6 appellants appeal against their conviction for racing and also their convictions for using a motor vehicle without third party insurance, which conviction was consequent in each case on their being convicted of racing.

3. All appellants were sentenced to 2 months imprisonment and disqualified from driving for two years for the racing conviction. Each appellant was fined $800.00 and disqualified from driving for 12 months for driving without third party insurance. The periods of disqualification were ordered to run concurrently. A1, A3 and A6 appeal against both those sentences. A2, A4 and A5 abandoned their appeals against sentence prior to the hearing; A6 abandoned his at the hearing.

Background to offences

4. On 9 November 1998 from about 11:25p.m. police kept observation on a number of vehicles that were congregating at the eastern end of the car park on Beach Road in the Repulse Bay area opposite a 7-eleven shop. There was conversation amongst the drivers and various vehicle numbers were recorded by the police officer on duty there.

5. At about 01:25 on 10 November 1999 police observed two groups of vehicles travelling along South Bay Road towards South Bay Close. The vehicles were conspicuous because of their very loud engine noises, noise from their tyres, their high speed and their proximity one to another. The police observation continued from vantage points that gave various officers a view of the vehicles as they came along Repulse Bay Road, and thence to Island Road. A road block set at the roundabout at Repulse Bay and Deep Water Bay Roads served to funnel the group of cars into Deep Water Bay Road.

6. A second road block was set up on Deep Water Bay Road and the first group of four cars was seen approaching at speeds estimated at 70-80 kilometres an hour. The cars were signalled to stop and eventually did. A number of the cars stopped some way past the road block. The second group of cars slowed down and stopped except for three vehicles which made U-turns and drove off at fast speeds. Two of those vehicles were later found by the police in a cul-de-sac off Beach Road and the drivers were arrested.

7. The chief ground of appeal for all 6 appellants was that the Magistrate had erred in concluding that what had occurred on that night was road racing. If there was road racing it was the appellants' case that they had been arrested for the offence in error and that they had in different ways been caught up as innocent parties in the groups of cars that had been racing.

8. Appellant 1 submitted that the Magistrate gave too much weight to irrelevant matters in deciding whether there was racing; had failed to consider there were blind spots in the police observation and erred in concluding that none of the vehicles had emerged from side roads near the road block.

9. Appellant 2, 4 and 5 submitted the Magistrate was wrong to conclude there was racing in the absence of overtaking or other evidence of competition; that he failed to consider the possibility of innocent vehicles being caught up in the offending group; that he erred in accepting that PW1 could have written down certain registration numbers; that he failed to consider that the evidence of PW2, whom he disbelieved, could have tainted that of PW1 who worked closely with him and that he failed to consider the case of each appellant separately.

10. In relation specifically to appellant 5 it was submitted that the Magistrate failed to consider that he was almost the last or possibly the very last of a group of cars; that he was not seen to communicate with the group at the initial observation by PW1: that his vehicle number had never been noted and that a silver car (which his was) had not been mentioned by the observation officers.

11. Appellant 6 submitted that the Magistrate had not assessed adequately the unreliability of PW4 in relation to the numbers of vehicles involved in the racing and whether or not there was other traffic ahead or behind the group at the time of his observation; that in rejecting as unreliable the evidence of PW2 and PW3 he failed to resolve conflicts arising between PW5 and PW8 as to the number of vehicles and failed to consider adequately, or at all, the veracity, reliability and accuracy of other prosecution witnesses. It was also submitted that the Magistrate wrongly inferred that the 5th appellant was involved in the road racing merely because he avoided the road block by means of a U-turn, when there were other innocent explanations for his behaviour available.

12. Appellant 3 appeared in person and had filed only general grounds of appeal. He applied at the appeal hearing for an adjournment to obtain representation but as he had had ample opportunity to arrange for representation, the case having been heard in July 1999, I refused his request. I noted that he had had grant of legal aid limited to an opinion in October 1999 and that his legal aid application had been refused on 1 March 2000. I ascertained from him that his grounds were largely the same as those of his co-appellants, in other words that the Magistrate was wrong in saying that road racing had occurred, but that if there was any racing he had not been involved in it. I advised him that I would consider his case in the light of the grounds of general application filed on behalf of the other appellants. He had nothing additional to say when offered the opportunity to do so.

13. The chief ground on which all appellants relied was that there was no evidence of road racing as it is properly understood. Miss Draycott, for the 2nd, 4th and 5th appellants, submitted that at its highest the prosecution evidence amounted to car rallying, which although at that time and place might be anti-social behaviour, was not racing. Overall the matters advanced by counsel that were said to militate against the driving being road racing, were that there was no evidence of overtaking; that there was no driving over white lines and that there was no evidence of any form of competition.

14. Reliance was placed on R v. Chan Chin Pang [1991] 2HKC where Bewley J said at page 382:

"There was no evidence of a formal race as such but to establish guilt that need not be proved. The manner of the 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.

It is clear from other cases to which I was referred R v. Yuen Kwok Hung [1983] 2 HKC AG v. Tam Chi Man App Rev 19/1980 that none of the courts hearing appeals were prepared to lay down an exhaustive definition of what driving must entail before it can be considered to be racing. In each case the circumstances will be different and it is for the Magistrate to decide whether on the evidence adduced that the prosecution has established its case against each of the persons charged.

15. In this case the Magistrate could and did take account of the manner and nature of the police observation, from the initial gathering of vehicles outside the 7-11 store, along the route that the vehicles took, through the road block at the roundabout to the eventual stopping of the vehicles outside the car park in front of the golf club at Deep Water Bay. He did as he was enjoined to do in the case of Chan Chi Pang and considered the pattern of driving that the police officers described as they had viewed it from various vantage points.

16. That pattern showed that the vehicles under observation were driven in a pack that at times split into two parts, that they were driven at speeds well in excess of the legal limit, that the vehicles were being driven for the most part in very close proximity one behind the other and that the noise of tyres and brakes emanating from the cars was unusually loud or laboured. He noted the narrow width and the winding configuration of the roads over which the vehicles travelled and that the driving was taking place in a residential area.

17. In fact the Magistrate did all that was required of him in coming to his decision. Relevant factors apart from speed, overtaking or attempted overtaking and proximity, will include the time, the location, the nature and type of maneuvering, type of vehicle and whether any adaptations have been made to the vehicles. Again that list of factors cannot be considered exhaustive.

18. As well as analysing the evidence and deciding which if any from the list of factors apply a Magistrate is also required to use his common sense in interpreting the sum of the factors he finds proved. In this particular incident there could have been no doubt in the mind of an onlooker, or in the mind of a motorist sharing the road with the two groups of cars that what they were doing was racing. There was ample evidence from which the Magistrate could infer that the appellants were racing and this court cannot interfere with such a finding properly based as it is on the evidence.

19. As for the suggestion that these vehicles were taking part in the more innocent past-time of motor rallying, there was no evidence to show that was or might have been the case. Nor were any explanations to that effect ever given by the appellants when they were stopped by the police.

20. The Magistrate rightly did not comment adversely on the appellants' right not to give evidence, but the fact that they did not do so made it the more likely that the Magistrate would infer they had been racing.

21. The same consideration applies in respect of the contention by the appellants that they were caught up as innocent drivers either at the head of a pack of racers who came up behind them, or as the tail end of a pack that was ahead of them. There was evidence from the police officers, in particular from PW1, which made it clear that the same vehicles which were among those stopped at the second road block had been congregating at the 7-11 store earlier in the evening. The Magistrate was aware that persons might have been caught up involuntarily in a pack of road racers and was also alive to the possibility that one or more vehicles might have been trapped in the group after leaving a side road or a car park along the route followed by the racers.

22. In this appeal there has been a great deal of criticism of the police evidence as it relates to the observation. The Magistrate was well aware of the shortcomings of that observation as it related to the course of the race and to the fact that the officers had to give estimates of speed. The most satisfactory way to conduct such an observation would have been to use cars, or motorbikes, to follow and clock the racers.

23. I doubt however that that is a desirable way of dealing with racers. Police are trammelled by the need to ensure their own safety and the safety of the motoring public, which means they cannot always follow the most obvious course in collecting evidence of a motoring offence. In this case they followed a logical and sensible procedure in order to observe the group and to gather evidence of the offence.

24. The officers were obliged to give evidence of what they had seen. It was for the Magistrate to assess the value of that evidence. In the case of PW2 he rejected his evidence almost in its entirety - similarly with that of PW3, the sole civilian witness. He was entitled to accept or reject all or part of that evidence and it appeared that he rejected their evidence, except for minor points where the evidence was established by another witness he considered reliable.

25. Miss Remedios for the 6th appellant suggested that the Magistrate's disbelief of PW2 and PW3 must mean that the evidence of all the other police officers is tainted and Miss Draycott for A2, A4 and A5 echoes that rather bold submission by saying that at least the evidence of PW1 must be tainted where it meshes with that of PW2 because of the close proximity in which they worked. Such a brave submission can only be made by counsel who feel that their case is weak and so I shall not comment on it further. The Magistrate assessed the evidence of the police officers with care realising the difficulties imposed by the circumstances of their observation. Having made his assessment he made various findings. There was no evidence from the defence to undermine, contradict, or explain, the prosecution evidence put before the Magistrate.

26. He dealt with each witness in turn and was aware of the route taken, the discrepancies in the evidence, what he considered worthless evidence and what he considered were weaknesses in the prosecution case. Having taken all matters into account he concluded that racing had taken place and that these 6 appellants were involved in it.

27. Having studied the Statement of Findings; having read the parts of the transcript provided; having heard counsel on behalf of appellants 1, 2, 4, 5, and 6 and having considered the evidence as it relates to A3, I can see no merit in any of the appeal points advanced. These appeals against conviction are dismissed.

Appeal Against Sentence - A1, A3 and A6

28. It is submitted for A1 that special considerations exist in this case for saying that a custodial sentence is not justified. The special conditions are said to be that there was no infringement of traffic signs or signals and that there was no evidence of overtaking. Further there was said to be no attempt to use the intervening traffic as some sort of obstacle course.

29. The case of R v. Yuen Kwok Hung [1983] 2HKC is relied on, particularly this statement of Cons J.

"I respectfully agree with the Court of Appeal that custodial sentences are justified. For my own part I would go further and say that they are imperative, unless there are very special considerations."

I am unaware of any case or cases where such special considerations as the learned judge was referring to, have been discussed. I would venture to suggest however that the type of consideration put before me on behalf of A1 would not come within the category.

30. The Magistrate cannot be faulted for the sentences he imposed in this case. He was mindful of the necessity for deterrent sentences and adopted the sentiments of Mr Justice Bewley as expressed in the case of Chan Chin Pang (supra) He considered the possible consequences to innocent road users and noted that such consequences were likely to be exacerbated by the invalidation of any insurance policies.

31. A3 had no relevant submissions on sentence.

32. The appeals of A1 and A3 are dismissed.

33. The appeal of A6 is dismissed upon his abandonment.