The Queen v. Murray-jones Paul
Read the full judgment text of HCMA 1189/1988 on BabelCite. This High Court CFI judgment.
1. This is an appeal against a conviction of the appellant in the Magistrates Court for failing to comply with a road marking - "bus lane" contrary to regulation 59(1)(b) of the Road Traffic (Traffic Control) Regulations (hereinafter referred to as the Traffic Control Regulations) made under the enabling provisions of Section 11 of the Road Traffic Ordinance Cap. 374.
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HCMA001189/1988 HCMA001189/1988 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) MAGISTRACY CRIMINAL APPEAL NO. 1189 OF 1988 ------------------------------ BETWEEN
--------------------- Coram : The Hon. Hooper, J. in Court Date of hearing : 16th December 1988 Date of Judgment : 10th January 1989 ---------------------- J U D G M E N T ---------------------- 1. This is an appeal against a conviction of the appellant in the Magistrates Court for failing to comply with a road marking - "bus lane" contrary to regulation 59(1)(b) of the Road Traffic (Traffic Control) Regulations (hereinafter referred to as the Traffic Control Regulations) made under the enabling provisions of Section 11 of the Road Traffic Ordinance Cap. 374. 2. The appellant appeals on the ground that the decision of the magistrate was wrong in law and in f act. The first point of law is that the road signs and markings must be clear and unambiguous to enable a reasonable man to understand their meaning and the second that there are occasions when it is permissible to enter a "bus lane" and that this was one of them. 3. He complains that the magistrate erred in fact in saying that he didn't keep a proper lookout and also in saying that the northernmost sign of the three road signs was irrelevant. Furthermore, he complains that the magistrate based his decision on the sketch plan, Exh. P1, produced by the prosecution witness, which is so far out of scale as to give a completely misleading picture and is factually inaccurate in five significant features. 4. To economise on words, a copy of the sketch is annexed to this judgment. 5. With regard to his last point, it was admitted by the prosecution witness that the sketch is not to scale. The only two Trays in which it was challenged in the court below as being inaccurate is that the slip road through which the driver of a vehicle can make a U-turn is shown too far up on the sketch and that the last sign should not be level with the slip road as shown in the sketch. 6. However, there is reason from the sketch itself for doubting its accuracy in relation to the place where the bus lane starts. The sketch shows it as starting from the first sign on the left hand side of the road whereas the second sign is the one which comes the closest to figure 232 of the First Schedule of the Traffic Control Regulations which is a prescribed sign giving advance wearing of a bus lane. There would seem to have been little use in giving an advance warning, if the bus lane had already commenced at the first sign. 7. The appellant who was unrepresented in the court below and remains unrepresented in this court has sought to show me with the add of an enlarged copy of an official survey map of the area just how inaccurate the sketch is. He has also told me of the various measurements. However, the se matters were not raised in the Magistrates Court. Although I have power under Section 118(1) (b) of the Magistrates Ordinance Cap. 227, to hear additional evidence if I think it necessary, I have for that purpose the like powers of the Court of Appeal under Section 83V of the Criminal Procedure Ordinance. That means that unless I am satisfied the evidence would not afford any ground for allowing the appeal, I should exercise my powers when:- (a) it appears to me that the evidence is likely to be credible and would have been admissible in the magistrates court on an issue which is the subject of the appeal; and (b) I am satisfied that it was not adduced in the court below but that there is a reasonable explanation for the failure to adduce it. 8. Whilst I am satisfied on (a) I do not think that the mere fact that the appellant was unrepresented in that court would be a reasonable explanation for failing to adduce the evidence there. 9. I therefore reluctantly feel that I must decide this appeal having regard to the evidence as recorded in the magistrates court and not base my decision on matters told to me for the first time by the appellant in this court. 10. The evidence in the lower court came from two witnesses, the police constable who stopped the appellant's car and the appellant himself. 11. The police constable gave evidence that at 21.28 hours on, the 14th February 1988 he was on motorcycle patrol duty in Kowloon east when he saw the appellant's private car stationary in the bus lane in the first position of the car shown in his sketch, Exh. P1. He testified that the appellant had failed to comply with a road marking. The word "bus lane" was painted on the road. He issued a summons. He drew the sketch, Exh. P1, that same evening around 10:30 p.m. when his memory of the incident was still fresh. He testified that there was some dispute between the appellant and himself and that his superior officer was summoned to the scene and soon after that he himself left the scene. He testified again that the appellant failed to comply with road markings saying that a private car was not allowed to be in the bus lane at the material time. 12. I have set out in summary form what the prosecution witness said in chief. He was cross-examined at some length by the appellant and agreed that there was no misunderstanding between he and the appellant when the appellant's wife toll him that neither she nor the appellant had any idea it was a bus lane. He agreed that there were two signs there, one was erected, the other vas the painting on, the road. He described the erected sign as being in accordance with the photograph Exh. D1. That shows a rectangle with a perpendicular line in the middle dividing the sign into two parts. On both sides of the diving line is an arrow pointing upwards. Under the first arrow on the left hand side appears the word "bus" in English and Chinese characters, but under the arrow on the right hand side there are no letters or characters. He admitted that there was a discussion between the inspector and the sergeant (who arrived at the scene later) in respect of this sign, but denied that either the sergeant or the inspector had said that he didn't understand the sign. He did admit that he saw a number of vehicles proceeding, along the bus lane the agreed that the two arrows on the sign in the photograph both referred to the road ahead and not the slip road to the right. So it was his evidence that the third sign in the sketch from the bottom referred to the road ahead. 13. In answer to the court, he testifed that the bus lane commenced from the first broken line on Exh. P1 at the lowest point marked,i.e. the first sign. He then described that first sign on the left of the road as follows:
14. No mention was made by the witness about the second sign from the bottom other than to include it in his sketch. 15. The appellant himself gave evidence. He is recorded as saying that on the evening in question his wife and he were driving up Waterloo Road . There was quite a lot of traffic and it was dark. There was a good deal of road work in the area, a large number of diversions, temporary signs and so on, "which makes finding one's way ahead quite difficult". Futhermore, because of living on the Hong Kong side, they were not familiar with that part. They wanted to come up Waterloo Road and to turn left to go to Yau Yat Chuen. As they approached the third sign, they realised from the sign that the left hand lane to turn left was a bus lane and clearly marked as such. They saw from the sign there was a division down the entire sign. On the right hand division was an arrow with no indication on it. And so it appeared to them that they were able (though not wanting to do so) to go straight ahead, taking the route shown on the plan produced by the police constable. 16. When, they were stopped by the police officer they both protested they had not gone up a bus lane. They all went back to the third sign where the police officer said he knew it was a bus lane but he couldn't understand the sign and so he called up on his radio and a sergeant appeared on a motorcycle. The sergeant spoke extremely good English and when they pointed out the incongruity of the sign, he also said he wasn't sure. Then he called up and a police car with a Chinese inspector and two or three policemen in it arrived. By that time he thought two other police motorcyclists had appeared at the scene and he mentioned counting ten police officers in total all looking at the sign and trying to interpret its meaning. During the time this was going on, a number of cars went by some turning right some turning left and eventually he suggested to the sergeant when one had turned left that he do something about it whereupon the sergeant did despatch a motorcyclist. 17. He testified as to what the inspector said in Cantonese, but admitted that he had to rely on his wife's interpretation on that. However, since his wife was not called to give evidence as to the correct interpretation, his evidence about what the inspector said was hearsay and could not be relied upon as establishing what the inspector had in fact said. 18. He produced the photograph Exh. Dl showing the third sign and also the road marking upon which this prosecution is based. He said:-
19. He complained that the third bus sign was "misleading and inaccurate" and that they were not to blame. He produced the Road Users Code as Exh. D2 with a view to showing that, there should have been the word "bus" underneath the right arrow. 20. Under cross examination, he testifed that the signs which he said were not noticeable were the signs painted on the road. He admitted that of the signs on the left hand side of the road, he did not see the first one, but he saw the second one which was not quite clear to him and then he saw the third and last and definitive one. The bus markings on the road for the bus lane stretched for quite a distance on the plan Exh. P1. On the Waterloo Road he had no idea how far the bus lane markings stretched. He said: -
21. Finally, he said "Of course we were travelling in a bus lane, but it was not indicated as such on the sign." 22. In re-examination, he stressed that they were carefully looking where to go and that of the police officers, the constable, the sergeant and the inspector did not know what the sign meant. 23. It would appear that the only officer he was able to understand himself without the aid of his wife as an interpreter was the sergeant who he said spoke very good English. Furthermore, it was not within his province to tell the court what the sergeant meant or knew because that would be for the sergeant to say, but he could tell the court what the sergeant said and leave the court to draw its own conclusion. 24. Although his evidence does not establish what the constable had said at the scene in cantonese, it is obvious from the constable's evidence in court that he misunderstood the meaning of that third sign. 25. The learned magistrate in his Statement of Findings said:-
26. As I have said the appellant 's first ground of appeal is that road signs and markings must be clear and unambiguous to enable a reasonable man to understand their meaning 27. As I understand the appellant he is not complaining about the details of the road marking which were found by the magistrate to be in accordance with Figure No. 510 in the Second Schedule of the Traffic Control Regulations, except to say that they were not noticeable because of the conditions at that time e.g. dust and sand on the road. As I understand him, he is saying that the road signs and markings should work together and not contradict each other. He says it is clear that they contradicted each other in this case because both arrows in the third sign refer to a road ahead instead of the slip road to the right, whereas the marking on the road indicates that the road ahead is a bus lane. 28. The appellant argues, on the basis of what a reasonable man would understand, that not only had the police constable admitted in court that, the two arrows in the sign referred to the way ahead, but the sergeant also didn't understand the sign at the scene. Furthermore, on the evening in question a number of cars had taken the same route as the appellant himself. He contends that the third sign is like a beacon on the Cornish Coast luring shins to their doom. He argues that the magistrate was wrong to hold that the traffic signs were irrelevant. 29. He refers to certain authorities in Wilkinson's Road Traffic offences to support his contention that if a sign doesn't comply with regulations, no offence is committed by a driver failing to comply with that sign. 30. With respect to him, I do not think the English authorities can be of any assistance in Hong Kong because of the terms of our own statutory provisions here. 31. Section 110 of the Road Traffic Ordinance provides:
32. However, there appears to be no doubt in this case that the relevant road marking did in fact comply with Figure No. 510 in the Second Schedule of the Traffic Control Regulations 33. The question that arises on this ground of appeal is whether one should view the contravened marking in isolation, when one is considering whether an offence has been, committed of failing to comply with that marking. 34. Regulation 59 provides:
35. Regulation 61, which creates the offence, provides:
36. So there must he no reasonable excuse. Because of Section 94A of the Criminal Procedure Ordinance the burden of proving a reasonable excuse lies on the person seeking to avail himself of it. If the appellant intended to rely on such an excuse in the court below, it was necessary for him to establish on the balance of probabilities (i.e that it was more likely than not) that he had an excuse and it was a reasonable one. 37. In my view, when the appellant was complaining about the road markings not being noticeable because of the conditions prevailing at the time and when he was complaining about the ambiguity in the road signs, as opposed to the road markings, he was in effect saying that he had a reasonable excuse though he didn't express that defence in so many words. He was, of course, unrepresented in the court below and may not have been aware of that particular defence, relying on a common sense approach, but the effect of this defence was in my view the same. He was in effect saying "yes, I contravened the road marking, but I had a reasonable excuse for doing so." I think when one is considering such a defence, it is wrong to concentrate purely upon the one road marking referred to in the charge. One has to look at all the circumstances prevailing at the time including whether the marking was noticeable, whether signs were misleading, and whether a reasonable man in like circumstances, would have been misled into contravening the relevant markings. 38. The magistrate did not consider this defence at all. With respect to him I think he was wrong to take the view that he was not concerned with the appellant's discussions with the police officers about the meaning of the erected signs shown in D1, and that he was not conceived with the conduct of the other road users. If the police officer who saw the sign at the time was confused about the meaning of the sign and if other car drivers using that portion of the road at the time were confused about the meaning of that sign, that was evidence which would be relevant to the question as to whether a driver who contravened the road marking had a reasonable excuse for doing so. 39. It is perhaps worth noting that a bus lane is defined in the regulations as meaning:-
40. So there are two elements to a bus lane, (1) a boundary marking, and (2) a commencement marking. 41. A commencement marking without any visible boundary markings would apparently not bring it within the definition of a "bus lane". There must be a commencement marking of the type shown in the Figure No. 510. That marking is painted on the road with elongated letters and characters to be visible from a distance on approaching the commencement of the bus lane. A boundary marking without a commencement marking similarly would not bring it, within the definition of a "bus lane". 42. The marking in Figure No. 510 painted on the road in this case does not appear to be painted at the commencement of the alleged bus lane which, according sketch, started back at the first sign. The second sign appears to he an advance warning sign and would only serve to confuse if the bus lane had, started back at the first sign. The third sign did apparently confuse two police officers and some other drivers. 43. There is no doubt that the Commissioner may under Regulation 3, cause or permit road signs to be erected, other than prescribed road signs, and under Regulation 8, cause or permit road markings to be placed on or near any road other than prescribed road markings, and in each case if he does so, they may under Regulation 9, he of such size colour and type as the Commissioner considers appropriate. Furthermore, under Regulation 3, para (3), "he may vary any lines ...... placed under that regulation to adapt the marking to the particular circumstances of the place." However, it appears to me that the appellant is not precluded from raising the defence of "reasonable excuse" when signs are erected or road markings placed which are confusing in the circumstances prevailing at a particular time. In this case there appears to have been an issue as to whether, in all the circumstances including the dust and sand on the road surface, the darkness, the amount of traffic and the road signs erected on the side of the road, whether the appellant had a reasonable excuse for contravening the road marking which was in conformity with Figure No. 510. 44. With the greatest respect to the magistrate, I do not consider he really understood the defence which the appellant was putting forward. His finding that the appellant did not keep a proper lookout appears to he based only on the assumption that the appellant had overlooked the markings, signs, and misinterpreted the erected sign shown in D1. He said that in the circumstances there was no defence and that the appellant had no basis for his contentions about the third erected sign being misleading or inaccurate. 45. That finding would appear to conflict with the evidence of the appellant that he was carefully looking where to go and that a police sergeant also misunderstood the sign, that the constable obviously didn't understand it, other drivers apparently didn't understand it and that the road markings were "not noticeable" because of the dust and sand and other circumstances prevailing at the time. 46. In all these circumstances I consider that the conviction should not stand. 47. I would like to say in passing that I can see no merit in the appellant's second point of law that he had a defence under Regulation 12 that this was one of the occasions when it is permissible to enter a bus lane as prescribed in that regulation. In my view, it clearly wasn't. The appellant was neither seeking to make an exit or entry to a part of the carriageway other than a bus lane, nor was he crossing a broken line to make a turn in or out of a road, premises or place adjacent to the carriageway. 48. However, for the reasons already stated, I have decided to allow the appeal and set aside the conviction.
Representation: Mr John Halley, Sr.c.c., for crown Appellant Murray-Jones Paul in person |
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