Tsang Ho Ming v. HKSAR and Other

HCAL 2285/2023

[2024] HKCFI 46

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 2285 OF 2023

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BETWEEN

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D E C I S I O N

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A. Introduction

1.By his Form 86 dated 18 December 2023, the Applicant seeks leave to apply for judicial review, targeting the ‘jaywalking’ offence created by section 48 of the Road Traffic Ordinance Cap 374 (“RTO”).  In his description of the ‘decision or other proceeding in respect of which relief is sought’, the Applicant has stated (sic):

Undue burden – jaywalking laws – inadequate city pedestrian infrastructure and sanitation

Undue burden – systematic gov agencies failure

2.The Applicant seeks the following three forms of relief (sic, emphasis in original):

1.  A declaration that jaywalking offences in road traffic ordinance be unconstitutional

2.  A declaration that incompetence of legislative Council to enact modern up to date pedestrian friendly laws is unconstitutional

3.  A declaration that systematic incompetence of government agencies to maintain satisfactory pedestrian facilities and indiscriminately issued jaywalking tickets is unconstitutional

3.The Form 86 specifically asks for the application to be dealt with ex parte, on the basis that the Applicant says he has no money because he has to use the money to pay for his jaywalking ticket (and also because he says humble citizens are afraid of retaliation by the Department of Justice to bear costs).

4.Having considered the Form 86 and its enclosures, I will deal with this application on an ex parte basis, on the papers.

5.This is my Decision.

B.  Background

6.The Background identified by the Applicant on his Form 86 is as follows (sic, emphasis in original):

BACKGROUND: everyday millions of Hong Kong residents crossed the street outside of an intersection when no cars are present, when the sanitation condition does not allow citizens to walk on poorly designed sidewalks, and old people suffered from green light quick turning red. Jaywalking laws in road traffic ordinance is unevenly enforced in lower income residential neighborhood.  Besides over policing, the prevalence of jaywalking in certain districts reflects inequities in street design and urban decay the government is too weak to tackle.  2000 dollars, 190 usd, 200 pounds may not seem much for a high ranked official, but it is an undue burden for low income residents and retirees with no income.

People who need to walk in their neighborhood should not be penalized for incompetence of gov agency in proper sidewalk planning.

Existing law provides that between intersection or across a street controlled by traffic signal devices or by police officers, pedestrians shall not cross the road at any place except in a pedestrian crossing or zebra crossing.

Existing law prohibits pedestrian from crossing the street or intersection if they are within 15 meters of a crosswalk or footbridge or tunnel available for them.

Transport department’s code prohibit pedestrian from crossing crosswalk if the green pedestrian light start flashing.  (not sure if road traffic ordinance expressly banned this behavior or not)

The fees associated with jaywalking tickets place an undue burden on the people least able to afford them.

7.The Applicant enlarges on these matters in the context of his arguments on his proposed Grounds of review.

C.  Proposed Grounds

8.Without repeating the totality of the argument set out in the Form 86, I can summarise the proposed Grounds of review as follows:

(1)  Ground 1: Systematic failure of government agencies, poor urban planning in the past does not allow enforcement of jaywalking laws, because of:

(a)   incompetence of the Transport Department, because of design flaws in pedestrian traffic lights and crosswalks;

(b)  incompetence of the Planning Department, because of narrow paths which hinder a straight pedestrian flow, intensified by dripping air conditioning water;

(c)   incompetence of the Food and Environmental Hygiene Department, in failing to meet, or in deceptively managing, their ‘performance pledge’;

(d)  incompetence of the Highways Department in maintaining pedestrian sidewalks.

(2)  Ground 2: Enforcing jaywalking laws and issuing a $2,000 ticket violates Article 28 of the Basic Law (“BL28”), because there should be no excessive bail or fines imposed, nor cruel and unusual punishments inflicted.

(3)  Ground 3: The Legislative Council should make laws prohibiting a peace officer from stopping a pedestrian for specific traffic infractions unless a reasonably careful person would realise there is immediate danger of collision with a moving vehicle or other device moving exclusively by power.

(4)  Ground 4: Enforcing the current stringent jaywalking laws is meaningless, as it is disproportionately enforced in lower income areas, or areas showing signs of significant urban decay, to the disadvantage of residents living there.

9.The Applicant also seeks to rebut what he describes as the “common excuses” put forward for the jaywalking laws, and enforcement of them.  For example, he suggests that there are bound to be greater pedestrian fatalities than caused to drivers, but that is because drivers are “protected by steel”, so that a mere higher number of pedestrians killed is insufficient to give a conclusion.

D.  No Merits in Proposed Grounds

10.None of the proposed Grounds of review have any merit.  Indeed, no true public law challenge is raised on the Form 86.

11.In so far as the Form 86 suggests making a constitutional challenge to the jaywalking law, no basis is identified other than the (mere) reference to BL28.  That article provides as follows:

The freedom of the person of Hong Kong residents shall be inviolable.

No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment.  Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited.  Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.

12.Plainly, there is no reasonably arguable connection between BL28 and the matters of which the Applicant seeks to make complaint in these proceedings.  In any event, the creation of the jaywalking law, and setting the level of the fine to be imposed for its breach, are matters firmly within the realm of the legislature, to which (as the Applicant himself recognises) the Court will give due deference, albeit without abdicating the Court’s powers.

13.Indeed, in any event, it seems to me obviously not irrational for such a law to exist, and for the penalty to be one which strongly discourages pedestrians from putting themselves in a position of obvious potential danger to themselves and others.  Further, to suggest (as the Applicant does) that jaywalkers should be stopped only when a reasonably careful person nearby perceives an immediate danger of collision between the pedestrian and a moving vehicle seems to me to create an obvious risk of taking action too sporadically and/or too late.

14.The remainder of the Form 86 specifically seeks to identify and make complaints about the alleged incompetence or failures in performance of various government agencies or departments.  Absent properly identified public law grounds of challenge, the Court of judicial review exercising its supervisory jurisdiction does not exist to deal with such form of complaints.

E.  Result

15.On occasions, there may be room for citizens to express concerns or complaints about pedestrian traffic light design or timings, and the state of maintenance of pavements and footpaths.  But such concerns do not fall to be aired in, and such complaints do not fall to be dealt with by, the Court exercising its supervisory jurisdiction in judicial review.

16.The Applicant has failed to identify any reasonably arguable public law grounds of judicial review with any reasonable prospect of success.  In the circumstances, the application for leave to apply for judicial review is dismissed.

17.I make no order as to costs.

The applicant, acting in person