R. v. HO KWOK WAI

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 257 OF 1995

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1. The appellant was convicted of reckless driving. He was fined $3,000 and ordered to pay costs of $2,000.

2. The prosecution's case was this. The appellant was travelling in his own car along Kwun Tong By-pass near Kowloon Bay. A police inspector who was carrying out patrolling duty on a motorcycle was there indicating to drivers who were driving in the fast lane to move into the slow lane. He signalled or indicated to a Suzuki car to do so and the appellant's car which was also on the fast lane followed. The officer said that he later noticed the following.

3. The appellant pulled out, overtook the Suzuki and the officer, and then moved back into the middle lane. Then the appellant accelerated and travelled in the middle lane. The officer tried to follow him but could not catch up with him. The officer then pressed his siren which went on only for a few seconds (5 seconds, he said). There were also red and blue lights on his motorcycle. The effect of his pressing the siren was that the speedometer on his motorcycle would be frozen at the speed at which he was travelling, which he said would be a reflection of the speed of the appellant. He said that it was 128 km per hour. At that stage, the speed limit was 80 km per hour.

4. According to the officer, the appellant, after having rounded a corner at the end of the road, moved into the inner lane from the middle lane (there were three lanes there) in order to overtake a car. This was because there was a car in front of him and another car on the right lane. So he overtook on the left. Furthermore, the officer noticed that the appellant was still going at very high speed of over 100 km per hour. Finally the officer said that he noticed that when the road emerged into the Eastern Cross Harbour Tunnel, the appellant suddenly slowed down and cut into the two lane traffic which led into the Tunnel. This manoeuvre resulted in a vehicle travelling along the Tunnel having to brake abruptly. What is more, the appellant was seen to have immediately cut into a second lane, the right lane of the Tunnel. The appellant was then stopped by the officer. There was some questioning and the officer showed his speedometer indicating 128 km per hour to the appellant. The appellant was said to have admitted that he was doing about 100 km per hour.

5. The appellant gave evidence. He said that he saw the officer was making indications to a Suzuki vehicle and was talking to the driver. He said he therefore went straight on and overtook this vehicle and the officer's motorcycle. He then accelerated with care because he noticed the presence of a police officer. He said he was doing 80 to 90 km per hour. There was nothing in his evidence as to what happened later on except that the next area he touched upon was at the junction between the road leading to Lei Yu Mun and the road leading to the Eastern Cross Harbour Tunnel. He said when he cut into the Tunnel, he used his indicator and went at a very slow speed. However, as he cut into the Tunnel or rather after he had cut into the first lane and then later on into the second lane, he was stopped by the inspector. He denied having overtaken any vehicle on the left.

6. Counsel submitted that the learned magistrate was at fault in attaching importance only to the demeanour of the appellant and failing to take into consideration the inherent improbability of the evidence of the officer and failing to assess properly the appellant's version of the events. He also attacked the finding of the magistrate on the speed of the appellant and the manner of his driving. Counsel said that it was not established that the speedometer was accurate. It was also submitted that the learned magistrate was at fault in comparing the evidence of the officer and the appellant and there was a failure to apply the proper burden of proof.

7. With respect to Counsel for the appellant, I do not agree with his submissions. It would be better, of course, if the learned magistrate had expressly assessed the evidence of the officer instead of just saying generally that he accepted his evidence and that he was a truthful and honest witness. However having looked at the evidence, I cannot agree that it was inherently improbable that the officer was telling the truth. In fact, in my view, what the officer had said the appellant had done is consistent with the conduct of a driver who was reckless and doing the manoeuvres as described by the officer in the circumstances. The officer said as he was chasing after the appellant, he could not catch up with him. He also said that he had pressed his siren for 5 seconds. It is interesting to note that the appellant said in evidence, under cross-examination, that he did not see the siren. It was not surprising therefore that the appellant might not have noticed that the officer was chasing after him. In my view, there is no reason to doubt the officer's evidence which the learned magistrate had apparently accepted. The learned magistrate had actually taken the evidence of the appellant into consideration but rejected it. I do not think, in these circumstances, it is necessary to examine the inherent probability or improbability of his evidence.

8. One thing I think I ought to mention. There is absolutely no reason why the officer who had chased after the appellant from Kowloon Bay, or somewhere near Kowloon Bay, up to the Eastern Cross Harbour Tunnel just because the appellant had overtaken the Suzuki which was then obeying the indication of the officer if the appellant was not travelling at a high speed.

9. As far as the speed of the appellant was concerned, even the appellant himself admitted in evidence that he had been doing 80 to 90 km per hour at that time. I note from his evidence at page 32 of the Bundle that he said he accelerated with care because he knew there was a police officer behind him, and he kept on doing at this speed. He started off at about 80 km per hour and then at the circuit he was doing 80 to 90 km per hour although he knew the speed limit was 80. However, at a later stage, notwithstanding what he had said before, he said he thought he was doing within the speed limit.

10. There was no challenge under cross-examination or otherwise on the accuracy of the speedometer on the officer's motorcycle. There was no challenge that the speedometer was shown by the officer to the appellant. There was nothing to contradict the evidence that the speedometer registered 128 km per hour. It the officer was correct, the appellant said that he was doing 100 km at the time. So in the circumstances of the case, I think there was ample evidence for the magistrate to come to the conclusion that the appellant was doing much more than what he said he had been doing.

11. Counsel for the appellant also submitted that the magistrate had been affected by the speed of the appellant, by the overtaking in the slow lane and by the cutting into the path of another vehicle at the underpass. It was submitted that there was no evidence to show that the road was slippery. Counsel argued that overtaking by itself or even speeding by itself was not evidence of any careless driving let alone reckless driving.

12. In my opinion, I cannot accept such submission. One has to look at the evidence of this case as a whole. It was a place where the speed limit was 80 km per hour and yet the appellant was doing, according to the officer, and which the learned magistrate had apparently found, 128 km per hour, at least at one stage. It was not, as Counsel for the Crown has submitted, a country road but a road with two or three lanes leading to the Tunnel. Cutting into another lane of course is not by itself evidence of any carelessness or recklessness. However, in the present circumstances, such cutting into the path of another car resulting in the abrupt braking of the car following was some indication of at least lack of care and attention on the part of the appellant if not more. There were also the two overtakings : one was from the left after he had rounded the corner and the other was cutting into two lanes inside the Tunnel, very shortly one after another. So having looked at all the circumstances and the evidence, I take the view that the magistrate was entitled to take the view he had taken. Taking into consideration the manner of driving and the manoeuvres undertaken by the appellant starting from somewhere in Kowloon Bay to the Tunnel, I think there was ample evidence on which the magistrate could rely to draw the conclusion that this was a case of reckless driving on the part of the appellant. I see no merits in this appeal and it must be dismissed.