HKSAR v. Cebolla Ltd

HCMA 79/2019

[2019] HKCFI 2823

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 79 OF 2019

(ON APPEAL FROM ESS NO 36013 OF 2018)

________________________

BETWEEN

________________________

________________________

J U D G M E N T

________________________

Introduction

1.The appellant company, Cebolla Ltd, appeared before Mr Peter CC Yu for trial on 9 January 2019, for failing to provide information on demand contrary to section 63(1)(a) and (6)(a) of the Road Traffic Ordinance, Cap 374 (“the RTO”).  It was found guilty and fined $3,500.  By its notice of appeal, dated 22 January 2019, the appellant company appeals that conviction.

The Prosecution Case

2.The appellant company is the registered owner of a seven-seater motor vehicle bearing registration number EM8819.  The entire prosecution case was admitted under section 65C of the Criminal Procedure Ordinance, Cap 221 [Exh P1], and relevantly, inter alia, that EM8819 had crossed over a solid white line on Harcourt Road into the path of another vehicle at approximately 1830 hours on 9 May 2018.  The details of why that occurred and the consequences thereof are not relevant to these proceedings save that a report of the incident indicating careless driving was made to the police, which triggered the issuing of a Pol 571, which is a Notice Requiring Identification of Driver [Exh P2].

3.P2 was dated 10 May 2018.  The registered owner of EM8819 had 21 days to provide the name, address and driving licence number of the driver at the material time.  P2 was stamped by the appellant company and had a signature of one of its directors Mr Tony Hioe Tsun-chao (“Mr Hioe”), dated 16 May 2018.  Mr Hioe represented the appellant company at trial.  The evidence before the learned magistrate indicates that Mr Hioe completed and returned the form along with an undated one-page statement.  It is accepted that neither P2 nor the attached statement provided the required details.

The Defence Case

4.In its reply within P2, the appellant company, through Mr Hioe, claimed that it was unable to ascertain who was driving the vehicle at the material time.  In evidence, Mr Hioe maintained that the company owned three vehicles, two of which were Porsches driven by himself and his son.  The last vehicle was EM8819, which was a seven-seater and was driven by himself, his son and a Filipino driver referred to as “Dave”.  Mr Hioe said that he had made enquiries of his son and his driver but neither could remember the incident as there had been no accident to trigger them to notice that anything was amiss.  That was the extent of his investigation as the only other steps he took were to ascertain that the car park CCTV was broken and that there was no entry/exit log.  The appellant company was therefore relying upon a defence under section 63(5) of the RTO which states:

“…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 or accident or of the last driver of the vehicle prior to the accident, as the case may be.”

The Grounds of Appeal

5.By its Perfected Grounds of Appeal, dated 13 March 2019, the appellant company submits that the learned magistrate erred in law:

(a)  in failing to consider what a ‘reasonable person’ would expect the appellant to do and “whether the situation is that even if these things have been done, it may still be futile[1]”; and

(b)  in finding that the appellant had failed to demonstrate that it had exercised reasonable diligence in ascertaining the particulars of the driver of EM8819.

6.In essence, the appellant submits that not only did Mr Hioe on behalf of the appellant company not know who the driver was but that he could not with reasonable diligence have ascertained the identity of the driver.  He also advanced an additional argument upon breach of natural justice.

7.There was a further and separate appeal against the refusal of an award of costs arising out of the amendment of the Summons on 18 December 2018.  This was not pursued.

Law and Procedure

8.A magistracy appeal is by way of re-hearing: Chou Shih Bin v HKSAR [2005] 1 HKLRD 838.  Whilst it has become a common approach to criticise the learned magistrate in the same manner as one would seek to criticise the judge below on an appeal to the Court of Appeal, the appellant in a magistracy appeal must remember this is a re-hearing.  It is for this Court to satisfy itself on the papers that the prosecution case is made out to the requisite standard and, if so, that the appellant has satisfied the Court upon a balance of probabilities that the appellant company 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 or accident or of the last driver of the vehicle prior to the accident.

Discussion

9.The facts of the prosecution case were admitted.  The present appeal is concerned only with the application of the principles of “reasonable diligence”.  The principles to be applied were laid out by Ma CJHC (as he then was) in HKSAR v Kong Hing Agency Ltd[2], where it was stated, inter alia, that the question to be asked was:

‘In the circumstances of that case, what would a reasonable person expect the accused to do?’

and Stock J (as he then was) in R v Mulitex (Exports) Ltd[3]that:

“…it is not the doing of everything possible, but the doing of that which, under ordinary circumstances, and having regard to expense and difficulty, can reasonably be required.”

which Wong J[4] extrapolated as:

“…what a reasonable person would expect the appellant to do and whether the situation is that even if these things have been done, it may still be futile.”

In other words, all the circumstances surrounding both the action and inaction of a defendant will be taken into account.

10.The appellant company relies upon the reasoning of Wong J in Yeung Kai Keung.  It submits that a) Mr Hioe used reasonable diligence and b) even if that were found not to be the case, then he could not have discovered the identity of the driver if he had used reasonable diligence and additionally, c) if the Court were to identify an avenue of approach which it considered that the appellant company should have used, it was incumbent upon the Court to give the appellant company an opportunity to address the concerns of the Court.  With respect, I disagree with all three submissions.

11.On the issue of whether the appellant company used reasonable diligence; the vehicle in question was impliedly used predominantly by the company driver, “Dave”.  Mr Hioe and his son owned and drove personal vehicles, which were expensive sports cars.  The burden of proof on a balance of probabilities was on the appellant company to prove that it could not with reasonable diligence ascertain the identity of the driver of the seven-seater on that day.  Some evidence was therefore required to show that it had, in the first instance, exercised reasonable diligence and that such an exercise had not been successful.  That exercise amounted in effect to “I asked and they couldn’t remember” and “I checked the CCTV but it was broken”, and “we have no entry and exit record for the car park”.  No evidence was sought to be adduced as to what the vehicle was used for by the company.  No evidence was adduced as to how often either Mr Hioe or his son drove the vehicle or why they should do so.  No evidence was adduced as to why there was a need to employ a driver for the vehicle and how often he drove it as opposed to Mr Hioe or his son.  There was no evidence before the Court other than the fact that the potential drivers were asked if they could remember whether they had driven the vehicle just a few days previously and that they had replied in the negative.  That is not all that an objective bystander would expect a person making such enquiries could reasonably do.  If the vehicle was on company business, then it must be possible to ascertain what it was used for on that day.  If it was a company vehicle, the Court is entitled to presume it was not used for private purposes.  I would be surprised to find that people who usually drive Porsches do not remember when they are driving a seven-seater vehicle and why, especially as the time lapse was so short.  The appellant company cannot rely upon a broken car park camera and the lack of an entry/exit log as making efforts to ascertain the driver, not least because it is incumbent upon the company to maintain proper systems.  It would be an interesting argument to suggest that because a company/defendant was wholly lax in its record keeping, it could avail itself of the section 63(5) defence. The burden is after all upon the defence.

12.The same reasoning applies to the alternative argument relied upon by the appellant company that even if it had made sufficient effort to satisfy the test under section 63(5), it could not have ascertained the identity of the driver.  If, and I am not certain that it is, the ‘futility test’ referred to by Wong J[5] is an alternative and correct test to apply, the appellant company would need to adduce evidence to show such futility.  What is the requisite level of futility to meet that test?  Is it more likely than not that the appellant company through an exercise of reasonable diligence, would be unable to discover the identity of the driver?  Is it impossibility?  This is just part and parcel of the ‘reasonable diligence test’ wrapped up as if it is two tests rather than one.  The authorities relied upon by Mr Oh, are simply stating that what is required is to consider what an ordinary person would be expected to do in seeking to ascertain the identity of the driver of a vehicle he owned.  In so doing, the Court will look at all of the particular circumstances of the case at hand including a non-exhaustive list of factors such as the relationship of driver to vehicle, the degree of difficulty in ascertaining the identity of the driver, the complexity of any enquiry, the number of possible authorised drivers, the possibility of use by an unauthorised driver, the expense and time needed to do so and the likelihood that any given exercise would result in discovering that information etc.

13.Considering all of the facts of this case, there were just three possible drivers.  The most likely driver was the company driver, unless there was a reason to exclude him from the equation, given that he was employed to drive EM8819 and that Mr Hioe and his son had their own vehicles.  The appellant company was notified within 48 hours of the triggering event.  The overwhelming inference to be drawn from that is that it should have been within the recent memory of Mr Hioe and his son whether they had driven a seven-seater vehicle within the last two days rather than their own Porsches.  It should equally have been within the recent memory of the company driver whether he had carried out his duty as a driver and where he had been required to go.  Even if that were not the case, there should have been some record within the company of the use of EM8819 for company business.  Nothing more complex than that was necessary and it was not necessary to go further than a simple reference to company records.

14.As to the suggestion that there had been a breach of natural justice by the learned magistrate when he did not raise his concerns in respect of the steps he considered could have been taken by the appellant company in ascertaining the identity of the driver, this point was not raised within the grounds of appeal.  It was raised within the submissions in support of appeal at para 16(d), not as a distinct ground but rather as a part of a general complaint that there was no evidence to support the learned magistrate’s findings upon what steps should or could have been taken.  With respect to Mr Oh, this argument rather misses the point.  Actually it misses two fundamental points.  Firstly, the onus is squarely upon the appellant company to show upon admissible evidence and upon a balance of probabilities that it could not, by reasonable diligence, ascertain the identity of the driver and not upon the magistrate to show how they could. Secondly, and more importantly, this is a re-hearing and not a criticism of the Court below.  If the appellant company felt this was a valid avenue of approach, then it can make an application for leave to adduce fresh evidence on appeal in accordance with the usual principles.  Mr Oh accepted that he would have been unable to satisfy that test and therefore no such leave can be granted.  This in no way prejudices the appellant company upon appeal as this Court, as rehearsed above, sees no need to go as far as the learned magistrate did in his explanation for his findings.  It is plain, on the evidence before the Court, that the appellant company did not use reasonable diligence, far from it.

Conclusion

15.The magistrate correctly applied the relevant legal principles.  The example he gave for other steps which could have reasonably been taken was just that, an example.  This is a re-hearing and I have considered all of the evidence and the submissions of counsel.  I find that Mr Hioe, on behalf of the appellant company, took only minimal steps to enquire as to the driver of the company vehicle.  He could and should have done more.  He was in the best position to know what could be done to ascertain the required identity.  The appellant company cannot rely upon its own lax procedures to avail themselves of the statutory defence.  Had Mr Hioe exercised reasonable diligence in the circumstances of this case, I find that he was in a position to ascertain the identity of the driver.  Accordingly, this appeal is dismissed.

16.There was a further application to seek leave to adduce the evidence of PC 3356.  The evidence of PC 3356 is not relevant to this Court’s determination on this re-hearing and accordingly leave is not granted for it to be adduced.[6]

17.There will be no order as to costs for the hearing of 18 December 2018.

18.Leave to amend the Grounds of Appeal is refused.

19.The costs of this appeal will be to the respondent.

Mr Derek Lau SPP, of the Department of Justice, for the respondent

Mr Nicholas Oh, instructed by Lee & Chow, for the appellant