HKSAR v. TANG CHEN MING

CACC 227/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 227 OF 2002

(ON APPEAL FROM DCCC 185 OF 2002)

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J U D G M E N T

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Stuart-Moore VP (giving the judgment of the Court):

1. On 15 May 2002, the Applicant, aged fifty, was convicted after a trial in the District Court before Judge Wright on charges of dangerous driving, contrary to section 37(1)(a) of the Road Traffic Ordinance, Cap. 374; damaging property being reckless as to whether life would be endangered, contrary to section 60(2) of the Crimes Ordinance, Cap. 200; and inflicting grievous bodily harm, contrary to section 19 of the Offences Against the Person Ordinance, Cap. 212. All these offences occurred on 25 November 2001 at Mongkok Road, a one-way street in Kowloon with six lanes, while the Applicant was driving a borrowed Nissan car, FC 2529. He was sentenced to concurrent terms of two and a half years' imprisonment on all the charges. On the charge of dangerous driving, the Applicant was additionally disqualified from driving for two years and until he passed a test of competence to drive under the provisions of section 70 of the Road Traffic Ordinance.

2. The Applicant now seeks leave to appeal against his sentence, having earlier in these proceedings indicated that he did not wish to pursue an application in relation to his conviction. That application was accordingly dismissed.

3. The incidents with which we are presently concerned occurred soon after 5.00 a.m. They were in three distinct phases. The Applicant, a taxi driver with about thirty years' experience, drove the car which he had borrowed from a friend into the back of a taxi driven by PW1 which had been stationary at a red light. PW1's taxi was shunted by the force of the collision into the back of another stationary taxi waiting at the light. The second taxi was driven by PW2. The sounds of these collisions, which at trial were referred to as the "first collision", were heard by PW7, a police officer who had been driving a police van in the immediate vicinity.

4. Both taxi drivers got out of their vehicles. PW2 was in fact unable to get out of the driver's door and so instead had to get out through the front passenger door. The Applicant was told not to move his vehicle. However, PW1 then observed the Applicant put his vehicle into reverse gear. He proceeded to reverse at what several witnesses described as high speed.

5. The judge summarised the events which followed in these terms:

"There is evidence from a number of witnesses, which I accept, that by this time a small crowd estimated to be some 20 to 30 people, had gathered there.

10. The car mounted and crossed the pavement, still travelling in reverse. In doing so it collided with pedestrians, two of whom testified. PW5 had been walking from East to West along the southern pavement of Mongkok Road: before he reached the intersection with Portland Street he had seen the car driven by the Accused and the two taxis after the collision. He had not paid any further attention to them. He had continued walking. He crossed Portland Street, aware of the knot of people there. He heard a shouted warning that a vehicle was approaching. He saw the people scatter and noticed the rear of the car ... speeding toward him some three metres away. He was unable to avoid it. It struck him, knocking him to the ground. The vehicle continued, entering, partially, the Wing Ming shop. Happily, he was not seriously injured. He got up from the ground.

11. He observed the driver of the car (the Applicant) holding the gear lever and change gear. The car drove out of the shop past him, across the pavement in Portland Street, along the pedestrian crossing in Portland Street and into Mongkok Road. He had then noticed someone lying on the floor of the shop.

12. The second pedestrian to testify, PW4, a thick-set man, was not so fortunate. He had emerged from an adjoining building, turned East and walked several paces along the southern pavement of Mongkok Road. He too noticed the knot of people. He heard the sound of an engine racing, then saw the car, that driven by (the Applicant), about a metre from him: he has 30 years driving experience and was able to recognise the sound of the car's engine accelerating as well as the sound of the tyres. He, too, was unable to avoid the car. It collided with him, propelling him through the air and through the 12 mm thick plate glass window of the Wing Ming shop. The car then followed him into the shop and came to a halt on his leg. In his words: 'Then the car was driven away.' Understandably, he did not monitor its progress. He was later removed to hospital. I shall refer to these events collectively as the second collision.

13. The progress of the car driven by (the Applicant) after re-entering Mongkok Road was observed by a number of the witnesses. In any event, (the Applicant) does not dispute that the car weaved its way along Mongkok Road towards Nathan Road; that it struck a glancing blow to the nearside rear corner of the police van which was parked in the first traffic lane on the southern side of Mongkok Road; that it then collided with and extensively damaged a taxi, JH9361, driven by PW3, which was stationary in the traffic lane adjacent to and slightly ahead of the police van; that it then collided with yet another taxi, GS6228, driven by PW6 which was stationary in the traffic lane adjacent to JH9361. The car driven by (the Applicant) came to a halt. I shall refer to these events collectively as the third collision.

14. PW3 had heard both the first and second collisions: he had put his head out of the window of his taxi to see what was happening. He saw the car driven by (the Applicant) weaving towards his taxi at high speed along Mongkok Road. He suffered a minor injury in the impact with his vehicle. He confirmed that the force of the impact was sufficient to propel his vehicle forwards, about a car's length, onto the pedestrian crossing. PW6 in the taxi alongside him had heard a noise from behind, looked in her rear-view mirror, seen the car driven by (the Applicant) 'fly out' from Portland Street and approach her: her vehicle was then struck. After the collision she moved her vehicle forwards and alighted, fearing an explosion. She, too, suffered a minor injury.

15. PW7 had heard the sound of the second collision whilst parking his vehicle. He had alighted and observed the car driven by (the Applicant) emerging from the shop. He confirms that it travelled towards him at high speed .... After the car came to a halt, he went over to a position near to it. He saw (the Applicant) holding onto the steering wheel with his right hand and making movements with his left hand to his left-hand side: he could not see what he was doing as (the Applicant's) body obscured his vision. He heard the engine of the car racing. He pointed his gun at (the Applicant) and ordered him to alight but he was ignored: (the Applicant) continued to move the steering wheel and to race the engine although the car remained stationary. After a few seconds (the Applicant) opened the door, alighted and walked towards PW7 who handcuffed him and placed him into the police van." (Appeal bundle pp. 12-14)

6. The Applicant was described by a police officer (PW8) who later attended the scene as "extremely excited". The Applicant was seen in particular to be laughing and stamping his foot from time to time. A breath test revealed no sign that the Applicant had been drinking. On arrest, the Applicant stated that: "the car could not be stopped by braking. I could not halt the car." As to this, a point has been made today by Mr Whitehouse on the Applicant's behalf that this car was one with which he was very unfamiliar. That being said, the evidence revealed that he had borrowed the car some two hours before these incidents and had been "joyriding" with a number of his friends.

7. Subsequent examination of the vehicle showed that the car, which was fitted with an automatic gearbox, had been in good condition. The braking and the steering systems had been working perfectly but this series of collisions had rendered the car undriveable although the engine itself was still capable of running.

8. The Applicant's case at trial was that this series of events amounted to a simple accident. After the first collision with two taxis, and being unfamiliar with this car, he wanted to put the gear stick into 'park'. However, he was scared and somehow got himself into 'reverse' instead. He then tried to put his foot on the brake but must have pressed the accelerator by mistake. After reversing, he suddenly found himself going forwards again as his hand "hit the gearshift". He tried to steer in a way which avoided colliding with the last of the three vehicles but he was unable to do so.

9. In the circumstances, the rejection of the Applicant's testimony was hardly surprising. The judge found that the Applicant had tailored his evidence to suit his own purposes, and that his evidence was unbelievable and contrived. In particular, with relevance to the present proceedings, the judge said:

"I do not accept that a man with 30 years driving experience and who is a professional driver would 'accidentally' engage reverse gear, travel backwards, without looking, for .... between 15 to 20 metres, mount a pavement, plough into pedestrians, enter a shop, 'accidentally' knock the gearshift into a forward gear, then drive forwards for something like ..... 50 metres, before hitting three more vehicles, all the time being under the misapprehension that he was applying the footbrake of the car." (Appeal bundle pp. 20-21)

A little later the judge said that he was satisfied that the Applicant had:

"deliberately engaged reverse in an attempt to flee the scene of the first collision; that he had deliberately engaged a forward gear in order to extricate the vehicle from the scene of the second collision; and that even after the third collision (the Applicant) was still attempting to get the vehicle under way." (Appeal bundle p. 21)

It almost goes without saying that if the Applicant had really wanted to stop, all he needed to do was to turn off the ignition in the car.

10. Mr Frederic Whitehouse submitted that the overall sentence of two and a half years' imprisonment was manifestly excessive. Not at all surprisingly he did not complain about the period of disqualification on the first charge but, on instructions, he invited us to consider the propriety of the order requiring the Applicant to retake the driving test.

11. Mr John Reading, SC, on whom we did not need to call beyond having considered his most helpful written submissions in this application, maintained that the offences committed by the Applicant amounted to a scenario which came close to being the worst of its kind and, for this reason alone, fully merited a sentence which was near to the three-year maximum for dangerous driving. In particular, in the course of trying to escape from the scene after the initial collision, the Applicant had knocked down PW4 who was propelled through the air and then through a 12 mm thick plate glass shop window. This was done by the Applicant at a time when he was driving fast in reverse while not even looking to see where he was going and at a time when he was trying to get himself away from the trouble he was already in. PW4 was probably lucky to have escaped with a fractured pelvis and right ankle and a number of less serious injuries. The Applicant had also knocked down one other pedestrian who fortunately received only minor injuries. After that, the Applicant crashed into three more vehicles, all of which were stationary, before the car he was driving was rendered immobile. In the result, a total of four people were injured, and no less than four taxis, a police van and a shop were damaged. It was, as Mr Reading aptly expressed it in his written submission, sheer luck that only one person received serious injuries.

12. We have been referred to Secretary for Justice v Ko Wai-kit [2001] 3 HKLRD 751 which had a number of similar features to it when compared to the present application. In that case, which was, if anything, an even more serious example of dangerous driving, a three-year term of imprisonment as a starting point, and a five-year driving ban, were considered appropriate by this court. However, Mr Whitehouse, on express instructions from the Applicant when writing to the court before these proceedings began, brought to our attention press reports about two other examples of dangerous driving to have come before the courts. If those reports are accurate, the Applicant may well have a point that the offenders in those cases were dealt with in a manner which was far too lenient. However, as Mr Whitehouse will no doubt have advised the Applicant, wrong decisions leading to excessively lenient sentences imposed on others in different cases by different judges or magistrates will not afford an applicant grounds of appeal in unrelated proceedings.

13. The question for us to determine is whether this Applicant's sentence was a proper one. We can see no validity in the complaint that a sentence of two and a half years' imprisonment was too severe.

14. Again, on instructions, Mr Whitehouse has informed us that the Applicant takes specific exception to the part of the judge's order requiring him to retake the driving test at the completion of his period of disqualification. There may be something in this point because of the Applicant's lengthy driving experience. As to this, we shall grant leave to appeal and treat the hearing as the appeal and quash the order, pursuant to section 70 of the Road Traffic Ordinance, that the Applicant should retake the driving test.

15. However, having regard to our powers under section 83 I, we have concluded that the two-year disqualification should also be quashed because it was far too short. In its place, we propose to order that the Applicant, who has shown himself to be a dangerous menace to other road-users, should be disqualified for four years.

16. The effect of these proceedings, therefore, is that the sentence of imprisonment will stand, the disqualification is increased from two years to four years and the order to retake the driving test is quashed.