The Queen v. Put Man Cheung

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 302 OF 1987

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BETWEEN

Coram: Hon. Garcia J. in Court

Date of hearing: 14th May 1987

Date of delivery of judgment: 14th May 1987

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J U D G M E N T

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1. The appellant was summonsed for three offences on the 1st October 1986, the first, driving a taxi on the 12th July 1986 at Nam Cheong Street near Hoi Tan Street carelessly, the second, in relation to the driving of the said taxi, of failing to comply, with an indication given by a red traffic light signal and the third, whilst driving the taxi at Hoi Tan Street near House No. 172, he refused to obey the direction of a police officer in uniform, P.C. 311, who was for the time being engaged in the regulation of traffic on the road, contrary to section 61 of the Road Traffic Ordinance.

The evidence is quite straight forward. PC 311 says that on the day in question at about 5:45 p.m. he was standing outside 172 Hoi Tan Street when he saw the subject taxi coming from Nam Cheong Street, and then turn into Hoi Tan Street. At that time there was a woman who was leading a child with her right hand on the pedestrian crossing in Hoi Tan Street and the pedestrian light was green. When the taxi was about 6’ to 7’ away from them, it just went ahead and she and the child had to walk hastily towards the right in order to avoid the taxi. The taxi passed within 2' to 3' from her back whilst she and the child was still on the pedestrian crossing.

It has been submitted on his behalf that the only offence which he committed at that time was that of failing to accord precedence to pedestrians at a pedestrian crossing. I do not agree. From the evidence the pedestrians were inconvenienced, and the appellant did not at that time give any consideration to their use of the road. He could very well have been summonsed for an additional offence of failing to accord precedence to a pedestrian at a pedestrian crossing, but he was not. The offence of careless driving was in my view clearly made out. The appellant's evidence with regard to this matter was that he had no recollection whatsoever of this, although he denies that at 5:45 p.m. on that particular day he did not make any left turn on that road. He said he had not noticed a police constable giving him a signal to stop and he was not called by the police until several months later. He also said that he had not crossed on a red light. The question of the identity of the driver of the taxi CC 365 which was involved in this incident is not now disputed, although in the court below the main question to which the magistrate was directed was in relation to the identity of the driver, and of the taxi which had been involved in these offences.

The second summons i.e. NKS 52361 relates to that of failing to comply with a red traffic light signal. There is ample evidence from the police constable to the effect that after passing him, the appellant drove from Hoi Tan Street towards Pei Ho Street going across the red light signal without stopping at all. The appellant was further summonsed for refusing to obey the direction of a police officer in uniform “who was for the time being engaged in the regulation of traffic on the road”.

With regard to the latter summons, the evidence given by the police constable was that he was in uniform on beat duty that day, and after having witnessed the incident on the pedestrian crossing, he stepped out onto the road and gave the appellant a signal to stop, but the taxi did not do so and instead went across the traffic light which was the subject of the second summons.

For the appellant, Mr. Lau submits that the police constable was not, on that occasion, engaged in the regulation of traffic in accordance with section 61 of the Road Traffic Ordinance. He contrasts this section with section 60 of the same Ordinance where it is provided that "a person driving a motor vehicle on a road shall stop the same on being required by a police officer in uniform or traffic warden in uniform", whilst section 61 states : "Where a police officer in uniform or a traffic warden in uniform is for the time being engaged in the regulation of traffic on the road any person driving any vehicle and any pedestrian who neglects or refuses to obey any direction of the police officer or traffic warden commits an offence and is liable to a fine of $2,000." There is indeed a clear distinction between a police officer simpliciter and a police officer who is engaged in the regulation of traffic on the road. In my view, there was no evidence to support an offence under section 61 of the Ordinance whereas it was possible for the appellant to have been summonsed under section 60 of the said Ordinance. It cannot be said that just because P.C. 311 was in the process of giving a signal and had given a signal to the appellant to stop, he was then engaged in the regulation of traffic on that particular road at that time. In my view, the words in section 61 have a restricted meaning, that is, that the words “a police officer in uniform or a traffic warden in uniform for the time being engaged in the regulation of traffic on the road must be one whose duty it is to control traffic on a particular road at a particular time, and is employed to do so. Accordingly in relation to this summons, i.e. No. 52362, the appeal against conviction is allowed and the fine, if paid, is to be returned to the appellant. The appeals against conviction on the other two summonses, that is one for careless driving and for failing to comply with the red light signal are dismissed.

Mr. W. Leung for Crown

Mr. A. Lau (M/s. K.Y. Woo & Co.) for appellant