Van Hing Transportation Co Ltd v. Attorney General

CACV000009/1980

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

CIVIL APPEAL No. 9 OF 1980

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Coram: Silke, J. in Court

Date of Judgment: 1 April 1980

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JUDGMENT

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1. This is an appeal against an order made by a Magistrate upon the complaint of the Attorney General under the Fixed Penalty (Traffic Contravention) Ordinance.

2. Before going into the matter I would refer to the order of the learned Magistrate which, at the end of his judgment reads: "It follows from this that the defendants must be convicted and a fine of $30 is imposed."

3. With respect to him, this is wrong in that these are civil proceedings and the penalty is recoverable and, in the words of Huggins J. (as he then was) in Lee Pick Chun v. The Attorney General⁽¹⁾ (unreported), "recoverable only 'as a civil debt'." However nothing turns on this as, when Mr. Strawbridge, who appeared for the Attorney General, drew the order to my attention. Mr. Wong, who appeared for the appellant, had no objection to the order being rectified and took no point upon it.

4. As the Magistrate said in his reserved judgment "It was clear from the evidence from both the Crown and the defence that there is at this location a long standing issue between the owner of No 981 Kings Road and the local police as to reasonable user of the road."

5. That this is manifest is indicated by the series of photographs, produced in the court below, and which have been referred to in the course of this hearing, showing the lorry in question and the fixed penalty ticket being prepared by the constable. No one, as I understand it, spoke to the constable though his conduct was clearly observed with much interest.

6. No 981 Kings Road is the large building known as Hacking Building situated between Pan Hoi Street and Tong Chong Street with, on the opposite side of the road, a hillside.

7. Lorries load the goods from the building on the road side - and some apparently go through an entrance in the face of the building to do so.

8. On the 3rd March 1979 a lorry parked in Kings Road preparatory to the loading up of goods.

9. At 9.33 a.m., according to the Fixed Penalty Ticket, it was 'booked' for a contravention of Section 4 of the Ordinance. There was a dispute as to whether the lorry driver was in attendance upon the lorry at the time. The constable in his evidence said, when asked about the driver, "no one was sitting there" and he saw no loading or unloading. The driver in his evidence said he "stayed by side of" the lorry. In the light of the photograph D52, which shows the driver walking towards the lorry, the fact that no one spoke to the constable and the evidence of the constable himself I think the use of the phrase "stayed by the side" to be a gloss upon the evidence.

10. In any event it is clear from the evidence that the lorry had to be moved - after 9.33 a.m. - to effect loading. It is the constable's evidence that he arrived at the scene about 9.25 a.m. and saw the lorry parked in the first lane for vehicle travelling East, that other vehicles approaching from the rear had to slow, stop and change out to 2nd lane and that he, seeing this, directed the traffic for about five minutes. It was only after that that he started to issue the fixed penalty and that while he was so doing he says the traffic remained congested with vehicles having to stop behind the lorry.

11. I think he also put a gloss upon his evidence, he was most relevant to identify himself in the photographs which are very clear and which, incidentally, were eventually agreed. There are traffic lights some little distance ahead of the lorry and it is obvious that, from time to time, traffic would build up at them.

12. Immediately in front of the lorry is some form of hawkers market taking up part of the pavement with wicker baskets appearing in the road itself.

13. The section delineating the offence reads:

"No person shall cause or permit any motor vehicle to stand on a road in such a position or in such condition or in such circumstances as to be likely to cause any unnecessary obstruction of such road or danger to other persons using the road."

14. I have been referred to Nagy v. Weston⁽²⁾ where Lord Parker C.J. set out the classic test in matters of necessary obstruction. But it is pertinent to note that the English provision which lay for consideration contains the words "wilfully obstruct".

15. It is beyond doubt that any occupation of a part of a road which interferes with people having the use of the whole of the road is obstruction. That of itself is not an offence for what we have to consider here is: was the presence of the vehicle likely to cause an unnecessary obstruction.

16. I would interpolate here that to park a lorry outside a building, depending on the traffic at the time for the purpose of immediately loading or unloading would seem to be a "necessary" obstruction and thus not fall within section 4. But every case very much depends on its own facts.

17. Mr. Wong, for the appellant, laid emphasis on the elements set out by Lord Parker as to unnecessary obstruction: the length of time the obstruction continues, the place where it occurs, the purpose for which it is done, and whether it does in fact cause an actual obstruction as opposed to a potential obstruction. This last element is tempered in Hong Kong by the use of the phrase "likely to cause" in our legislation.

18. The element as to time was in dispute - the constable's evidence being 9.25 to 9.33 a.m. and continuing: the driver's evidence being that it was 9.30 a.m. when he arrived giving 9.30 to 9.33 a.m. and continuing. But the continuation, according to him, was to effect the loading. Another witness supported the 9.30 a.m. arrival and said the lorry was there until 9.45 a.m.: in total fifteen minutes including loading.

19. The learned Magistrate was in error when he said in his judgment "the lorry was altogether outside No 981 Kings Road for about 45 minutes". He corrected this later to the fifteen minutes wait - there had been some slight confusion in the interpretation. As the learned Magistrate had, in effect, ignored the time after 9.33 a.m. and as he said when he corrected his error "I am not of the view that this makes any difference to the determination of the case" I do not think this factual error to affect the issues.

20. As I have said I think the constable to have placed a gloss upon his evidence as to the state of the traffic while he was on the scene though this road is a main traffic astery. I think the obstruction to have been more potential than actual and the learned Magistrate to have gone a little far when he said he was, upon reading the whole notes of evidence, "forced to the view that P.W. 1 is not contradicted as to the prevailing road and traffic conditions ........" Be that as it may the constable was faced with an ostensibly unattended lorry, with its side-flaps down, standing by the side of a main road and for more than a momentary halt.

21. Even if that halt were but for three minutes - and I think on the evidence that it was a little longer than that - the learned Magistrate was right when he said "In my opinion the travelling public has a right to expect that its passage will not be interfered with any more than is reasonably necessary for the efficient dispatch of ordinary daily commerce. This includes vehicles loading and unloading. I agree with Mr. wong that loading and unloading is per se reasonable, but I am perfectly satisfied that, for whatever reason, this particular lorry was parked in that position for longer than was necessary for the efficient conduct of business on this occasion."

22. That finding is supported by the fact that the lorry was not loaded while in its 9.33 position but had to be moved in order to effect this.

23. I accept that the facts of this case make it a fairly "fine line" case and that the constable was not the best of witnesses but the learned Magistrate applied the correct tests and was entitled to come to the conclusions which he did.

24. The appeal is therefore dismissed but I do amend the order of the learned Magistrate to a finding that the claim has been proved in the sum of $30.

Representation:

Mr. R. Wong (Ronald Wong & Co) for appellant

Mr. Strawbridge for Crown

(1) Civil Appeal 31 of 1972

(2) [1965] 1 All ER 78