HKSAR v. Ball, John Edward

HCMA175/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.  HCMA 175 OF 2005

(ON APPEAL FROM STK30 OF 2004)

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BETWEEN

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Before:  Deputy High Court Judge Line in Court

Date of Hearing:  27 April 2005

Date of Judgment:  27 April 2005

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J U D G M E N T

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1.In this case, the Appellant, Mr Ball, appeals against an order directing him to pay a fixed penalty.  The fixed-penalty ticket was issued to him because he parked his motor car on 28 January of last year on Kwong Fook Road in Kowloon and a police officer, seeing it standing there, put a ticket on it which alleged that it was in such a position as to be likely to cause unnecessary obstruction.  Mr Ball attended before the Magistrates Court, contested the case and lost.  He was ordered to pay the fixed penalty and an additional penalty and $560 costs.  He appeals the making of the order and the sentence. 

2.As regards the making of the order, we are clear what the law is in this court - there is no doubt about it - and, in fact, if you park a vehicle on a road like this, then it is likely to cause an obstruction.  No one in Mr Ball’s case says that an obstruction was actually caused, but it was likely to be caused because other road-users could not use that specific bit of road. 

3.So the questions is:  was the likely obstruction an unnecessary one?  That involves looking at why the vehicle was there, how long it was there for, and all the surrounding circumstances. 

4.The Appellant told the Magistrate - I have no reason to doubt him at all - that the vehicle was, in fact, only there for five minutes or so whilst he went across the road to go to visit three separate filling stations.  He made his calls upon the stations because he wanted a repair done to his car and, indeed, he showed me pictures that show some damage to the front of the vehicle.  The Appellant says there was, in the circumstances, on this wide road, room to get by for another vehicle; an unnecessary obstruction was not proven. 

5.The answer the Respondent to the appeal put up is this:  that if it was only for a short moment just to go into the petrol station in order to inquire about the possibility of repairs, then there was ample scope to drive into the filling station.  You do not have to go into a filling station just for petrol.  People go in there to use the shop, to use the air-hose, to use things like that, and there is room for a car to pause there for the short time necessary for the inquiry to be made.  The Respondent’s case is simply that, in those circumstances, it was not necessary to leave it on the road because he could have gone into the garages or filling stations in the way I have just mentioned.

6.It is a borderline case.  It is not easy to decide but, having looked at all the evidence, I judge that the Respondent’s argument is the right one.  If you are strict about this and look at it - was it necessary to park on the road - the answer is, it was not.  He could have gone into the filling station. 

7.So I shall confirm the order made directing payment of the fixed penalty.  However, Mr Ball, who has presented this case very nicely also puts in issue the sentence imposed and I can do something for him in this respect because an additional penalty was ordered. 

8.It is with some diffidence that I take this course because I imagine the Magistrate would have had in mind, better than I, the provisions of the Fixed Penalty Traffic Contraventions Ordinance.  But having looked at it in court with Mr Brook, who appears on behalf of the Respondent, we see that section 20(3), directs that an additional penalty shall be ordered in certain circumstances but none of those circumstances fit the case of Mr Ball here.  The circumstances are that either he did not turn up, which was not the case; or that he offered no defence - that was not the case; or that the defence was frivolous and vexatious.  Mr Brook does not suggest that it was frivolous or vexatious, and that is a sensible concession because one can quite see why a layman parking in the circumstances he did, may come along and say it was not going to be an unnecessary obstruction.  Even though he lost the issue, it was not frivolous or vexatious to take the point. 

9.I can see no other way in which the magistrate could have imposed the additional penalty.  If I am wrong about this, I regret it but, in those circumstances, I shall alter the sentence and I shall say that the appeal against sentence is allowed to the extent that the additional penalty is quashed and the order that will remain will be the payment of the fixed penalty of $320 and the order for costs for $560. 

Representations:

Mr E J Brook, Senior Government Counsel of the Department of Justice, for the Respondent

Appellant, Mr John Edward Ball, in person