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HCMA001608/1990
IN THE SUPREME COURT OF HONG KONG
APPELLATE JURISDICTION
MAGISTRACY APPEAL NO. 1608 OF 1990
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BETWEEN
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The Queen
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Respondent |
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Johnny Yiu |
1st Appellant (Dl) |
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Sin Chi-ming Anthony |
2nd Appellant (D2) |
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Heung Moon-wah |
3rd Appellant (D3) |
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Coram: Hon. Hooper, J. in Court
Date of hearing: 22 January 1991
Date of delivery of judgment: 12 February 1991
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JUDGMENT
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1. On the 10th October, 1990, the three appellants were convicted of reckless driving, contrary to s.37(1) of the Road Traffic Ordinance, Cap. 374 of the Laws of Hong Kong. In each of the charges, the allegation was that the defendant drove his private car at sections of Pui Ching Road, Princess Margaret Road, Hong Chong Road and Salisbury Road recklessly. The 1st defendant and the 3rd defendant were fined $10,000, and ordered to pay cost of $5,000 and were disqualified from driving all classes of vehicle for a period of 18 months. The 2nd defendant was fined $10,000 and ordered to pay cost of $5,000 and to be disqualified from driving all classes of vehicle for a period of 24 months and ordered to serve a three months' imprisonment term which was suspended for one year.
2. All the appellants appeal against conviction and whilst the 1st and 3rd appellants had also appealed against sentence they have now abandoned the latter appeal.
3. The basis of the charge of reckless driving against the appellants was that they were driving around a circuit covering the roads in question referred to in the charge at high speed with little or no regard for other traffic users. A number of police officers gave evidence from various observation posts around the circuit, overlooking stretches of the roads in question.
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The Magistrate in his Statement of Findings said :
"I find all Prosecution witnesses to be truthful and reliable. I have no hesitation to accept the prosecution evidence and this isso despite some minor discrepancies which I found insignificant and probably due to lapseof time and these, in no way,affect the truthfulness and the reliability of the Prosecution witnesses.
There were ample evidence in this case to show beyond reasonable doubt that all three appellants had driven in a manner as to create an obvious and serious risk of causing physical harm to some other persons who might be using the road or of doingsubstantial damage to property, and in driving in that manner, the appellants did so without having given any thought to the possibility of there being any such risk or having recognised that there was risk involved, had none the less gone on to take it."
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4. The Magistrate therefore gave himself the classic direction on reckless driving as laid down in R. v. Lawrence [1981]73 CAR 1 HL. He then set out his findings which had been established to his satisfaction beyond reasonable doubt as follows :
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"(i) |
All the appellants had driven at high speed as described by the various officers stationed at observation posts 1 - 5, the estimates given by these police officers are approximate and I have no doubt that these estimates were close and accurate, and in Exhibits' p.5 and p.6, 2 original video tape- recordings, I had seen some of their manner and speed of driving;
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(ii) |
The speedometer in the 2nd appellant's Ford Sierra EF3605 was not operative at the time as described by PW1;
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(iii) |
That amongst the vehicles observed, I have no doubt, because of the continuity in time and in the location of the sightings of these vehicles by officers in the five observation posts, that the red Porshe seen was EJ6413 driven by the 1st appellant, the Ford Sierra was EF3605 driven by the 2nd appellant and the orange Toyota with a black Spoiler at the rear was Y2385 driven by the 3rd appellant;
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(iv) |
a. The Porshe driven by the 1st appellant had cut lanes and on two occasions, once at 0507 hours as witnessed by PW8, at Princess Margaret Road, it cut from third into second lane without indicator and caused the taxi having to slow down, and the second occasion was witnessed by PW2 and PW4 at about 0511 hours, it cut into the lane of a taxi causing the latter to brake in order to avoid a collision;
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b. The 1st appellant's vehicle was also seen by PW6 to have charged through red traffic lights at Pui Chong Road at about 0507 hours, and again at 0510 hours. PW8 also saw the same incidents.
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c. PW10 at 0508 hours saw the 1st appellant's vehicle (with 2 others) at Salisbury Road South Bound cutting from first lane. onto the second. lane to get into a U-shape turn into Hong Chong Road North Bound at high speed, and in doing so, cut into the path of a private car travelling on the second lane causing it to brake abruptly in order to avoid collision. PW11 also witnessed the same incident and gave evidence that the private car left behind a 3-metre long brake mark on the road. He drew a sketch, Exhibit p.12.
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(v) |
The 2nd appellant's car had also been seen by PW6 and PW7 to have jumped or charged though red traffic lights at Pui Ching Road at about 0507 hours. The 2nd appellant's vehicle was also one of the three vehicles seen by PW10 and PW11 to have travelled on the first lane of Salisbury Road South Bound cutting onto the second lane and turning right into another road at about 0508 Hours and in doing so, cut into the path of a private vehicle travelling on the second lane causing it to brake abruptly leaving a 3-metre long brake mark on the road;
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(vi) |
The 3rd appellant's vehicle was also witnessed by PW6 and PW7 at about 0510 hours to have charged through red traffic lights at Pui Ching Road.
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His vehicle was also seen by PW8 at about 0509 hours to have swerved from the econd lane of Princess Margaret Road North Bound to the first lane and in doing so, crossed double whitelines, and then swerved past double white lines again to the second lane, then onto the third lane travelling north.
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The manner of the three appellants' driving, the speed they were driving, and the risks they had created on the road, are overwhelming evidence to support a charge of Reckless Driving." |
5. Although the evidence of the speed at which the appellants were driving, varied considerably according to what manouvring they were doing at the time, it is clear from the evidence of the witnesses that all three of them were estimated to have driven at speeds ranging between 140 and 160 k.p.h. Furthermore, there is nothing in the tape-recordings which can throw serious doubt on the estimates of the police officers.
6. In perfected grounds of appeal filed on the 18th January, 1991, the appellants, through their Counsel, Mr Paul T Y. Tse, has attacked the Magistrate's findings as follows :
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(1) |
The learned Magistrate erred in accepting the estimates of speed by various police officers as the accurate speed of the vehicles;
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(2) |
The learned Magistrate failed to consider thatat Salisbury Road South Bound which vehicles caused private car to brake abruptly;
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(3) |
The learned Magistrate failed to consider or to consider adequately that whether the braking and slowing down of the taxi and the private car were caused by the appellant's driving; and
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(4) |
The learned Magistrate failed to consider or to consider adquately whether the jumping of red lights were reckless or not in the circumstances." |
7. So far as the first ground is concerned, Mr Tse is not saying that a police officer cannot give evidence as to his estimate of speed. However, he draws attention to the fact that in the Road Traffic Act of 1972 in the United Kingdom, the evidence of two police officers' estimates were required by statute. He has endeavoured to persuade me, by a calculation based upon the distance which the vehicles would have travelled and the times they appeared at various locations, that it was not possible for them to have reached the high speeds estimated by the police officers. There is, however, no merit in this point because it is clear that the appellants drove at variable speeds at different times and obviously had to slow down to take corners and bends. In my judgment, there is nothing in this first point.
8. So far as the second ground is concerned, Mr Tse criticizes the Magistrate on his findings that it was the appellant's vehicle which had caused the other private vehicle to brake abruptly without the driver of the other vehicle being called to give evidence. There may have been other reasons for the other vehicle to slow down and brake, he argues.
9. So far as the third ground is concerned, he argues that it was not established whether the braking by the taxi was caused by the 1st appellant's vehicle or the 2nd appellant's vehicle or by both of them, and the driver of that vehicle also was not called to say why he had to brake.
10. So far as the fourth ground is concerned, Mr Tse argues that jumping red lights is not per se reckless driving. He argues that one has to consider the circumstances prevailing at the time and whether there are other vehicles in the vicinity. In this base, he submits that the appellants would have been able to see if there were other vehicles which were likely to be endangered by the appellant's action of jumping the red lights.
11. Mr Tse in effect argues that the various aspects of the appellants' driving set out in the findings of the Magistrate above do not, in themselves or cumulatively, reach a standard of driving which could be said to be reckless. Mr Reading, for the Crown, points out that the statutory requirement of two witnesses' estimates of speed is not in force in Hong Kong. Furthermore, he relies upon Sherrard v. Jacob [1965] N.I. 151 and R. v. Palmer [1961]1 N.S.W.L.R. 209 to support the Magistrate's reliance upon the estimates of police officers as to speed. He argues that there was ample evidence to support the Magistrate's findings and, in particular, that the risk involved potential danger to other road users.
12. Mr Tse replies that what the Magistrate has done is lump a whole lot of different pieces of driving together and called them reckless driving.
13. In my judgment, the Magistrate was entitled to do this. The duration of the period which covered the standard of the appellant's driving for the purposes of their respective charges, was from roughly 0507 hours to 0512 hours, a period of some five minutes.
14. In Horrix v. Malam [1984] RTR 112, the Queens Bench Division in England (Robert Goff L.J. and McNeill J.) held that separate observations over a period of some ten minutes and some two miles in distance were observations of one continuous activity and that the information was not bad for duplicity.
15. In my judgment, it was open to the Magistrate on his findings set out above to conclude that the standard of each of the appellant's driving amounted to reckless driving, and he was entitled to convict them on that basis.
16. For these reasons, the appeal is dismissed.
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(N.B. Hooper)
Judge of the High Court
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Representation:
Mr Paul T.Y. Tse instructed by M/s. Gary Mak & Co, for Appellant 1, 2 & 3
Mr J. Reading, C.C. for the Crown
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