Pang Wing Luk v. The Queen
Read the full judgment text of CACC 347/1968 on BabelCite. This Court of Appeal judgment was delivered on 2 August 1968.
1. The appellant was convicted on two charges, the first of causing a vehicle to wait on a road where no waiting was allowed and the second of obstructing a police officer in the exercise of powers conferred under the Road Traffic Ordinance. On these charges he was fined $50 and $350 respectively.
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CACC000347/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 347 OF 1968 -----------------
Coram: Huggins, J. Date of Judgment: 2 August 1968 ----------------- JUDGMENT ----------------- 1. The appellant was convicted on two charges, the first of causing a vehicle to wait on a road where no waiting was allowed and the second of obstructing a police officer in the exercise of powers conferred under the Road Traffic Ordinance. On these charges he was fined $50 and $350 respectively. 2. The appeal against the conviction on the first charge has been abandoned and stands dismissed. On the second charge both conviction and sentence are attacked. 3. The facts found by the learned magistrate were that a Police Constable saw the appellant disobeying a "No Waiting" sign and asked for his driving licence. The appellant started the engine of his car and the Police Constable told him not to drive away but to give him his licence. The appellant handed over his licence but, on opening it, the Police Constable discovered that the name and address of the appellant, a person apparently of Chinese race, was written in Romanized form, which he could not read. Thereupon the constable appears to have handed back the licence and to have asked the appellant for his name in Chinese characters. The appellant did not comply with this request and subsequently refused to show the licence a second time. 4. It is submitted that the conduct of the appellant did not constitute an offence under s.31(4) of the Ordinance. The material part of that sub-section reads:
Counsel points out that in his findings the learned magistrate said: "clearly the offence was committed when (the appellant) refused to return the licence ... on being so requested", from which it would appear that the magistrate assumed that the constable was purporting to act under s.31(1), which allows a police officer to require production of a driving licence in certain circumstances. It is contended that as the appellant did produce his driving licence when it was first asked for he had done all that he could lawfully be required to do: a police officer is not entitled to harass a driver by requiring production of his licence time and time again. Secondly it is submitted that even if the officer could lawfully require production a second time in connection with his reasonable suspicion of the commission of only one offence the appellant's failure to produce the licence was not "obstruction" within the meaning of subsection (4) but should have been charged under the provisions of subsection (3), which make it a specific offence for a driver to fail to produce his driving licence immediately when asked for it. As counsel has said, the summons did not particularize the powers which the constable was purporting to exercise and he was never asked directly what was in his mind. Nevertheless his evidence suggests to me that it was not so much the refusal to produce the licence a second time as the appellant's refusal to give his name in Chinese which led to this charge. The constable said: "I told him I knew it was his licence. If he refused to give me his particulars I would summons him for one more offence, i.e. for refusing to give particulars to a Police Constable in uniform". There is no power of this nature given by the Ordinance to a police officer in uniform which is not given to a police officer not in uniform, but part of s.29(1) provides:
It has not been suggested that the duty imposed on a driver to give his correct name is not associated with a corresponding power "under the Ordinance" to demand his correct name. If the constable had power under the Ordinance to demand the appellant's correct name it seems to me irrelevant that he misconceived the exact extent of that power or even if he was mistaken as to the source of the power which had been conferred upon him. Nor can I agree that, as I think was somewhat tentatively argued, the powers conferred by ss.29 and 31 are mutually exclusive. Therefore in asking the appellant's name the constable was, I think, clearly exercising a power conferred under the Road Traffic Ordinance unless it can be said that by handing over his licence the appellant had already done all that he could be required to do. It will be seen that I approach the matter somewhat differently from the learned magistrate and I find it unnecessary to decide the two questions raised in relation to the power to require production of a driving licence. 5. Counsel has argued that a driving licence must be presumed to show a driver's "correct name" and that if he produces his driving licence (and a fortiori if he hands over his driving licence) he has "given" his correct name. It is sufficient for the purposes of this case for me to say that I do not agree with the second proposition. I can conceive of many circumstances in which a driver may purport to communicate his correct name without in fact giving it. For example, if at the moment he speaks a noisy vehicle passes and drowns his voice so that it is inaudible, can it seriously be contended that he has "given" his correct name? I think not. Without being unduly legalistic I think a "giving" must involve a "receiving". So here, what was given was the driving licence, but, to the knowledge of the appellant, the constable could not read what was written in it. The appellant's attitude that this was the misfortune of the constable and that he (the appellant) was entitled to take advantage of it was neither courteous nor reasonable: indeed, it is obvious that the appellant behaved in a most ungentlemanly manner throughout. Counsel for the Crown was disposed to concede that if a Chinese gives his name in writing in Romanized form that is "giving" his correct name. I do not accept that as necessarily right. It was the appellant's duty to give his correct name in such a manner, either orally or in writing, that the constable, acting reasonably, could receive it. I cannot see that this construction of para. (a) of s.29(1) imposes any unreasonable obligation upon a driver but, on the other hand, it is a necessary construction if the manifest intention of the legislature is to be given effect to. 6. However, it still remains to consider whether the failure to give the appellant's name, even though it was clearly an offence under s.29(2), was an offence under s.31(4). Counsel submits that it was not "an obstruction". For the proposition that mere silence can never be obstruction he cites Rice v. Connolly(1). In that case Lord Parker, C.J. said at p.651:
It is submitted, as I understand it, that the word means the same in s.31(4) of the Road Traffic Ordinance and that failing to give one's name is not "doing an act" but is the very opposite - not doing an act - and that is why it was necessary to act s.29(2). However, it would seem from Lord Parker's judgment when read as a whole that he thought the refusal of Rice to assist the police was an obstruction, but not a "wilful" obstruction, for he said: "the sole question here is whether the appellant had a lawful excuse for refusing to answer the question put to him"; and the learned Chief Justice held that he had. As I was referred only to the report of this case which appeared in The Times Newspaper I did not have the advantage of hearing counsel's submissions on the dictum of James, J. at p.652, where he said:
The learned judge did not indicate the sort of circumstances he had in mind. All three judges appear to have been basing their decision on Hinchliffe v. Sheldon(2), where the appellant had in fact done an act, namely given a warning to the licensee. In Betts v. Stevens(3) an Automobile Association scout was held to have obstructed the police when he warned a speeding motorist of the existence of a police "trap". It is notorious that thereafter the Association's scouts refrained from saluting members when they desired to give warning of a speed trap and there is no reported case of such inaction being successfully challenged as "obstruction". As against this it was said by Lord Goddard, C.J. in Hinchliffe v. Sheldon(2) that if the police had ...(illegible) on the door and the licensee had not opened the door for several minutes the justices could have found that the licensee was obstructing the police. In other words mere inaction may in certain circumstaces amount to obstruction. 7. If that be correct, as I believe it is, the question in the present case is narrowed down to this, is the word "obstruction" in s.31(4) to be given an unusually narrow construction or may the same failure be the subject of a charge under either s.29(2) or under s.31(4)? Counsel says that the words of s.31(4) themselves show that refusal to answer an enquiry authorized under s.11(8) was to be distinguished from obstruction and indicate an intention to restrict obstruction to conduct other than a refusal to give information, although the precise limit of the restriction was not canvassed: if a refusal to answer an enquiry authorized under s.11(8) is not an obstruction why should a refusal or failure to give a driver's correct name and address be an obstruction? Counsel relies upon the principle that the legislature must be presumed not to waste words and he argues, in effect, that if obstruction is wide enough to embrace a refusal or failure to give information then not only are the words "refuses to answer" in s.31(4) superfluous but so is much of s.29(2) and much of s.31(3). The presence in s.31(4) of the words "without prejudice to any other provisions of this Ordinance" rob the argument of some of its force, but it does not destroy that part of the argument which rests upon the distinctions apparently drawn within the subsection itself. The point is not without difficulty and it was not taken before the learned magistrate, but I have on consideration come reluctantly to the conclusion that it is valid and that the conviction was wrong. 8. The appeal against conviction must be allowed and in the circumstances I say nothing about the propriety of the heavy sentence which was deliberately imposed in respect of this charge. 2nd August 1968. Representation: Sanguinett (H.H. Lau & Co.) for appellant Michael Wong for respondent (1) (1966) 2 All E.R. 649. (2) (1955) 3 All E.R. 406, 408. (3) (1910) 1 K.B.D. 1 |