R. v. WAI KIN FUN

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 271 OF 1994

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J U D G M E N T

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1. On 2nd February 1994 at Shatin Magistrates' Court, the Appellant was convicted, after pleading not guilty, of two charges. The first was reckless driving, and the second was driving in excess of the speed limit. He was fined $2,000.00 and disqualified from driving for 12 months on the first charge, and fined $3,000.00 on the second charge. He now appeals against his conviction. Despite notice of the hearing having been sent to him, he has not attended court to argue his appeal.

2. The prosecution's case was based entirely on the evidence of PW1, a police officer, who was riding a motorcycle. In the early hours of the morning, PW1 had followed a car along the Tolo Highway towards Shatin. The car was being driven very fast. At one stage, it was travelling at 180 km. per hour according to PW1's speedometer, though PW1 was about 200 metres behind it. After a while, the car left the Highway, and went along the under-pass to Hung Miu Kuk Road where it turned left. PW1 followed it along Hung Miu Kuk Road. While he was following it, he saw it go through three sets of traffic lights while the lights were red, though the car was no longer travelling at a high speed. In due course, the traffic made the car stop, and when PW1 asked the driver (who turned out to be the Appellant) why he had been driving so fast and jumped the red traffic lights, the Appellant replied that he was in a hurry to get to Tsimshatsui.

3. The Appellant did not give evidence, but his case was that it had not been his car which PW1 had been following on the Tolo Highway, and that the only time that PW1 was following the car which the Appellant had been driving was when PW1 got into Hung Miu Kuk Road.

4. The magistrate was satisfied that PW1 had not made a mistake. That is not a finding I can possibly interfere with. The magistrate saw and heard PW1, and he was in an infinitely better position than I to decide whether he was a reliable witness. On the facts he found, the magistrate was bound to conclude that the Appellant had been exceeding the speed limit of 80 km. per hour when he was driving along the Tolo Highway, and entitled to conclude that the Appellant had been driving his car in such a manner as to create an obvious and serious risk of causing injury or damage, but that he nevertheless took that risk. This appeal is therefore dismissed.

5. In my view, this is an appropriate case for costs to be awarded against the Appellant, and I order him to pay the taxed costs of the appeal up to a maximum of $2,000.00.