The Attorney General v. Peter Alfred Davies
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CACC000701/1972 IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 701 OF 1972
----------------- Coram: Huggins, J. Date of Judgment: 24 November 1972. ----------------- JUDGMENT ----------------- 1. This is an appeal by way of Case Stated from a decision of a magistrate dismissing an information under s.15 (I) (a) of the Road Traffic Ordinance. The facts found by the learned magistrate were-
There was no evidence of the presence or absence of any signs lifting any restriction in Harcourt Road. The Respondent submitted that upon this evidence he had no case to answer, and that submission was upheld. The questions posed for the opinion of this Court by the learned magistrate are:
2. The material part of s.15 (1) reads
A "restricted road" is defined by subsection (4):
Subsection (6) provides in part:
There was no direct evidence before the magistrate that the Commissioner of Transport had or had not made any order under subsection (6) and the first question for consideration is whether there was a burden upon the prosecution in a case brought under s.15 (l) (a) to prove that there was not in force in respect of the length of road concerned an order made under subsection (6) (c) (ii). Putting it in another way, was the presence of street Lamps not more than 200 yards apart prima facie evidence that the road was restricted? The Respondent but faintly argued that it was not and I think the argument is untenable. Although the ratio decidendi of Boyd-Gibbins v. Skinner 1951 1 All E.R. 1049 was that the erection of a sign indicating a speed limit was prima facie evidence that all necessary steps had been taken to prescribe that the road should be regarded as being in a built-up area, there was a dictum of Lord Goddard, C.J. which is relevant to the present case. The learned Chief Justice said at p.1052:
To see the relevance of this passage one must appreciate that under s.l of the Road Traffic Act 1934 a length of road was deemed to be "a road in a built-up area" if there were street lamps not more than 200 yards apart, "unless a direction that it shall be deemed not to be a road in a built-up area is in force under this section". What had been suggested was that someone should testify to the absence of a direction that a length of road lit by street lamps not more than 200 yards apart should be deemed not to be a road in a built-up area. As I understand the principle applied by Lord Goddard, C.J. it is that the absence of a direction was a "negative" and that if the defendant wished to set up that a direction had been made it was for him to prove it. It has been said that the Common Law made an exception to the maxim ei encumbit probation qui dicit, non qui negat in criminal cases for reasons of policy and justice. That may have been to state the exception too widely, for policy and justice do not justify the making of an exception in every criminal case. The uncertainty in the law which is said to exist arises from the fact that there is not always a consensus as to when policy and justice do justify making an exception. One class of case which it has been sought to identify as an instance of the proper application of the maxim in a criminal case is that in which the positive is peculiarly within the knowledge of the defendant, but there seems to be no reason in principle why that should be the only such class of case. The uncertainty has recently been recognised by enactment of s.94A of the Criminal Procedure Ordinance, sub-s. (2) of which is expressly stated to be declaratory and for the avoidance of doubt. I think it was on the basis that justice did not require an exception in the case before him that Lord Goddard said what he did in Boyd-Gibbins v. Skinner. For my part I find myself in agreement with him, but it is obvious that a stricter view may appeal to others and it was no doubt because of the possibility of differences of opinion in such cases that s.94A was enacted. I regard sub-para. (ii) of s.15 (4) (a) of the Road Traffic Ordinance as a qualification of sub-para. (i) and therefore as relating to a matter which it was not necessary for the prosecution to negative by evidence. 3. The Respondent further relied upon subsection (5). This reads
Paragraph (b) has no application in the present case and I think the contention was that by reason of para. (a) (i) it was impossible to establish that an alleged offence had been committed on a length of road which was a restricted road without first establishing the points at which that length of road began and ceased to be a restricted road: for that purpose it was essential to adduce evidence of the position of traffic signs erected in accordance with subsection (7). That might have been a valid argument if there were any possibility that the alleged offence might have been committed before the first or beyond the last of the lamps by means of which the system of lighting was furnished, but the finding of the learned magistrate was that on the stretch of road on which the alleged offence was said to have been committed there was a system of street lighting in which the distance between each light was no more than 135 feet: there was no question of an offence's having been committed before the first, or beyond the last, of the lamps. 4. Where, therefore, there are in Hong Kong street lamps not more than 200 yards apart I think that that is prima facie evidence that the length of road is "a restricted road". Part of the uncertainty which has arisen results from a failure to bear in mind that "a restricted road" is basically "a length of road ..." and that a length of road may extend for a great distance and may be differently untied at various parts of its length. 5. The main argument by the Respondent was that although a length of road might be "a restricted road", it was not to be presumed that the permitted speed limit thereon was 30 m.p.h.: unlike s.l of the English Road Traffic Act 1934 our Ordinance does not lay down what might be called a principal speed limit of 30 m.p.h., which can only be displaced by a direction of the local authority or its equivalent. As the learned magistrate said,
While I entirely agree that a restricted road may be subject to a speed limit greater or less than 30 m.p.h. I have come to the conclusion that prima facie there is a limit of 30 m.p.h. If the Legislature had not so intended, it would have been unnecessary to refer to a speed limit of 30 m.p.h. in s.15(1) (a); it would have been provided that it should be an offence to drive on a restricted road at a speed exceeding that specified in relation to that road by the Commissioner. Again the matter is put beyond doubt by s.94A of the Criminal Procedure Ordinance, for in my view s.15(6) (a) of the Road Traffic Ordinance provides a qualification which it is not necessary for the prosecution to negative and which must be proved by the Respondent if he seeks to avail himself of it. 6. Only if there were no principal speed limit would the further argument of the Respondent possibly have had some substance. He said that subsection (4) began with the words "subject to the provisions of this section" and that they must have referred inter alia to subsection (7). That subsection read in part:
The Respondent asks "How am I to know what the restriction is?" The answer is that he may reasonably assume that if he is on a restricted road the restriction is to 30 m.p.h. unless there are signs to the contrary. As I understand it, his contention amounts to this, that since by subsection (6) (c) (ii) the Commissioner may direct that any length of road shall be a restricted road, even though there is no street lighting at all, no offence of exceeding the specified speed limit can be committed unless the Commissioner has ensured the erection and maintenance of the signs required by subsection (7). I do not so interpret the statute. The basis of the argument is that the duty to erect and maintain signs has in Hong Kong been imposed by a subsection of s.15, whereas in England it was imposed by a section separate from that which defined a built-up area. However, the opening words of subsection (4) are "subject to the provisions of this section" and not "subject to compliance by the Commissioner with the provisions of this section". I do not think it is material that in England a penalty is provided for failure to erect and maintain signs, whereas in Hong Kong there is no such penalty provided and the only proceedings to which the Commissioner is liable for breach of this duty are applications for orders of mandamus. A failure by the Commissioner to comply with the requirements of subsection (7) might possibly be a relevant factor in mitigation of sentence, but it cannot have the effect of "de-restricting" what would otherwise be a restricted road. Whether there was a failure in the present case to comply with the requirements of subsection (7) is not, therefore, a question which I need to consider upon the present appeal. 7. The learned magistrate held that the absence of traffic signs on Harcourt Road indicating the existence of a speed limit was prima facie evidence that the road was not in fact restricted. In my view that was not correct: rather, as I have said, was the presence of street lamps at intervals of less than 200 yards prima facie evidence that it was restricted. My attention was drawn to a note of Mackereth v. Madge (1968) 112 Sol. J. 98 which appears in the Criminal Law Review, but not to the terms of s. 22 (3) of the English Road Traffic Act 1960, which appears to have no equivalent in the Hong Kong Ordinance, although I was twice assured by counsel for the Appellant that the law in Hong Kong was identical to that in England. The case is no Authority upon any issue arising in the present case. 8. The learned magistrate went on to say that even if he were wrong on this last point there was no evidence that the restriction was to a speed of 30 m.p.h. As I have said, I think the presence of the street lamps at intervals of less than 200 yards was, in the absence of traffic signs indicating a different speed limit, prima facie evidence that what I have called "the principal speed limit" applied. 9. The learned magistrate then said there was no evidence
The first half of this passage cannot be faulted. However, if there was no evidence of the existence of de-restriction signs it was not to be assumed that such signs did exist. Indeed, there could have been an order made de-restricting the road even though there were no signs indicating a de-restriction. Nevertheless the presence of street lamps at intervals of less than 200 yards was prima facie evidence that it was a restricted road. 10. The learned magistrate finally said:
Certainly traffic signs would have provided prima facie evidence of the stipulated speed and might have overridden the prima facie evidence provided by the street lamps, but an absence of traffic signs is not fatal to a prosecution under s.15 (1). 11. The answer to each of the questions put for the opinion of the Court is "No" and the appeal is accordingly allowed. Representation: Stevenson for Appellant Respondent in person |