R. v. Tsang Wai Keung

HCMA000727/1996

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 727 OF 1996

--------------

--------------

Coram : Hon Stock, J. in Court

Date of hearing : 8 August 1996

Date of judgment : 8 August 1996

------------------------

J U D G M E N T

------------------------

1. This is an appeal against conviction and sentence. The allegation was that the appellant on 15th January 1995 at 7:25 a.m., was the registered owner of a vehicle which was parked in Boundary Street, Kowloon, in a manner likely to cause unnecessary obstruction of a road or danger to other persons using the road. This is a fixed penalty contravention. The appellant chose to contest the matter, so a summons was issued and there was a hearing before the magistrate on 14th May 1996. The magistrate found the offence proved. He imposed a penalty in the sum of $320 being the fixed penalty amount of $320, an additional penalty of $320, and then condemned the appellant in costs to the tune of $500.

2. Evidence was given by a police officer and by the appellant. The officer testified that there was a line of vehicles parked in unauthorised spaces on the westbound carriageway of Boundary Street, by reason of which large vehicles such as buses and lorries were obliged, in passing the parked vehicles, to straddle the double lines dividing the two flows of traffic of the two carriageways. The appellant's vehicle was, according to the evidence, one of them. The officer issued a ticket. The appellant said in his testimony that his vehicle was in the eastbound carriageway. He denied that other vehicles were caused to cross into the opposite carriageway by reason of the fact that his vehicle and others were parked where they were. He produced sketches and photographs in an attempt to prove his point. The magistrate accepted the evidence of the officer, and the conviction followed.

3. Mr Tsang has today appeared in person and conducted his appeal with considerable clarity. He complains in the first instance that there were procedural irregularities; for example, he says that he was denied the opportunity of examining the police officer's note book and further that he was hampered in his efforts to cross-examine by an insistence on the magistrate's part that he disclose beforehand the reasons for the question. I could not possibly come to a conclusion in relation to points of this kind without first giving the magistrate an opportunity of saying whether or not he accepts the contention, and of putting the matters in such context as they, from his point of view, occurred, if indeed they did occur. For reasons that will become apparent, it is not necessary for me to go into this issue.

4. Central to this case is the question whether the appellant's vehicle was causing moving traffic to cross the central divide. That was the plank of the prosecution case. It was said that there was enough space for a private car to go by, but not for a bus or lorry. There is before me no sketch or photograph produced by the prosecution showing where it is said the appellant's vehicle was parked. It is evident that at some point in the relevant area, the westbound carriageway is or becomes a two-lane carriageway. It also appears from the photographs produced by the appellant at the trial that there are markings dividing the two lanes. I permitted the appellant today to produce a photograph of the carriageway near the set of traffic lights which are ahead of the place where the appellant's vehicle must have been parked.

5. The magistrate did not of course have the advantage of that photograph, but it is a photograph which shows very clearly that the carriageway for some distance before the lights is a two-way carriageway, and clearly marked as such, and that in that stretch of the road large vehicles, as well as small, could pass within the bounds of the westbound carriageway even if there were cars parked on the left side of the road. However, it is probably the case that the prosecution assertion was that the appellant's vehicle was parked further back from the lights, where the carriageway has narrowed into one lane. That no doubt is the significance of the dispute apparent from the papers as to where the appellant's vehicle was parked.

6. But the problem today, as far as the prosecution is concerned, is that the prosecution are not in the position to tell me, where it is said, by the prosecution, that the appellant's vehicle was in fact parked. Nor can I make an assumption in the Crown's favour in this regard, particularly because the evidence of the police officer as appears in the record of proceedings, in cross-examination, is that the road "was wide enough for two lanes of private cars", even though I note that there was another reference in his evidence to there been only one lane of traffic in that carriageway. Well, the evidence that the road was wide enough for two lanes of private cars, does not appear to me to be supported in relation to the stretch of road where the carriageway has only one lane. As to the stretch of road where there are two lanes, it appears to me that there would be room for vehicles, large or small, to pass within the west side of the carriageway even if vehicles were parked in the left lane.

7. The Crown is not in a position today to resolve this apparent conflict, and since it goes to the heart of the prosecution case, the Crown does not seek to oppose the appeal. I have some misgivings about the merits of Mr Tsang's case, but such doubts must be resolved in his favour. In the circumstances, the appeal is allowed, the conviction is quashed and the fines and the court's order are set aside.

Representation:

Mr D. Leung, C.C., for Crown

Appellant, Mr Tsang Wai Keung, in person