Read the full judgment text of HCMA 000521/2008 on BabelCite. This High Court CFI judgment was delivered on 29 January 2009 before Ma CJHC, Stuart-Moore VP, Stock JA.
Criminal law – Road Traffic Ordinance (Cap 374) s.63 – constitutional challenge to requirement that registered owner of a motor vehicle disclose identity of driver on demand – red light camera offence of failing to comply with traffic signals – charge under sections 63(1)(a) and 63(6)(a) – whether s.63 engages and breaches the right to silence and privilege against self-incrimination under the Hong Kong Bill of Rights (Cap 383) Articles 10 and 11(2)(g) – Article 11(2)(g) not engaged because no charge had been laid at the time of demand – Article 10 right to a fair trial engaged as right to silence is a facet of fair trial – right to silence not absolute but capable of derogation – proportionality test – legitimate aim of regulating motor vehicles and ensuring road safety, supported by legislative history of the 1947, 1957, 1973, 1980 and 1982 amendments – limited nature of inquiry restricted to a single question as to identity of driver – safeguards including section 64 prima facie evidence rule, section 63(5) lack-of-knowledge defence, prosecutorial burden of proof, and power of court to exclude oppressive evidence – section 63(7) requires court to have regard to facts of underlying traffic offence – custodial penalty of 6 months' imprisonment and $10,000 fine available, unlike UK legislation in Brown v Stott – distinction from UK does not affect constitutionality – alternative reverse-onus provisions would also make inroads into established rights and are not less intrusive – provisions directed at class of persons who have subscribed to a regulatory regime for motor vehicles – held section 63 is constitutionally justified and does not infringe right to fair trial in the round – whether magistrate had jurisdiction to deal with constitutional challenge in criminal proceedings – following Boddington v British Transport Police, defendant not precluded from challenging the validity of offence-creating provision as part of his defence – whether magistrate ought to have stated a case under s.105 of the Magistrates Ordinance (Cap 227) rather than dismissing the summons – following Secretary for Justice v Yau Yuk-lung, magistrate should have acceded to application to state a case and adjourned – whether magistrate bound by Attorney General v Tsang Wai Keung (1996) 7 HKPLR 163 concerning identically-worded s.62A of the Cross-Harbour Tunnel Ordinance (Cap 203) – held High Court decision binding unless overturned or per incuriam – magistrate erred in departing from Tsang Wai Keung – role of amicus curiae in public law proceedings of constitutional significance – appeal allowed – order of magistrate dismissing charge set aside – case remitted to another magistrate for trial de novo.
Legal issues: Magistrate's jurisdiction to entertain constitutional challenge in criminal proceedings · Whether the Magistrate ought to have dismissed the summons or stated a case · Whether the Magistrate was bound to follow Attorney General v Tsang Wai Keung · Whether section 63 of the RTO affects the right to silence and a fair trial · Whether section 63 of the RTO is a proportionate derogation from the right to silence
Outcome: Appeal unanimously allowed; the order of the magistrate dismissing the charge was set aside and the case was remitted to another magistrate for trial de novo in accordance with the law as stated.
Cited by 7 cases · Cites 1 case