HKSAR v. Chan Chiu Kwok

HCMA 506/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 506 OF 2004

(ON APPEAL FROM STV 196 OF 2003)

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Before: Deputy High Court Judge E Toh in Court

Date of Hearing: 13 August 2004

Date of Judgment: 16 September 2004

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J U D G M E N T

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1.This is an appeal against conviction.  This case was heard in Chinese but since the appeal turns on the interpretation of the Road Traffic Ordinance, I will deliver my judgment in English.

2.The Appellant had been convicted of a charge of driving in excess of the speed limit.  The road in question is the Lantau Link near Chainage No. 15.2 and the speed limit enforced on that road at that time was 80 kilometres per hour and the appellant was driving at 97 kilometres per hour.

3.At the trial the defendant put the prosecution to strict proof and he also challenged the accuracy of the laser gun.  The learned Magistrate had dealt with the issues raised by the Defendant on the facts, accurately, and his Statement of Findings has sufficiently set it out and I do not wish to recite them here.

4.There was one point that caused me concern which was raised at the trial and also on appeal.  The Appellant submitted that when the Commissioner of Police wishes to vary the speed limit of any road, he has to do so, by way of notice in the gazette under section 40(2) of the Road Traffic Ordinance Cap. 374.  Section 40 of the Road Traffic Ordinance Cap. 374 says this:

(1)     subject to subsection 2 and subsection 5, the maximum speed at which the vehicle may be driven on any road shall be 50 kilometres an hour.

(2)     the Commissioner may by notice in the gazette –

(a)    vary the speed limits specified in subsection 1 for any road specified in the notice, either generally or during the period specified in the notice;

(b)     declare that any road specified in the notice is liable to be subjected at different times to different speed limits; …

5.The Appellant was charged under section 41(1)(a) of the Road Traffic Ordinance, which says this:

(1)     A person who drives a vehicle on a road at a speed exceeding –

(a)    50 km an hour or such other speed limit as may be in force on that road under section 40; …….

6.The Appellant therefore submitted that the speed limit in force at the time of the offence was invalid and therefore according to the law, the speed limit in force at that time should be 50 kilometres an hour.  Therefore, the Appellant said, had he known that it was 50 kilometres an hour he would not have driven at the speed of 97 kilometres per hour as he would have driven way below 80 kilometres an hour and therefore he was misled by the invalid speed limit to committing this offence.

7.Mr Lam for the Respondent agreed that the Road Traffic Ordinance section 40 is applicable in this case but he argued that even if it was so, the Appellant was still driving an excess of the speed limit applicable at that time, which is 50 kilometres an hour, and, therefore the conviction of the Appellant was still valid.  By this concession, the prosecution agrees therefore that the learned Magistrate was wrong in his interpretation of section 40 (2)(a) of the Road Traffic Ordinance as the learned Magistrate at page 7 of his Statement of Findings had decided that the words “the Commissioner may by notice in the gazette” meant that the Commissioner had the choice whether to put the notice in the gazette when he wishes to vary the speed limit.

8.I agree with both the Appellant and the Respondent that the word “may” in the section is to be read with “vary the speed limit” and if one read the section properly, it is saying that the Commissioner may vary the speed limit only by notice in the gazette.  In other words, the Commissioner can choose to vary any speed limit on any road but it is necessary for him to put the variation of such speed limit in a notice in the gazette.

9.Although there is some merit in Mr Lam’s argument that whether the speed limit was 50 kilometres per hour or 80 kilometres an hour, the Appellant was still speeding, I am of the view, however, that since the speed limit of 80 kilometres per hour on that section of road was invalid, the road sign stipulating that speed limit was therefore misleading to the Appellant, and there is some force in the argument that had he known that the actual speed limit was 50, he would not have driven at 97 kilometres per hour and therefore he would not have been stopped for speeding on that day.

10.It is little like the “chicken and egg” theory but nevertheless in order to be fair to the Appellant in this case, I feel that the proper and just course to take is to allow the appeal against his conviction.  The Appellant’s conviction is quashed and if the Appellant had paid his fine and costs, the money will be returned to the Appellant.

11.Finally, I would ask that the Respondent inform the proper authorities of this judgment.

Mr Gary Lam, SGC, of Department of Justice, for the Respondent

Chan Chiu Kwok, Appellant in person