HKSAR v. Lalchadani, Vindu Nanik

HCMA52/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.52 OF 2005

(ON APPEAL FROM ESS 28690 OF 2004)

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BETWEEN

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Before : Deputy High Court Judge M. Poon in Court

Date of Hearing : 2 March 2005

Date of Judgment : 2 March 2005

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J U D G M E N T

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1.The appellant pleaded guilty in the magistracy to an offence of failing to give information on demand, contrary to sections 63(1)(a) and (6)(a) of the Road Traffic Ordinance, Cap. 374.  She was fined $3,000.  She now appeals against both conviction and sentence. 

2.From the homemade grounds filed, it is alleged that at the hearing before the magistrate, she did not have full understanding of the elements of the offence but was pressurized into pleading guilty.  It is also alleged that the fine is manifestly excessive.

3.The respondent does not seek to uphold the conviction.  Ms Yam, on behalf of the Department of Justice, has fairly conceded that the transcript of proceedings reveals that the plea might not have resulted from a “deliberate and informed decision”.

4.Under those circumstances, although she had entered guilty plea, the appellant could still avail herself of section 113 of the Magistrates Ordinance to appeal against conviction.

5.The appellant was the owner of a vehicle which was detected by radar to have been speeding at the material time.  According to the brief facts of the case which she had admitted in open court, she responded to two Notices Requiring Identification of Driver, within the required time, stating that she was unable to provide information of the driver.  A further letter stating the same was sent to the police later.

6.Section 63(5) of the Road Traffic Ordinance provides a defence for a defendant :

“… to show that he did not know, and could not with reasonable diligence have ascertained, the name or address or driving licence number of the vehicle at the time of the alleged offence …”

7.What transpired at the proceedings was that after pleading guilty to the offence and admitting the facts, the appellant, in mitigation, told the magistrate that she had immediately replied to the police whenever information was asked for, and she had been furnishing information that she could.  She went on to tell the court that she had many guests from India all having international driving licence.  It is clear that the magistrate disbelieved what the appellant said as the magistrate went on to question her as to how many car keys she had and commented that she should have kept a record and she should have known who had taken the car out.

8.What was advanced in mitigation by the appellant might constitute a defence according to section 63(5).  Of course, at the trial the burden is on the appellant to show that she did not know, and could not with reasonable diligence have ascertained who the driver at the material time was on a balance of probabilities.  The magistrate, on hearing that piece of mitigation, should not have accepted her plea of guilty but should reverse that plea and enter a plea of not guilty instead.

9.In the circumstances, this appeal is allowed, and I set aside the conviction and sentence and order a retrial.

Miss Sally Yam, GC for DPP, for the Respondent

Appellant in person