Ng, Chung Hon v. HKSAR

HCMA456/2005

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 456 OF 2005

BETWEEN

Before: Deputy High Court Judge Carlson in Court

Dates of Hearing:  29 June 2005, 30 June 2005, 4 July 2005, 16 September 2005

Date of Judgment: 16 September 2005

J U D G M E N T

1.This is an appeal by the defendant against a finding of guilt entered by Miss Bina Chainrai at the Eastern Magistrates’ Court on 24 April this year, following which she fined him $1,000 and ordered him to pay costs of $500.  He had pleaded not guilty before her to a summons which alleged that he had failed to report alterations to his motorcycle, which is an offence contrary to Regulation 18(1) and 60(1) of Cap. 374.

2.This matter concerns a Honda motorcycle which the defendant owns and is a matter which has something of a history.  It is also right to observe that this appeal has taken somewhat longer than one might normally expect a relatively straightforward matter to take which will become apparent as I go through the chronology. 

3.The case relates to the colour of the motorcycle.  I have been provided with a very helpful chronology of events on behalf of the prosecution.  The record kept by the Transport Department shows that on 27 October 1997 the motorcycle was registered with the Department as being black.  On 8 September the following year, the record showed that someone had changed the registered colour to silver, and subsequent to that, the defendant became the owner of the motorcycle. 

4.On 13 March 2002, a police officer saw this motorcycle in the street and on that day it was obviously black or of a dark colour, but the licence plate on the vehicle recorded the colour as red, and indeed that conformed with the record kept at the department which showed that the vehicle was registered as red.  The defendant was summonsed for an identical offence as the one which had brought him before the Eastern Magistrates’ Court in April this year. 

5.In the course of the hearing of that summons, he gave evidence before the magistrate at Kwun Tong and he explained to her that his motorcycle had been involved in an accident and that various parts of the motorcycle had to be changed and the salesman at the garage, where all this was dealt with and the accident damage was repaired, had told him apparently that the manufacturer of the motorcycle, Honda, stipulated that the colour was red and that is how he should register the colour which is what he did.

6.I have a transcript of that trial which was obtained in the course of the hearing of this appeal and it is plain from that transcript that the magistrate had looked at the motorcycle which had been brought to court and she had formed the quite correct conclusion that it was black or dark purple which was another colour which she proposed but that it was certainly not red.  Nevertheless, she felt constrained to dismiss summons on the basis that perhaps she felt the defendant had been labouring under some sort of misunderstanding, having regard to what the salesman had told him that the manufacturer considered that colour was red and that he had gone to the Transport Department and reported it as red and so she felt that the correct course to adopt was to dismiss the summons.

7.What else is clear from the transcript of that trial at Kwun Tong is that she very sensibly advised him to go and get it correctly registered as black, and it is quite clear from a fair reading of the transcript that he accepted that and off he went, having been acquitted on that occasion. 

8.Instead of doing that, he left matters as they were.  What next happened was that on 25 September 2004 a police officer saw his motorcycle in the street.  He formed the view that it was black or dark but the licence of course stated that the colour was red and so once again he was summonsed this time, as I have already observed, before Miss Bina Chainrai sitting at the Eastern Magistrates’ Court for an identical offence.  Again, he denied the summons.  The learned magistrate called for the motorcycle.  She looked at it.  She certainly formed the view that it was black and she found the summons proved, fined him and ordered him to pay costs in the way that I have already indicated.

9.In the course of the appeal before me which has been heard over parts of a number of days, he has raised this history again and put forward the reasoning that he had put forward before the magistrate at Kwun Tong in 2002 and the same reasoning or the same explanations which he had given before Miss Chainrai in April this year. 

10.Having regard to the fact that he had been acquitted at Kwun Tong in 2002 for the identical offence, I thought it right to call for a transcript of that trial which of course is before me and which I have already referred to.  The reason why I did that was to ensure that there was not going to be any unfairness working against the defendant where he had already been acquitted of an identical offence.  It is quite clear from that transcript that the reasons which motivated the acquittal were that he may have been labouring under a misunderstanding, having regard to what the salesman had told him, but it is also quite clear from that transcript that the magistrate had found that the vehicle was certainly not red and she had advised him to go and correct the matter which he had not done.  So there was certainly no element of unfairness.

11.As I have already observed, in the course of the trial before the learned magistrate at Eastern Magistrates’ Court, she had inspected the motorcycle and found that it was black.  I also asked for the motorcycle to be brought to court and that had caused a delay.  We had to have an adjournment for that to be done and I, having seen it, have come to the same conclusion.  It’s certainly black.  There is no question about it. 

12.Where the magistrate at Kwun Tong in 2002 had told him to go and put matters right and he had not done so, there cannot possibly be any sense of unfairness working against the defendant on this occasion.  He only has himself to blame for not putting matters right.  And whereas in 2002 there may have been a reasonable excuse which the offence provides for, based on what the salesman had told him then, there cannot possibly be any question of a reasonable excuse on this occasion where the magistrate at Kwun Tong had told him what the position was and what he should do but, he did not do what she had told him.

13.Accordingly, the Magistrate on this occasion was correct to have found the summons proved and this appeal must therefore stand dismissed.

14.I should observe that the defendant has now put matters right and so there will not be the risk of anything going wrong in the future.

Appellant, in person, present

Mr Gavin Shiu, of the Department of Justice, for the Respondent

Miss Mary Sin, of the Department of Justice, for the Respondent on 16 September 2005