HKSAR v. LEUNG WAI TONG

HCMA1123/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 1123 OF 1998

(On appeal from WSC 9615 of 1998)

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J U D G M E N T

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1. On 20 October 1998, P C White Esquire, magistrate, convicted the appellant of the offence of reckless driving, under section 37(1)(a) of the Road Traffic Ordinance Cap. 374. He appeals that conviction on perfected grounds as I shall come to.

2. At the outset of the trial the appellant had pleaded not guilty to the substantive charge of furious driving brought under section 33 of the Offences Against the Persons Ordinance Cap. 212, as well as to the charge of reckless driving which I understand was submitted by the prosecution for the first time on the day of trial as an alternative charge.

3. At the conclusion of the prosecution case the magistrate found the appellant had no case to answer on the substantive charge, the prosecution having failed to elicit evidence, or sufficient evidence, of bodily harm to the named victim, which is a material ingredient of the charge. By the conclusion of the evidence he found the charge of reckless driving proved and the conviction followed that.

4. The principal witness for the prosecution was a police officer on motor cycle patrol in the early hours of the day in question. His evidence was that whilst travelling on Gloucester Road westbound he was forced to take evasive action to avoid a collision when another motor cycle suddenly cut across his path coming from Canal Road to the Tonnochy Road fly-over. He activated his siren and flashing light and gave chase and, in due course, intercepted the other motor cycle and ordered its driver to halt. This was on the Harcourt Road fly-over.

5. Having established the driver was called LEUNG Wai-tong and the registration number of his cycle GG5984, he ordered him to proceed to a less exposed position that he designated for the enquiries to continue. But LEUNG disobeyed him. He raced off. The officer followed him. Then there was a high speed chase which took both cycles into the Western District where LEUNG drove through a number of red lights and down a one-way street the wrong way, always at high speed.

6. Presumably because it was so early and the traffic sparse he got away with this without incident. But finally his luck ran out. He collided with a taxi at the intersection of Centre Street and Des Voeux Road West, having run yet another red light. LEUNG came off his cycle and was injured. The taxi was badly damaged but the driver was unhurt. It was not disputed that the cycle was GG5984 and its driver, the injured man, was the defendant, this appellant, called LEUNG Wai-tong. That was the prosecution case.

7. The appellant elected not to give evidence and had no witness to call.

8. Defence counsel at trial submitted that the prosecution should fail, because of its failure to comply with section 68(1) of Cap. 374, namely, that it failed to warn or give notice to the appellant within the requisite time of the prospective and then pending prosecution for reckless driving.

9. There being no argument that the prosecution had not complied with section 68(1) the magistrate nevertheless ruled under section 68(2) that section 68(1) did not apply because it appeared to him that the appellant was not prejudiced in his defence.

10. Before me there are two grounds of appeal. The first is that counsel for the appellant in the court below who happened to be Mr MA, who is before me today, was denied the opportunity to cross-examine the police officer on motor cycle patrol as to whether prior to a prosecution for reckless driving there has to be compliance with section 68(1)(c); that is, that the offender has to be served with notice of an intended prosecution of an offence brought under sections 36, 37, 38 or 41.

11. The magistrate having disallowed the question was, in my view, quite entitled to do so. That was not a matter for a witness of fact but a matter of law. I reject that ground of appeal. In any event the issue is not whether or not there must be compliance or whether or not there had been compliance with section 68(1), for it has been conceded there was not. The issue is whether there was prejudice to the appellant occasioned by that. The magistrate, having found there was not, gave rise to the second ground of appeal.

12. As I have already noted, the appellant at the outset faced only the charge of furious driving. It was only on the first day of trial that the prosecution submitted the alternative charge of reckless driving. His complaint was then, and remains before me on appeal, that he had no forewarning and scant opportunity to consider his position relative to that, and was thereby prejudiced, which would have been rectified by prior notice under section 68(1). And it was not merely an alternative charge based on the same particulars. The furious driving charge was restricted to the location of the collision, namely, the intersection at Des Voeux Road and Centre Street, whilst the reckless driving covered the route beginning at Canal Street and ending at Centre Street.

13. Counsel argued then, and does so now, that this amounted to a drastic change with a different emphasis on the evidence and a different approach by the appellant in the conduct of his defence.

14. The magistrate rejected that argument. He said:

"There is no evidence of any prejudice. Whilst Mr MA's submission is correct, insofar as it goes, that there was a focus in the charge on the point where the accident occurred, it is also clear that the defendant's earlier driving of the vehicle from the point when his driving was first observed was relevant to the allegation of furious driving. In other words, all of the evidence that was called in support of the allegation of furious driving, was admissible and relevant to the allegation of reckless driving."

15. I shall say no more than this. I entirely agree, and adopt the magistrate's reasons to reject also that ground of appeal.

16. The appeal is dismissed.