The Queen v. Tony Chow Ki-wai

CACC000776/1984

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

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BETWEEN

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Coram: Deputy Judge Nazareth in Court

Date of hearing: 27th December, 1984

Date of judgment: 4th January, 1985

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JUDGMENT

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1. The Magistrate's findings of fact are not disputed in this Appeal. The Appellant drove down Fortress Hill Road where there was a "No U-Turn" sign, turned right across the road into the entrance of a parking building, quickly off-loaded a passenger, reversed into the road and then immediately drove back along Fortress Hill Road in the direction from which he had come. Counsel for him submitted at the Trial that because the turn was not executed in one sweep of the steering wheel i.e. because the Appellant turned right and then reversed, it could not be a U-turn.

2. The Magistrate rejected this argument on two grounds in the following terms: "First that the test must surely be " What is the effect of the manoeuvre of the car? If the effect of the manoeuvre is that the car has made a turn of 180°, then surely this must be a U-turn. Secondly, if I was to accept the defence argument, then every 'No U-Turn' notice could be ignored by mailing a short reverse or not completing the turn in one sweep of the wheel."

3. Mr. Thomas Lai for the Appellant says the Magistrate was wrong in rejecting the argument. He says that as a penal provision, restrictive of the liberty of the subject, the relevant provisions must be strictly construed and cites in support paragraph 910 Vol 44 of the 4th Edition of Halsburys laws; also FISHER v BELL [1961] 1 QB 394 as saying that it is not for the courts to supply the omissions in the case of a gap, even if the result sounds absurd; and finally Liew Sai Wah v Public Prosecutor [1968] 2 AER 738 for the general rule that penal enactments are to be construed strictly and not extended beyond their clear meaning.

4. Mr. Lai then goes on to submit that "U-Turn" in Diagram 59 of the First Schedule to the Road Traffic (Roads and Signs) Regulations, which read with Regulation 8, forms the statutory basis of the charge, must have its ordinary meaning. This Mr. Lai says is that found in the Oxford Concise Dictionary i.e. "driving of vehicle so as to face in opposite direction without reversing."

5. In support of this he constrasts Regulation 14 of those Regulations, which bears the marginal note "U-turns" and includes any turn made by a vehicle on a road in order to proceed in a reverse direction on that road, with the absence of such an express extended meaning in Regulation 8 read with diagram 59. He points also to diagram 37 which expressly provides for "No reversing into street", a prescribed though not commonly encountered sign in Hong Kong.

6. Mr. Lai submits therefore that only if a continuous U-turn is made without reversing, would it be caught by Regulation 8.

7. I see no reason to question the general propositions of that penal statutes must be strictly construed and that the courts ought not to supply omissions. But on the facts, I find neither Fisher's case nor Liew Sai Wah's case of assistance. In regard to the former "offer for sale" has a perfectly clear legal meaning. And in regard to the latter, there is a clear difference between complete hand grenades and the odd individual component.

8. And as to the narrow and literal construction he seeks to put upon the expression "U-turn", it does not commend itself to me at all. I find it difficult to accept that "U-turn" can have so precise and restrictive a meaning. Webster's Third New International Dictionary, for instance, defines U-turn as a turn resembling the letter U; specifically one made by a vehicle travelling along one side of a way by crossing the lane of oncoming traffic and turning into and proceeding along a lane on the other side of the way in a direction exactly opposite to the direction of movement at the start of the turn. This latter definition on its face would not in my view exclude reversing if that were necessary in the process of turning.

9. I see the relevant and clear object and effect of Regulation 8 as prohibiting the driving of a vehicle so as to face the opposite direction on the same road. Whether in the process of being turned a vehicle is for that purpose reversed or driven into a driveway leading off the road I consider relevant only so far as it might alter the real nature of the manoeuvre being effected. Mr. Lai's view would produce the absurd result that minor reversing in the course of U-turning (possibly even unnecessary reversing indulged in purely for that sole purpose) would defeat prohibition of U-turn as such. Such a literal and unreal view did not commend itself to the Magistrate; nor, as I have indicated, does it commend itself to me.

10. Rather would I be guided by the matter of fact approach approved by Michael Davies J. and Lord Lane C.J. in COULDIE V PRINCLE [1981] R.T.R. 525. There, in slightly oversimplified terms, there was a "No right turn" sign towards the end of a lane leading to a major road. The motorist, in order to avoid contravening the sign, turned left into an adjoining lane after passing the sign. He then drove some 60 yards into that lane, executed a U-turn, returned to the road and turned right. He was charged with contravening the "No turn right" order but acquitted by the justices who considered that the manoeuvre executed by the defendant did not contravene the order. The prosecutor appealed and the question arose whether the defendant had really turned right, out of the first lane, and whether he would be committing an offence if he travelled 100, 200 or 300 yards or whatever distance before turning around. Michael Davies J. and Lord Lane agreed with Counsel for the prosecutor that the only possible answer was that it was a matter of fact and degree. They declined to give guidance to the authorities concerned on what constituted a right turn in the circumstances concerned and expressed the view that it was a question of fact for the justices.

11. Gouldie v Pringle was originally cited by the Appellant's solicitor at the trial before the Magistrate on the basis that the Appellant had entered the parking building. However the Appellant's counsel at the Appeal accepted the Magistrate's finding that the Appellant did not actually enter the building, and so did not refer to Gouldie's case. Nevertheless I have found of considerable assistance the approach adopted by Michael Davies J. and Lord Lane in holding in effect that it was for the justices to examine the evasive or avoiding action taken to ascertain whether it had achieved its purpose.

12. I conclude therefore that the Magistrate was right in not according to the expression "U-turn" the narrow literal meaning urged on the Appellant's behalf. In my view not only was the Magistrate clearly entitled to come to the conclusion that he did (i.e. that the Appellant did make a U-turn) but that he was right in so doing. The momentary diversion into the entrance to the parking building in no way altered the Appellant's manoeuvre which remained in substance an U-turn.

13. I accordingly dismiss the Appeal.

Representation:

Mr. Thomas Lai (Ng & Lee) for Appellant

Miss Mary Ho for Crown