HKSAR v. NG KA KIT AND OTHERS

HCMA112/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.112 OF 2008

(ON APPEAL FROM TMCC 3514 OF 2007)

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J U D G M E N T

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1. The appellants were charged jointly with participating in motor racing, an offence contrary to section 55(1)(a) of the Road Traffic Ordinance, Cap. 374.  Each appellant was separately charged with using a motor vehicle without third party insurance, an offence contrary to section 4(1) and (2a) of the Motor Vehicle Insurance Ordinance, Cap. 272.  The appellants were also separately charged with individual contraventions of the Road Traffic (Construction and Maintenance of Vehicles) Regulations with respect to alleged mechanical defects of their motor vehicles.

2. Each appellant was separately charged, as an alternative charge to the 1^st charge, with Dangerous Driving, an offence contrary to section 37(1) of the Road Traffic Ordinance. 

3. After a trial before Mr Smout, Magistrate each was acquitted of motor racing but was convicted of the alternative charge of dangerous driving.  Each appellant was acquitted of the charge of using a motor vehicle without third party insurance but convicted of the mechanical defects charges.

4. The appellants now appeal against their convictions on the dangerous driving charges only.  They also appeal against their sentences on those convictions.  On those charges the magistrate fined the 1^st appellant HK$9,000 and disqualified him from holding or obtaining a driving licence for a period of 18 months and the remaining appellants were each fined HK$6,000 and disqualified from holding or obtaining a driving licence for 9 months.

Summary of evidence relevant to the dangerous driving charges

5. The evidence before the magistrate was that in the early hours of the morning of 6 May 2007, the police carried out an anti-dangerous driving operation at Route Twisk in the New Territories. 

6. Four observation posts manned by police officers were set up along that road in the early hours of that morning.  Observation posts 3 and 4 were where police officers made observations as to the nature of the respective appellants’ driving that morning which resulted in their being charged with road racing but ultimately convicted of dangerous driving.

7. Photographs showing the observation posts and their locations and the conditions of the road were produced in the trial and are included in the appeal bundle, as is a sketch which depicts that part of Route Twisk between Pat Heung and Tsuen Wan.  That part of Route Twisk, it is accepted, is descending from the direction of Tsuen Wan in the direction of Pat Heung.

8. It was not in dispute in the trial that the 1^st appellant was the driver of a motor vehicle bearing registration number CE3468; the 2^nd appellant was the driver of a vehicle bearing registration number JA5011; the 3^rd appellant the driver of a vehicle bearing registration number CW332; and the 4^th appellant was the driver of a vehicle bearing registration number LT3903 and I will refer to them in the course of this judgment as the respective appellants’ cars.

9. The speed limit of the road where the offences were alleged to have taken place was 50 kph.  The road itself was a dual carriageway with double continuous white lines dividing the lanes.  The sketch produced has marked on it the location of the observation posts and the place where the appellants were apprehended.  The photographs likewise give a clear picture of the places where the offences were alleged to have occurred. 

10. At 3:39 a.m. a police officer described as PW5 was at observation post No. 3 which was situated on a hair pin bend.  He was alerted over the beat radio to the fact that there were vehicles approaching.  He saw a dark private motor car, the registered number of which he subsequently determined was CE3468, that is the 1^st appellant’s car, travelling at about 40 kph in the direction of Pat Heung.  He saw that three other private motor vehicles were travelling in the same direction at a very fast speed approaching the 1^st appellant’s vehicle from behind.  He estimated their speed to be approximately 60 to 70 kph.  As they approached the rear of the 1^st appellant’s vehicle, that car, that is the 1^st appellant’s car, immediately accelerated.  The three other vehicles also accelerated.  PW5 in evidence estimated that the speed of all four vehicles reached approximately 90 kph.  The 1^st appellant’s vehicle, he observed, was straddling the double continuous white lines in the middle of the road.  The vehicle immediately behind his, that is the 2^nd appellant’s vehicle, also straddled the double continuous white lines in the centre of the road.  The third vehicle, which was the 3^rd appellant’s car, was about 2 metres behind.  The distance separating the 1^st appellant’s car and the 2^nd appellant’s car was at that time observed to be approximately 1 metre.  Returning to the 3^rd appellant’s vehicle, that car was approximately 2 metres behind the 2^nd appellants’ car.  It also straddled the double continuous white lines in the centre of the road.  The 4^th appellant’s vehicle, which was the fourth in line was observed to be wholly on the wrong side of the road.  The distance between them i.e. the 4^th appellant’s vehicle and the 3^rd appellant’s vehicle was about 1 metre.  As the vehicles passed PW5 at his observation post, he estimated their speed to be approximately 80 kph.  He observed them passing the observation post and again his evidence was at that time the 1^st appellant’s vehicle was still straddling the double continuous white lines.  The 2^nd appellant’s vehicle had moved back into its own lane.  The 3^rd appellant’s vehicle was wholly in the opposite lane and the 4^th appellant’s vehicle remained wholly in the opposite lane.  When passing PW5, he estimated that the 1^st and 2^nd vehicles again were 1 metre apart and the 3^rd and 4^th vehicles were about 2 metres apart.  That was the first observation made.

11. PW6, another police officer, was deployed at what was described as observation post No. 4 where there were road works which were governed by temporary traffic lights.  The result of which was to reduce the carriageway at that point to one lane.  He, like the previous witness, was alerted to the presence of the vehicles over his beat radio.  His evidence was at about 3:41 a.m. he heard a loud engine noise, and observed a dark-coloured private car to his left.  He noted at that time that the traffic lights governing the Pat Heung bound traffic were showing amber.  He observed the dark-coloured private car approaching and estimated its speed at about 90 kph.  This was the 1^st appellant’s vehicle.  PW6 saw that there were three vehicles travelling behind that.  The four vehicles were travelling in tandem at similar speed, and he estimated they were half a vehicle’s length apart one from the other.  Again, he estimated their speed was 90 kph.  When the four vehicles drove past PW6, he observed at that time that the traffic light for traffic down for Pat Heung had already turned to red.  It was his evidence that the four appellants had passed through the red traffic light at high speed.

12. All four appellants’ were apprehended at a roadblock further along Route Twisk.

13. When considering his verdict, the magistrate noted that as regards to the 1^st charge, the burden was on the prosecution to prove beyond reasonable doubt that the appellants were participating in a race or trial of speed along that stretch of Route Twisk.

14. He concluded that the manner of the driving of the vehicles as observed by PW5 and PW1 created a strong suspicion of illegal road racing.  But he was not satisfied beyond a reasonable doubt that the appellants were in fact participating in a race or trial of speed, and as a consequence all appellants were acquitted of that charge. 

15. However insofar as the alternative charge of dangerous driving was concerned, the magistrate noted that along that stretch of Route Twisk the speed limit was 50 kph.  In the vicinity of observation point 3, there were double continuous white lines dividing the lanes and the road was at that point and in other parts winding.  He found as a fact that the speed of all four vehicles when approaching the observation post No. 3 was approximately 90 kph.

16. He accepted the evidence of the police officer that the 1^st appellant’s vehicle had straddled the double white lines in the middle of the road.  He accepted that the police officer’s evidence that the 2^nd appellant’s vehicle which was approximately 1 metre behind that of the 1^st appellant’s likewise straddled the double white line. 

17. Similarly, he accepted the evidence that the 3^rd appellant’s vehicle which was 2 metres behind that of the 2^nd appellant likewise straddled the double white lines.  As to the 4^th appellant’s vehicle he was satisfied that vehicle as the officer had said was wholly in the opposite lane 1 metre behind that of the 3^rd vehicle.  He accepted that the approximation of the speed of the vehicles as they approached that check point had been in the vicinity of 80 kph.  Similarly, he accepted that the evidence of PW6 as to his observations made when the vehicles approached observation point No. 4.  He accepted the approximation of the speed of the vehicles when travelling in tandem to be in the vicinity of 90 kph.

18. Similarly, he accepted the evidence of the officer that by the time the vehicles had arrived at the road works the light had changed to red and that all four vehicles neither braked nor decelerated and passed through the red traffic signal at approximately 90 kph.  The magistrate found that the appellants’ driving of their respective vehicles as they approached and drove past observation points 3 and 4 fell far below that expected of a competent and careful driver.  He was satisfied that would have been obviously to a competent and careful driver that to drive in the way that these appellants had driven on this occasion was unquestionably dangerous. 

Reasons for Sentence

19. When sentencing the appellants, the magistrate noted that the 1^st appellant had five previous criminal convictions and the last of which was in the year 2006, also for dangerous driving.  On that occasion, he had been fined HK$6,000 and disqualified for six months.  The 2^nd and 3^rd appellants had clear criminal records and no previous similar traffic convictions.  The 4^th appellant had two previous dissimilar criminal convictions but no traffic conviction of any similar nature.

20. When sentencing the magistrate took a serious view of the dangerous driving offences.  Although committed, as he said, on a quite road in the early hours in the morning, the manner of the driving of all appellants was such that he was satisfied that, had there been traffic travelling in the opposite direction, a serious traffic accident would almost certainly have occurred.  Insofar as the sentences are concerned I will return to those at the conclusion of my judgment.

This appeal

21. Coming now to this appeal, there are three perfected grounds of appeal, two of which addressed specific aspects of the trial, one is the collective ground of appeal that the verdicts are unsafe and unsatisfactory.  Ground 2 is properly taken out of order.  That ground reads as follows :

“The learned magistrate erred in law in accepting the opinion evidence given by PW5 and PW6 of the approximate speed of the vehicles and distance between the vehicles e.g. ‘as approximately 90 kph.’ where neither witness gave reasons for the basis of their opinions and the only evidence of accurate speed of two of the vehicles had been recorder earlier by a laser gun as 33km/hr and 111/km/hr respectively.”

22. Of this ground of appeal, the first matter of any significance is that in the course of his final submissions in the trial Mr Necholas of counsel who appeared on behalf of all four appellants does not specifically address the fact that the police officers’ evidence was only their opinion.  The attack that was mounted upon the police officers, it would appear from the submissions and exchanges, was focused on whether or not in fact the officers had made any estimate of the speed of the vehicles or had simply relied upon what they had been told over the beat radios.  We do not have before us today the evidence of PW5 and PW6.  However, it is apparent from the material that the magistrate appreciated that they were giving an approximation of the speed of the vehicles.  He accepted their evidence to that effect.  Whilst the fact that Mr Necholas did not address this aspect in his submissions to the magistrate is not determinative of the ground of appeal it is relevant when considering what is now said to be the error on the part of the particular officers on that occasion.

23. The second matter of some moment is that the ground of appeal as cast is a bare assertion without reference to the evidence of the officers.  It is not apparent from the appeal bundle whether the officers did in fact give any basis for their opinion or indeed whether or not that opinion had in fact been challenged.  It is to be noted that the speed limit in the area where each officer made his observations was 50 kph.  A witness, be he a police officer or not, is entitled to make an estimate of the speed of a vehicle when asked to do so.  What weight attaches to it is for the trier of fact to determine.  In the instant case, the magistrate gave full weight to that opinion. 

24. In his written submissions in support of the 2^nd ground of appeal, Mr Percy said this :

“The learned Magistrate erred in relying solely on the opinion evidence of the police officers PW5–6 without considering whether they were in a position or had the expertise to give such an estimation of speed.”

Further on in his submissions he submits :

“It was never suggested to the Magistrate that these police constables were experts in the field of making estimates of vehicular speeds with the naked eye.  Their experience and length of service in the traffic department was never adduced.”

25. As to these matters, I observe as follows :  A magistrate is entitled as I said earlier to accept the opinion evidence of a police officer or a layman as to the speed of a motor vehicle.  The weight that attaches to it is a matter entirely dependent upon the evidence of the witness in the circumstances.  There is nothing in the material before me that suggests that any attempt was made to indicate that either of the police officers had been given specific training in the observations of motor vehicle and I am unaware of any requirement that a witness before they can give an estimate of the speed of a vehicle is in need of such training.

26. Mr Percy develops this argument further when he says :

“Although it is accepted that opinions of speed are admissible it is submitted that due to the danger of inaccuracy inherent in such evidence it should he verified.”

He cites in support of that submission paragraph 75 of the unreported judgment of Lunn J in HKSAR v. Ho Kwok On, HCMA979/2005.  I observe of that case that it is not at all relevant to the issues in the instant appeal.  In that case a magistrate had found as a fact, without supporting evidence, that a particular police officer was a “a skilled and experienced observer in his ability to sight and remember the particulars of the registration numbers of vehicles passing or approaching him at high speed”.  In the case of that particular officer there was as it transpired no such evidence before the court which was in contrast with another officer who had in fact being given specific training.  There is nothing in the judgment of Lunn J that would support the 2^nd ground of appeal of the appellants in this case. 

27. It is to be noted that in the course of his final submissions to the magistrate Mr Necholas had suggested that because the police officers did not have a laser gun or a video camera with them to measure the speed of the vehicles, the evidence of the police officers should be rejected.  In his oral reasons for verdict delivered on 19 December, the magistrate said this :

“Whilst PW5 and 6 at observation points 3 and 4 respectively did not have the benefit of that equipment.  I am sure that their testimony as to the speed of the vehicle and the distance between the vehicles whilst not exact can be relied upon as providing approximately the correct speed of the vehicles and the correct distance between them.”

28. In the circumstances, that conclusion by the magistrate in my opinion is unassailable.  There was no evidence front any other source including these appellants as to the speed of the vehicles on that occasion.  There is no merit in this ground of appeal and it is dismissed. 

29. The first ground of appeal reads as follows :

“Insofar as it relevant.  The learned magistrate fell into error when he convicted all four appellants of the alternative charges of dangerous driving, contrary to section 31 of the Road Traffic Ordinance, Cap. 374, when he failed in his oral or written statement of findings to demonstrate that he had in mind the specific provisions of section 37(7) before determining what would or would not be expected of or obvious to a competent and careful driver in this particular case.”

Section 37(7) reads as follows :

“(7) For the purposes of subsections (4) and (5), in determining what would be expected of, or obvious to, a competent and careful driver in a particular case, regard shall be had to all the circumstances of the case including—

(a)   the nature, condition and use of the road concerned at the material time;

(b)   the amount of traffic which is actually on the road concerned at the material time or which might reasonably be expected to be on the road concerned at the material time; and

(c)   the circumstances (including the physical condition of the accused) of which the accused could be expected to be aware and any circumstances (including the physical condition of the accused) shown to have been within the knowledge of the accused.

…”

Section 37(4) reads :

“(4) A person is to be regarded as driving dangerously within the meaning of subsection (1) if—

(a)   the way he drives falls far below what would be expected of a competent and careful driver; and

(b)   it would be obvious to a competent and careful driver that driving in that way would be dangerous.”

30. In the course of Mr Necholas’s submissions to the magistrate on what evidence could or could not support the charges of dangerous driving, there was an exchange between he and the magistrate wherein the magistrate in effect said that if the evidence of two police officers PW5 and PW6 was to be believed (i) each of the defendants were driving at a high speed (approximately 90 kph in 50 kph zone); (ii) straddling white lines (iii) in the case of the vehicle driven by the 4^th appellant being on occasions wholly on the wrong side of the double white lines; and (iv) on one occasion all four vehicles passing through a red light, again at high speed, at a road works.  It was not suggested by Mr Necholas that such course of driving could not be regarded as dangerous. 

31. In his oral reasons for verdict, the learned magistrate observed as follows :

“All along the material stretch of Route Twisk there was a speed limit of 50 kph.  In the vicinity of observation point 3, there were double continuous white lines dividing the lanes.  There were bends in the road near observation point 3.  I find the speed of all four vehicles reached approximately 90 kph as they approached observation point 3.  I find that the 1^st appellant’s vehicle straddled the double white lines in the middle of the road as did the second vehicle which was approximately 1 metre behind that.  The third vehicle that is the 3^rd appellant was about two metres behind the second vehicle also straddling the double white lines.”

32. He concluded that the fourth vehicle which was the 4^th appellant’s was wholly in the opposite lane 1 one metre behind the 3^rd vehicle.  As to the fourth observation point, he said this : “I accepted the evidence of PW6, I find that all four vehicles approached the observation point 4 at a speed of approximately 90 kph.”  A little later he said : “there were road works and traffic light signals, traffic lights had changed to red as four vehicles approached.  I find that none of the vehicles braked or decelerated.”

33. Having made those observation and having accepted the evidence of the police officers, the magistrate said this :

“As they approached and passed through points 3 and 4 the manner of driving of the appellants fell far below that expected of a competent and careful driver.  I am satisfied it would have been obvious that a competent careful driver driving drive in the way that the defendants did was dangerous.”

True it is that in those observations he made no specific reference to section 37(7).  I am satisfied in the instant case that there was no need to do that, the facts of the case speak for themselves.  

34. The exchange in the transcript of the closing speech of the appellants’ counsel and the magistrate makes it abundantly clear that the matters referred to in section 37(7)(a) through to (c) were in the forefront of the magistrate’s consideration.  This is abundantly clear from the oral reasons for verdict and the written statement of findings.  In her submissions to me Ms Cheung on behalf of the prosecution refers me to two passages which are indicative of the fact the magistrate was alerted to the provisions in section 37(7).  The first appears in the written statement of findings at page 57 where the magistrate said this : “photographs depicting the operation posts and their locations and the conditions of the road were produced by consent.”  Later when sentencing the respective appellants, the magistrate said this at page 69 :

“I took a serious view to the dangerous driving offences, although committed on a quiet road in the early hours of the morning, the manner of driving of all appellants was such that had there been traffic travelling in the opposite direction, a serious traffic accident would almost certainly have occurred.  Bearing in mind the bending nature of the stretch of road near the observation point 3, it is a borderline case as to whether a custodial sentence was appropriate.”

35. It is apparent from a reading of the exchanges between the magistrate and counsel, the oral reasons for verdict and the written reasons for verdict and sentence that the magistrate was wholly alert to the requirement to consider the matters which are referred to in section 37(7)(a) to (c).  In those circumstances the fact they do not appear specifically in his reasons for verdict causes me no concern whatsoever.  This ground of appeal must also fail.  The appeals against conviction are dismissed. 

36. Insofar as the appeals against sentence are concerned, two significant issues are required to be dealt with.  The 1^stappellant was sentenced to a disqualification period of 18 months by the magistrate and fined $9,000.  A sentence as I have said different from the other three appellants.  The reason for that being that the 1^st appellant had a recent conviction for dangerous driving and had been disqualified on that occasion for six months.  Since the date that the 1^st appellant was sentenced that conviction has been quashed and in those circumstances the premise upon which a different period of disqualification was imposed by the magistrate has fallen away.

37. Ms Cheung on behalf of the prosecution conceded that in those circumstances the 1^st appellant’s appeal against conviction should be allowed to the extent that the period of disqualification imposed and the fine imposed should equate with that of each of the other three appellants and I agreed with that. 

38. The second matter is what is the appropriate period of disqualification in all the circumstances for each of the respective appellants.  Mr Percy on their behalf submitted it would have been more appropriate to impose the minimum period of disqualification namely, a six months’ period of disqualification.

39. The magistrate in the instant case took a very serious view of the driving of the appellant.  What is abundantly clear is that this is not an isolated instance inasmuch as the observations made by the police officers demonstrated clearly two specific occasions where their driving was unquestionably dangerous.  The first when all four vehicles travelling at high speed negotiated the hair pin bend at observation point 3 where each of the vehicles was in part on the opposite side of the road travelling within a metre or two of each other and at the speed of approximately 80 to 90 kph.  There is no question, in my mind, that incident standing alone properly justified the conviction for dangerous driving and properly justified at the very least the imposition of the minimum period of disqualification.  And the incident did not stop there, because shortly after this each of the respective appellants approached observation point 4 at high speed and ran through a red light.  That conduct standing alone, in my opinion, likewise constituted a very serious dangerous driving.  In the circumstances, to impose a disqualification period of nine months as opposed to six months was in my opinion entirely appropriate as was the fine imposed on each of the respective appellants. 

40. The appeals against sentence by the 2^nd, 3^rd and 4^th appellants are therefore dismissed.  As to the 1^st appellant, the appeal against sentence is allowed to the extent that the period of disqualification of 18 months would not stand and in its place a disqualification of nine months is to be substituted and that the fine of $9,000 is to be reduced to a fine of $6,000.  For avoidance of doubt therefore each of the appellant would be disqualified from driving for nine months and fined $6,000.