HKSAR v. Tsang, Kowk Wing
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HCMA 248/2025 [2026] HKCFI 5358 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 248 OF 2025 (ON APPEAL FROM FLCC 1670/2024) ________________________
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_____________________ J U D G M E N T _____________________ 1.The appellant was convicted after trial of one count of using a defective vehicle on a road, contrary to regulations 5(4) and 121(1) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations, Cap. 374A (“the Regulations”) (Amended Charge 2). He was fined $2,500. 2.The appellant now appeals against conviction. Background 3.In the trial below, the prosecution only called Mr. Ng, the expert witness, who examined the vehicle in question (“the Truck”) 3 days after the accident. The defence did not call any witness. The magistrate accepted the evidence of Mr. Ng. In this appeal, the appellant did not challenge the finding of facts by the magistrate. The appellant only challenged the magistrate’s interpretation of the relevant provisions of the Regulations. The trial below was conducted in Punti. As the ground of appeal relates to interpretation of the legal provisions, the appellant applied for the appeal hearing to be conducted in English. I granted the said application and thus the judgment of this appeal is in English. The charge 4.The particulars of the Amended Charge 2 in Chinese and English are as follows.
5.The prosecution’s allegation as to the defect was stated in paragraph 19 of the Reasons for Verdict:
Expert evidence of Mr. Ng 6.In respect of the examination of the Truck, Mr. Ng recorded his findings in the M.V.E. Accident Report (Exhibit P4), supported by inspection photographs (Exhibit P4B). 7.Upon inspection, Mr. Ng found that at the offside rear wheel, the brake pad, the brake drum and the inside of the brake drum where it housed 2 bearings were covered in grease stains (hereinafter referred as “grease stains”) as shown in Exhibit P4B photographs (11) - (15). He opined that such condition required considerable length of time to develop because the thicker bearing lubricant would have been mixed with the more fluid gearbox oil, producing a more fluid mixture that seeped out. He was of the view that the grease stains existed for some time before the accident and were not caused by the accident[1]. 8.Mr. Ng tested the braking efficiency of the Truck. He found the total service brake efficiency was 52.3% (meeting the statutory 50% requirement) and total parking brake efficiency was 18.6% (meeting the statutory 16% requirement). However, he found service brake force of the offside rear axle was 623 kg, far lower than the nearside rear axle at 1,295 kg, whereas the front axle forces were closer (944 kg and 910 kg). Mr. Ng opined that the grease stains at the offside rear wheel materially reduced the service brake efficiency of the offside rear axle, creating a very large difference in braking efficiency between the nearside and the offside rear wheels, which could affect braking performance. Although the total braking efficiency still met the statutory requirement, Mr. Ng opined that the braking efficiency of the offside rear axle was seriously low[2]. 9.Although Mr. Ng did not conduct laboratory tests on the leaked oil, he did touch and smell it. Further, he stated that if the oil seal was intact, even after removing the wheel, one would not see oil leakage as shown in Exhibit P4B photograph (13). Despite the lack of inspection of the oil seal, Mr. Ng opined that there certainly be damage in the oil seal that caused oil flowing into the middle position as shown in Exhibit P4B photograph (13)[3]. 10.While acknowledging that the legislation did not expressly require the braking efficiency of the wheels on both sides not to differ significantly, Mr. Ng stated that vehicle inspection guidelines stipulated that the difference between the two sides could not exceed 25%. If there was a severe discrepancy between the two sides, the rear of the vehicle might “sway”, one rear wheel might “lock up” while the other did not, and the front of the vehicle might sway left and right. Mr. Ng further stated that from a maintenance and inspection perspective, such a large difference was not acceptable. He disagreed that the oil leakage situation of the Truck was not a defect[4]. Magistrate’s findings 11.The magistrate ruled Mr. Ng could testify as a vehicle inspection expert and ultimately accepted his expert opinion as objective, logical and unshaken under cross-examination, and gave it full weight[5]. 12.On the legal interpretation issue, the defence submitted that the Court should not consider whether a specific component of the vehicle has a physical defect, but rather whether the braking system as a whole was operating effectively and in good order. Given the total braking efficiency of the Truck met the statutory requirements, its oil leakage situation did not lead to any defects. On this issue, the magistrate held that Regulation 5(4) had a broader scope than Regulation 19 in that Regulation 19 set percentage requirements for total braking efficiency, whereas Regulation 5(4) comprehensively required every part of every braking system and its means of operation to be always maintained in good and efficient working order while used on a road. The magistrate found that even if the total braking efficiency met the requirement under Regulation 19, Regulation 5(4) might still be breached where a part of the system or its means of operation of one of the braking systems was not in good and efficient working order (“the Interpretation”). The magistrate considered that if the requirement under Regulation 5(4) for braking system were equivalent to the requirement under Regulation 19, it would be otiose[6]. 13.Based on the evidence of Mr. Ng, the magistrate found “the brake lining(/s) and brake drum of the offside rear wheel of the vehicle were covered in grease stains, resulting in the braking efficiency of the offside rear being seriously affected, clearly indicating a lack of maintaining every braking system and all parts of its means of operation in good and efficient working order”. She therefore convicted the appellant[7]. Ground of appeal 14.The appellant’s sole ground of appeal is that the magistrate erred in the interpretation of “good and efficient working order” under Regulation 5(4) of Cap. 374A by holding that even where a vehicle satisfies the statutory 50% total braking efficiency standard under Regulation 19(1), it can still breach Regulation 5(4) if one axle/wheel has “low” or “insufficient” braking efficiency. Consideration 15.The Court of Final Appeal in HKSAR v Hui Lai Ki (許麗琪) (2024) 27 HKCFAR 265 held that magistracy appeal is conducted by way of rehearing on the evidence before the trial court, supplemented by such further evidence as the intermediate appellate court may admit within its statutory power. The judge must be satisfied that the appellant’s guilt has been proved beyond reasonable doubt on the evidence, failing which the appeal must be allowed. On such rehearing, if the judge comes to a different view on the evidence before the court, that itself is an error which justifies appellate intervention to reverse the decision of the magistrate to convict. It was recognized that an appellate court conducting a rehearing would be subject to limitations arising from the fact that it does not have the advantage of receiving witness evidence first-hand. Hence, it must exercise caution when considering findings of facts based on oral testimony. Yet, despite those limitations, it remains the duty of the appellate court on an appeal by way of rehearing to come to its own conclusion on disputed issues of fact or law. A. Basis of conviction 16.Before addressing the proper interpretation of the Regulations, it is necessary to identify the basis of the conviction from the Reasons for Verdict. The appellant contended that neither the charge nor the magistrate’s ruling proceeded on grease stains per se as the operative defect, but rather on the basis that the brake drum/linings were not in good and efficient working order because the offside rear axle braking efficiency was seriously insufficient. On the other hand, the respondent contended that the substance of the defect was the greasy brake drum and brake linings at the offside rear wheel. The insufficiency of braking force at the offside rear axle was merely the result of that condition. The respondent submitted that the magistrate did not convict solely because one axle/wheel had insufficient braking efficiency. 17.The basis of conviction as set out in paragraph 48 of the Reasons for Verdict and its certified English translation are as follows:
18.In my view, a textual analysis of the magistrate’s finding above, in particular the syntax of the sentence, namely the use of a non-restrictive clause with commas before “resulting” (“以致”) and after “affected” (“受影響”), establishes a clear two-tiered finding of fact. First, by placing “the brake lining (/s) and brake drum of the offside rear wheel of the vehicle were covered in grease stains” (“ 該車輛的右邊尾輪制動皮及制動鼓佈滿油漬 ”) as the main independent clause, the magistrate explicitly identified the physical accumulation of grease as the underlying defect and the core evidence of lack of maintenance. Second, the subsequent clause, bracketed by commas (“, resulting in the braking efficiency of the offside rear being seriously affected,” (“以致右後方制動效能嚴重地受影響”)), and the use of “resulting” (“以致”) demonstrates that the magistrate did not consider the reduced braking efficiency as an independent or isolated failure. Instead, the magistrate found the grease stains directly impaired the braking efficiency of offside rear. Therefore, the appellant’s assertion that the magistrate ruled and convicted on the basis that “the brake drum and brake linings were not maintained in ‘good and efficient working order’ because the offside rear axle braking efficiency was seriously insufficient” (emphasis by the appellant) reverses the logic of the finding and is fundamentally flawed. 19.Furthermore, with reference to the explicit wording of the particulars of the charge, I am of the view that it clearly reinforces the causal relationship by emphasizing that the grease stains directly resulted in the reduced braking efficiency. 20.In fact, the context of the Reasons for Verdict clearly reveals the magistrate’s train of thought / line of reasoning: she first ruled that Regulation 5 had a broader scope of application than Regulation 19[8], and stated that the statutory requirements on braking system did not focus exclusively on the total braking efficiency and neglect the overall effective operation and maintenance[9]. The word “overall” plainly demonstrates that she was evaluating the braking performance as a whole, rather than confining her analysis to the reduced braking efficiency of a single axle. She further ruled that even if a vehicle met the statutory requirement on total braking efficiency, if there were other problems suggesting a failure to maintain good and efficient working order, it would still fall within the scope of Regulation 5(4) and she found that was precisely the situation in the present case[10]. 21.In conclusion, the basis of conviction is the lack of maintenance of the brake drum and brake linings leading to physical accumulation of grease stains. The result of the lack of maintenance is the reduction in the braking efficiency of the offside rear axle. This is similar to the situation in 香港特別行政區 訴 黃國聰 [2019] 5 HKC 144[11]. B. Interpretation of the Regulations 22.The appellant argued that the Interpretation would create four absurdities: (1) Regulations 2 and 19 define “braking efficiency” as a whole-vehicle/brake measurement and there is no legal concept of a single axle’s braking efficiency; (2) the Interpretation leaves vehicle users with no ascertainable, objective or commensurable standard for the “braking efficiency” of a single axle; (3) the Interpretation contravenes the principle of lex specialis; and (4) the Interpretation renders Regulation 19(1)(a) otiose. 23.The respondent supported the Interpretation. The respondent relied on Kennet v British Airports Authority [1975] RTR 164 to illustrate that even where the overall system might appear efficient, a defect in a particular component could constitute a breach of the “good and efficient working order” requirement. The respondent also submitted that “braking efficiency” was not confined to the whole vehicle, pointing to the word “total” in Regulation 19(1)(a) and the definition structure in Regulation 2, and argued lex specialis was inapplicable. The respondent further argued that it was nonsensical to treat Regulation 5(4) as only applying to defects unrelated to braking efficiency, and that in the present case the greasy brake drum and brake linings and their impact on braking force sufficed to establish breach of Regulation 5(4). 24.The appellant has in his written submissions set out the general legal principles regarding interpretation of the provisions, namely, to consider the legislative intent, and the Regulations, being a delegated legislation, is interpreted in the same way as the Road Traffic Ordinance, Cap. 374 (“the Ordinance”). 25.In construing Regulation 5(4), the Court should begin with the purposive approach. The Regulations concern the construction and maintenance of vehicles and are made pursuant to section 9 of the Ordinance. There can be no doubt that the legislative intent of the Ordinance and the Regulations is to ensure the effective regulation of the use of vehicles and roads. The statutory scheme of the Regulations is directed towards promoting road safety and protecting the public from the risks associated with defective or unsafe vehicles, including the potentially fatal consequences of road traffic accidents and the injuries and damage that may result[12]. The interpretation adopted by the Court should therefore be consistent with, and give effect to, that legislative purpose. 26.The Regulations are concerned with the construction and maintenance of vehicles. A vehicle is comprised of numerous interrelated components, each of which contributes to its safe operation. The construction and maintenance of the braking system is addressed by more than one provision in the Regulations, such as Regulation 16 on construction of brakes and/or braking system, Regulation 17 on parking brake, Regulations 18 and 18A on different operating system of braking systems and Regulation 19 on braking efficiency. From the evidence of Mr. Ng, there is no doubt that the brake drum and brake linings are either part of the braking system or part of the means of operation[13]. Whilst Regulations 16-19 do not specifically deal with the maintenance of brake drum and brake linings, it does not follow that brake drum and brake linings fall outside the ambit of the Regulations. As brake drum and brake linings are integral components of the braking system, they fall within the scope of the general provision of Regulation 5(4) governing the maintenance of “every part of every braking system and of the means of operation thereof fitted”. Any contrary interpretation would create an unwarranted gap in the regulatory framework and would be inconsistent with the legislative intent of promoting road safety. 27.In Kennet v British Airports Authority [1975] RTR 164, the court was concerned with regulation 94(1) of the Motor Vehicles (Construction and Use) Regulations 1973, that is very similar in its wording and effect to Regulation 5(4) in the present case. In that case, the car was fitted with fully hydraulic brakes. All the brakes in relation to 3 of the 4 wheels were in good and efficient working order but that was not the case for the front nearside brake. Expert witness was of the view that while the front nearside brake pads needed replacing, they were still serviceable. Allowing the appeal by the prosecutor, the court held that regulation 94(1)(a) required “a meticulous examination of every part of a braking system. …, that each part of the braking system as applied to each wheel must be looked at[14]”. It was held that if attention was concentrated on the braking pads for the front nearside brake, it became clear that that part of the braking system could not be described as being in good and efficient working order. 28.Applying the principle in Kennet to the present case, even if the total braking efficiency of the Truck satisfied the statutory requirement under Regulation 19, the critical issue remains the condition of the brake drum and brake linings. As integral components of the braking system, defects in those components may constitute a contravention of Regulation 5(4) notwithstanding compliance with Regulation 19. 29.The Regulations set out requirements concerning the construction and maintenance of vehicles. While some provisions prescribe quantifiable standards by reference to specific measurements or performance criteria, others impose objective standards that are not expressed in numerical terms. The requirement under Regulation 5(4) that a vehicle’s braking system be maintained in “good and efficient working order” is one such objective standard. 30.In determining whether a braking system is in good and efficient working order, regard must be had not only to the total braking efficiency under Regulation 19 but also to the condition and performance of the individual components that comprise the braking system. The braking efficiency of a single axle is therefore merely one of the factors to be taken into account in the overall assessment. The absence of a prescribed numerical standard for a single axle neither detracts from nor qualifies the overarching statutory requirement that the braking system be maintained in good and efficient working order. Accordingly, the appellant’s argument that the braking efficiency of a single axle is incapable of ascertainment misses the central issue. The ultimate question remains whether the braking system was in good and efficient working order, judged objectively in light of all the circumstances, including the condition and performance of its constituent components. 31.In the circumstances, I agree with the magistrate’s interpretation of Regulation 5(4). In other words, even if the total braking efficiency of a vehicle complies with the statutory requirement under Regulation 19, Regulation 5(4) extends to any defect in any part of the braking system that renders it not in good and efficient working order. In the present case, Mr. Ng testified that from the maintenance and inspection perspective, the huge difference between the brake force of the two sides of rear wheels was unacceptable. He further testified that given such a huge difference, the rear of the vehicle might “sway” meaning one rear wheel might “lock up” while the other did not, and the front of the vehicle might sway left and right. Based on this aspect of the evidence, it is clear that the lack of maintenance of the brake drum and brake linings resulted in reduced efficiency, hence the braking system had not been maintained in good and efficient working order. The prosecution has proved beyond reasonable doubt the charge against the appellant. 32.In view of the above, I find there is no merit in the appellant’s ground of appeal. The appeal against conviction is dismissed. Other observation 33.The particulars of the charge in the Chinese and English versions differ in that the “offside rear wheel” (“右邊尾輪”) was not mentioned in the English version. Nevertheless, the prosecution’s allegation is clear from the expert evidence. The discrepancy is merely technical, caused no prejudice to the appellant, and does not affect the safety of the conviction. As this point is not advanced as a ground of appeal, it is unnecessary to address it further.
Mr Brandon Ryan, PP, of Department of Justice, for the respondent Mr Wong Chun Man Dick and Mr Chow, Chun Hin Ulysses, instructed by Chan & Tsu, for the appellant [1] Reasons for Verdict, paragraphs 21-22 and 27 [2] Reasons for Verdict, paragraphs 23-24 [3] Reasons for Verdict, paragraphs 25-26 [4] Reasons for Verdict, paragraphs 28-29 [5] Reasons for Verdict, paragraphs 32-39 [6] Reasons for Verdict, paragraphs 41-47 [7] Reasons for Verdict, paragraph 48 [8] Reasons for Verdict, paragraph 43 [9] Reasons for Verdict, paragraph 45 [10] Reasons for Verdict, paragraphs 44 and 47 [11] Paragraphs 17-18 of judgment:
[12] HKSAR v Ho Loy (2016) 19 HKCFAR 110 at paragraph 20 and香港特別行政區 訴 李志堅 [2012] 2 HKLRD 626 at paragraph 22 [13] With reference to paragraph 18 of the judgement of 黃國聰, it is clear that brake drum and brake linings are regarded as part of the braking system. [14] At page 167K-L of the judgment |
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