THE QUEEN v. KWOK WAI-MING

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

Magistracy Appeal No. 764 of 1986

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BETWEEN

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JUDGMENT

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1. The Appellant in this case appeals against his conviction by the Magistrate at Tsuen Wan, for failing to give information under Section 63 of the Road Traffic Ordinance, Cap. 374.

2. This case arises out of a case of illegal road-racing along the Castle Peak Road at 3 a.m. on 4th May 1986. The police cordoned off the road and tried to stop the vehicles involved. Some vehicles did stop, others did not. The police noted down the registration numbers of some of those that did not stop. One was a white Datsun car BW8372, which was travelling ahead of the others at very fast speed.

3. The police discovered that the registered owner of this car was the Appellant KWOK Wai-ming. Accordingly they served a notice on him on 8th May under Section 63(1) informing him that the driver of his car was suspected of having committed the offences of Illegal Road Racing and Reckless Driving at 3 a.m. on 4th May at Castle Peak Road, and requiring him to identify the driver concerned.

4. On 27th May the police got back the notice from the Appellant together with a letter. In the notice the name of the driver was stated to be "unknown". In his letter the Appellant stated inter alia that he parked his car the previous night and that at 8 a.m. the next morning he did not find anything unusual with the car and that he did not think it had been used by anybody that night.

5. In view of this reply he was charged on 4th June for failing to give information contrary to Section 63(1) and 63(6)(a) - viz. that the offence of illegal road racing was suspected of having been committed on 4th May by the driver of BW8372, of which he was the registered owner and that he had failed on demand to give the name, address and driving-licence-number of the driver.

6. The Appellant pleaded not guilty. At the hearing on 24th June the Appellant was unrepresented and the trial procedure was explained to him. The evidence for the prosecution was given by two police officers who had witnessed the road racing on the night in question. They testified that BW8372 was the first vehicle involved in the race and that they were unable to stop it. In cross-examination each officer was asked by the Appellant whether he had been able to see the car's registration number, and each said he had seen it.

7. At the close of the Prosecution the Magistrate ruled that the Appellant had a case to answer and he explained his rights to him. The Appellant elected to give evidence.

8. The Appellant works at night as a fish-wholesaler. He testified that he parked his car at the fish-market the previous evening; that he was working there at 3 a.m.; that next morning there was no sign that the car had been moved; that he had enquired of his 3 employees and his family members, all of whom have duplicate keys to the car, and they had all denied using the car then. He concluded by saying that he did not think that the car had been used that night because there was no sign that it had been moved.

9. So the Appellant challenged the police allegation that his car was involved in the road racing on Castle Peak Road that night, and he suggested that it actually remained parked at the Fish Market throughout the night.

10. The learned Magistrate dealt with this issue firmly and decisively in his statement of findings.

11. Having at the outset declared that he found both police officers to be "straight forward and sincere witnesses" he went on later to find that:

"the Prosecution had proved beyond reasonable doubt that BW8372 had been racing other vehicles along Castle Peak Road at 3 a. m. on 4th May 1986. "

12. This positive finding disposed of the Appellant's main contention that his car was not involved in the road race that night, and Mr. Haldane does not attempt to dispute this.

13. But he does dispute the manner in which the learned Magistrate dealt with the Appellant's second line of defence - viz. that, if the car was involved in the race, he did not know who was driving it.

14. Section 63(5) in fact provides such a defence, and it is set out in the following terns:

"(5)    In proceedings for an offence under subsection (6)(a), it shall be a defence for the defendant to show that he did not know, and could not with reasonable diligence have ascertained, the name or address or driving licence number of the driver of the vehicle at the time of the alleged offence...".

15. This defence was not explained to the Appellant. But he claimed in evidence that he did not know who the driver was, in spite of making full investigations and using all due diligence. So whether or not he was specifically aware of this defence, he sought to avail himself of it.

16. The learned Magistrate did not accept his evidence and found him "completely unbelievable". Further he rejected what the Appellant had written in the notice and in his letter, and he also rejected the Appellant's claim that "this was done without his knowledge".

17. Mr. Haldane for the Appellant criticises the learned Magistrate for failing to consider or refer to the burden of proof thrown on the Appellant under Section 65(5) - viz. to satisfy the court on the balance of probabilities.

18. If the learned Magistrate had not taken such a forthright view of the Appellant's defence, it would have been important for the Magistrate to show that he did appreciate the limited burden thrown on a defendant by section 62(5). But in this instance he specifically rejected the Appellant's claim that the Appellant's vehicle had been used in the road-race without his knowledge, and he also rejected what the Appellant had written on the notice and in his letter.

19. It is therefore quite clear that the Appellant completely failed to satisfy the learned Magistrate even on the balance of probabilities.

20. So in the particular circumstances of this case, I do not consider there is any validity in this point raised by Mr. Haldane.

21. There is no merit whatsoever in Mr. Haldane's next point - that the lapse of time between the Appellant's conviction on 24th June and the Magistrate's findings 23 days later is unsatisfactory and unreasonable.

22. Section 114 of the Magistrates Ordinance, Cap. 227, sets out the procedure for appeals. Section 114 (a) provides that an appellant shall give notice of appeal to the Magistrate's clerk within 14 days after the day of his conviction; and Section 114(b) requires the Magistrate to cause a notice of his findings to be served on the parties "within 15 days after the day on which the notice of appeal was given".

23. When the notice of appeal was given to the Magistrate's clerk and when the Magistrate caused a copy of his findings to be served on the Appellant is not clear. But the Appellant signed his notice of appeal on 3rd July and the Magistrate signed his findings 14 days later on 17th July. If those are taken as the relevant dates, the learned Magistrate acted within the time limit laid dorm by Section 114 (b) and cannot be criticised.

24. The lapse of time between conviction and findings is not relevant. But seeing that the Ordinance provides for a time scale of 29 days, the 23 days in this case was in no way unreasonable.

25. There is however greater force in Mr. Haldane's further point in connexion with the Magistrate's final finding of fact.

26. At this stage the Magistrate had -

        (1)     found that the Appellant's car took part in the road-race at 3 a.m. that night and

        (2)     rejected the Appellant's claim that he did not know the identity of the driver,

and all that remained was for the Magistrate to find that the Appellant had contravened Section 62(1) by not providing the information that he had been required to give.

27. But instead of doing this the learned Magistrate vent on as follows

"I was left in no doubt that either the Appellant eras the driver of BW8372 on the Castle Peak Road at 3 a.m. on 4/5/1986 or he well knew who the driver was; and this I found to be the eighth fact found to be proved."

28. Mr. Haldane submits that this "either/or finding" is unwarranted and unsatisfactory, and if it means anything, he suggests it shows that the Magistrate purported to convict the Appellant of an offence with which he had never been charged.

29. So he argues that the Magistrate's verdict that the Appellant was guilty under Section 63 is unsafe and unsatisfactory.

30. I accept Crown Counsel's argument in reply that the learned Magistrate's "either/or finding" may have been a reasonable inference to be drawn from his rejection of the Appellant's claim that he did not know the identity of the driver. But far from being a fact, it is a pair of alternative suppositions. Moreover it was unnecessary to make any such "finding".  For neither is an ingredient of this particular offence.

31. In order to establish this offence, it has to be proved that the defendant failed to give the required information, viz. the identity of the driver of the vehicle at the time of the alleged offence.

32. The learned Magistrate never made such a finding, and he seems to have thought that it was necessary to draw a completely different conclusion in order to complete the offence.

33. If that is so, there is no basis for his verdict that the Appellant was guilty of an offence under Section 63.

34. However Crown Counsel has pointed out that, in his statement of findings in respect of the appeal against sentence, the learned Magistrate indicated that it is important that people who can give information to the police should cooperate and make that information available. The learned Magistrate then rent on to consider the necessary penalties where -

35. I accept Crown Counsel's submission that this shows that the learned Magistrate proceeded to sentence the Appellant, not because he was the driver himself or he knew the identity of the driver, but because he had failed to provide the required information.

36. Accordingly although the Magistrate seemed to find the Appellant guilty on the basis of a finding that was not the correct ingredient of the offence, no miscarriage of justice has actually occurred. For in spite of what he wrote immediately prior to giving his verdict, it does seem that the Magistrate had in mind the Appellant's failure to provide inform-ation to the police. That is what the Appellant eras charged with, and that is the ingredient which was required to be proved.

37. Having stated that he was left in no doubt that either the Appellant was the driver of BW8372 on Castle Peak Road at 3 a.m. that night or that he well knew who was the driver, he could have made the further inference that, in either case, the Appellant was in a position to provide the required information. This would have enabled him to conclude that the Appellant had failed to give the required information, and was therefore guilty of the offence charged.

38. It seems to me that the learned Magistrate came to the correct decision, even though he did not formulate sufficiently or with sufficient accuracy the different steps by which he came to it. If he had done so he must have concluded that the Appellant had failed to give the information.

39. There was no chance fairly open to the Appellant of being acquitted on the findings that the Magistrate did make, and the short-cut that the Magistrate took did not deprive the Appellant of any such chance.

40. In these circumstances I consider that this would have been a suitable case to apply the "proviso", and therefore under Section 119(d) of the Magistrates Ordinance, Cap. 227, I make such order as I think just, and dismiss this appeal against conviction.

41. As for the appeal against sentence, the Magistrate imposed a fine of $3,500 and disqualified the Appellant from driving any Class I vehicle for a period of 18 months.

42. In his reasons for sentence the learned Magistrate decided to deal with the Appellant as a person who had deliberately failed to cooperate with the police and had thereby thwarted their attempts to prosecute illegal racers. He considered that such a person deserved a "penalty set at the same level as the offending driver" and he added that this was how he arrived at the penalty he imposed.

43. Under Section 65(6) the penalties for failing to give information are a fine of $10,000 and imprisonment for 6 months. But there is the further unusual penalty provision which reads as follows:

"(7) Where 2 person is convicted of an offence under subsection (6) and the offence of which he is convicted is an offence in connexion with the giving to a police officer of the name, address and driving licence number of the driver of a vehicle at the time of an alleged offence, the court before whom that person is convicted shall have regard to the facts of the alleged offence in considering -

 

(a)		the amount of any fine, or period of imprisonment, to impose; and
(b)		the period, if any, for which to order such person to be disqualified.

                for the offence under subsection (6 )."

This provision means that the Court must have regard to the facts of the alleged offence, when considering the amount of the penalty it intends to impose under Section 63(6).

44. In this instance, the alleged offence was illegal road racing, contrary to Section 55(1). That is a very serious offence, as can be seen from the fact that the penalties for such an offence are a fine of $10,000 and imprisonment for 12 months. Moreover the Court of Appeal has stated that custodial sentences will "generally be justified" for this offence (A.G. v. TAM Chi-man, Cr. App, 19 of 1980), and Cons J.A. has stated that they are "imperative", unless there are very special considerations (R. v. YUEN Kwok-hing, Cr. App. 539 of 1983).

45. As for the facts of the alleged offence in this case, I have already outlined these at the start of this judgment.

46. The illegal road racing took place along the Castle Peak Road about 3 a.m. at night.

47. Clear and full evidence on what happened was given by PW1 (Sgt. 16009) and PW2 (PC 20954). It seems that the group of cars first raced along the road from Tsuen Wan very fast and close together, and then they turned round and came back along the road to the point where the officers tried to stop theme According to PW1 there were about 7 or 8 cars being driven "very fast" and with their lights off, and the first car was BW8672, which was about 40 yards ahead of the others and travelling "at a very fast speed". According to PW2, there were about 10 cars, and BW8672 was about 40 or 50 yards in front of the others and travelling at 70 miles per hour with its lights off.

48. The police vehicle had its headlights switched on across the road, and its flashing blue light was also switched on. Further a Woman Police Constable was signalling to the vehicles to stop. But they did not succeed in stopping BW8672.

49. These facts indicate that it was a serious case of illegal road racing, and that the Appellant's car was the leading car in the group.

50. Mr. Haldane accepts that the penalty imposed by the learned Magistrate in this case falls correctly within the tariff for this offence.

51. But he submitted that the Magistrate wrongly sentenced the Appellant as the driver, and that the sentence was therefore manifestly excessive.

52. However as I have already indicated, I am satisfied that the Magistrate treated the Appellant, not as the driver, but as a person who had failed to give information about the driver in the alleged offence. Indeed if the Magistrate had treated the Appellant as the driver, he would no doubt have imposed a custodial sentence!

53. Nevertheless the facts of the alleged offence must be taken into consideration. They are serious and make this a bad case of failing to give information under Section 63. If it is accepted that the present sentence falls within the tariff for this offence, I do not accept that the sentence was manifestly excessive. In fact the Appellant is fortunate that he too was not given a custodial sentence, instead of a fine.

54. Finally Mr. Haldane argues that there should be no disqualification, because (a) the Appellant was not convicted of road racing and (b) he uses his vehicle at this work.

55. Section 69 deals with disqualification and Section 69(1)(b) provides that a court may order a person to be disqualified who is convicted of "an offence under Section 63(6)".

56. Of course the Court is required by Section 63(7) to have regard to the facts of the alleged offence. In this case the alleged offence was illegal road racing, for which disqualification is mandatory, and an order for total disqualification for 2 years has been upheld recently in a bad case of illegal road racing.

57. I have already indicated that the facts of the alleged offence are serious and make this a bad case of failing to give information.

58. Accordingly it seems to me quite appropriate that an order for disqualification for a period of 18 months should have been imposed for this offence, but that it should have been limited to vehicles of the same class as BW8672 and the other vehicles used in the alleged offence - viz. Class I or private cars.

59. As for (b), it now seems to be settled practice that where the offender is a professional driver, and he has committed the offence while driving a vehicle of a different class from that used by him in earning his living, disqualification may be limited to the class of vehicle used in the offence, so that he may continue his profession, provided his driving is not a danger to other persons using the roads.

60. But that is not the case here. For this Appellant is not a professional driver. Indeed he already employs people who can drive his car, so his business will not be affected in any way. I think it would be wrong in principle and on the facts to make no order for disqualification in this case simply because the Appellant uses his car at work.

61. Accordingly this appeal against sentence is also dismissed.