John Henry Fleming v. The Queen
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CACC000650/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 650 OF 1972 -----------------
----------------- Coram: Leonard J. Date of Judgment: 24 November 1972 ----------------- JUDGMENT ----------------- 1. Since the learned magistrate has by the supplementary statement of findings provided at my request, disposed of the other grounds of appeal the sole ground remaining for discussion is that "that the road is an unrestricted road" or to put it another way (since the appellant is unrepresented) "that the Crown have failed to prove that on May 6th 1972 the length of road at Harcourt Road outside the Heliport was a length of road to which a speed limit of 30 miles per hour applied." 2. The question arises because of the definition of "restricted road" in Section 15(4)(a)(i) of the Road Traffic Ordinance Cap. 220 and because the only evidence on the point adduced before the learned magistrate was to the effect that on the length of road in question the lamp posts were less than 200 yards apart. A similar question fell to be decided by my brother Huggins in Criminal Appeal No. 701 of 1972 in which he had the advantage of the assistance of counsel denied to me. I have had the advantage of a discussion on the point with him and am quite satisfied that the Crown have established a prima facie case, which has not been rebutted, that the length of road in question is one to which a speed limit of 30 miles per hour applies. 3. The term "restricted road" is defined in Section 15(4) of the Road Traffic Ordinance :
Subsection (6) permits the Commissioner from time to time by order (inter alia) to
The question to be decided then is whether it is incumbent on the Crown to prove the absence of an order directing that the length of road in question shall not be a restricted road. Prior to the enactment of Section 94A Subsection 2 of the Criminal Procedure Ordinance it might have been incumbent on the prosecution to prove the absence of such an order, but that section declares "for the avoidance of doubt" that in criminal proceedings it is not necessary for the prosecution to negative by evidence any matter to which the Subsection applies. The Subsection applies inter alia to any "exception, exemption, qualification or other similar matter". An order under Section 15 Subsection 6(c)(ii) clearly comes within this phrase as does an order "increasing or reducing the rate of speed fixed by Section 15(1)" under Section 6(a). 4. Therefore once it is established that the length of road in question is furnished with street lighting and that the lamp posts are not more than 200 yards apart the Crown have established a prima facie case that that length of road is a restricted road to which a speed limit of 30 miles per hour applies. No evidence to the contrary having been advanced, this appeal must be dismissed.
Representation: Appellant in person. Mrs. M.H. Jackson-Lipkin, C.C. for Respondent. |