HKSAR v. Swan Richard

HCMA 296/2020

[2021] HKCFI 2736

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 296 OF 2020

(ON APPEAL FROM ESCC 1362 OF 2020)

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Before: Hon Toh J in Court

Date of Hearing: 11 August 2021

Date of Judgment: 11 August 2021

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J U D G M E N T

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1.The Appellant was charged with two offences, one is using a motor vehicle without third party insurance, contrary to sections 4(1) and 4(2)(a) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272, and the second is riding or driving on footpath without obvious necessity, contrary to section 4(8) of the Summary Offences Ordinance, Cap 228.

2.The allegation of the police was that he was riding a unicycle on Lamma Island, and was travelling for about 30 metres at a speed of about 5 km/h. He was stopped and the unicycle was confirmed to be electrically propelled.  The Appellant had stated in his Perfected Grounds of Appeal[1] that some weeks prior to this offence he had been stopped and verbally cautioned that riding his unicycle in a public place was against the law and given a leaflet.  Yet this did not deter him from doing the same in this offence.   

3.The Appellant, under cautioned, admitted that he had not registered with the Transport Department nor did he had any valid driving licence in Hong Kong. 

4.Upon examination, the unicycle was found to be equipped with an electric motor, which mechanically propels the vehicle, and therefore it was by definition a motor vehicle. 

5.The facts, briefly was what I had just said. However, 6 months before it came to trial, the Appellant was asked to provide the original charger for the unicycle in order to confirm its maximum speed.  He refused to do so.  Therefore, the government expert asserted that he was not able to perform a proper, or best, road test.

6.Therefore, on that reason alone, the prosecution offered no evidence against the Appellant.  The Appellant applied for costs and the learned Magistrate refused his application.  So this is his appeal against the order refusing his costs.     

7.I have read the assertions made by the prosecution.  There is no reason for me to disturb the learned Magistrate’s discretionary order of not ordering costs.  She had good reasons for not doing so and I would add one reason was that the Appellant had brought suspicion on himself, as he had been warned before the present offence[2].

8.The appeal is therefore dismissed.

9.The Appellant was absent for the hearing of the appeal.

Mr Douglas Lau, SPP(Ag.) of the Department of Justice, for the Respondent

The Appellant was unrepresented and was absent