HKSAR v. Kila Matala Mutakwe Christian

HCMA240/2010

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 240 OF 2010

(ON APPEAL FROM ESK 42 TO 51 OF 2009)

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Before : Deputy High Court Judge P. Li in Court

Date of Hearing : 19 May 2010

Date of Handing Down Judgment : 4 June 2010

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J U D G M E N T

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1.The appellant was tried for illegal parking.  There were all together 10 summonses which were consolidated in one trial.  He was convicted and fined a fixed penalty of $320, an additional penalty of $320 (“the double penalty”), and costs $800 for each summons.  The appellant has to pay a total of $14,400.  He appealed against the conviction and sentence.

2.The appellant was the owner of a motorcycle with registration number ME 6921.  His motorcycle was found parked illegally at the vicinity of North Street, Sands Street, Rock Hill Street, Catchick Street and Davis Street from 6 June to 24 September 2009.  Ten fixed penalty tickets were issued and he disputed the offences.

3.During the trial, the appellant admitted the prosecution case.  He however argued that due to construction work, three out of six parking spaces for motorcycles were cancelled in the vicinity of his home.  As a result, there were insufficient parking spaces.  He maintained that he had legitimate expectation that there should be sufficient parking spaces.  He alleged that the issue of fixed penalty tickets to him was discriminatory, oppressive and against human right.  He also complained about the attitude of police officers. 

Appeal against conviction

4.Legitimate expectation is a civil law concept[1], it is not applicable in criminal proceedings.  Having said so, I agree with the Deputy Special Magistrate that the Commissioner of Transport has no duty to provide sufficient parking spaces for every motorcyclist in Hong Kong.  The appellant’s argument must fail.

5.There was no evidence that the police officers or traffic wardens had picked on the appellant when issuing fixed penalty tickets.  Nor was there any evidence that the cancellation of parking spaces was done with ulterior motive.  The allegation of discriminatory and oppressive prosecution must fail.

6.The appellant alleged that there was infringement of his right under the Basic Law to use public facilities.  I agree with the Deputy Special Magistrate that the decision of the Commissioner of Transport to cancel some parking spaces was to facilitate roadwork.  It might have caused inconvenience to someone but did not amount to infringement of any of the appellant’s rights.

7.The appellant in his written submission dated 17 May 2010 complained that the officers failed to exercise their discretion under s. 12, Cap. 237.  That section only provides for statutory defence set out in schedules 1 and 2.  The appellant was not within any of the statutory defence.  There is no substance in this ground.

8.I have carefully read the written submission by the appellant dated 17 May 2010.  He repeated the arguments during the trial.  None of them constitute a valid defence for illegal parking.  I dismissed his appeal against conviction in relation to each summons.

Appeal against sentence

9.In his written submission, the appellant stated that he is a single father with a 3-year-old daughter.  He worked as a disc jockey earning about $6,000 per month.  He invited this court to consider waiving the fine or allowing him payment by installments.

10.In passing sentence, the Deputy Special Magistrate had considered the financial situation of the appellant and the totality principle.  She was correct in ordering double penalty of $640 for each summons given that the defence was frivolous.  This was in accordance with s. 20(3), Cap. 237.  However, I have reservation as to the order for costs of $800 for each summons.

11.There were all together 10 summonses but they were consolidated in one trial.  The arguments against each summons were identical. The trial was not lengthened because of the 10 summonses.  The appellant rightly agreed the prosecution case from the onset.  This saved time for calling witnesses.  The trial was split in two days but the total time spent was about 3 hours.

12.According to s. 20B(1), a defendant, who wishes to terminate the proceedings, has to pay double penalty and costs of $500 for each summons. In my view, the appellant’s position should not be better than that defendant.

13.Having considered the circumstances above, I order that the appellant should pay costs of $600 in addition to the double penalty for each summons.  For the 10 summonses, the appellant has to pay a total fine of $12,400.

14.According to the court record, the appellant was allowed to pay the original fine by 25 June 2010.  I allowed the appellant to pay the $12,400 in 5 equal installments.  The first installment of $2,480 should be paid on or before 25 June 2010.  The subsequent installments should be paid on or before the 25^th day of each month until 25 October 2010.  Failure to pay any installment would render the remaining balance immediately payable.

15.I also order that in case the appellant fails to pay the sum adjudged above in five months on or before 27 October 2010, the Commissioner of Transport should act in accordance with s. 22(2)(b), Cap. 237 which includes not to renew his driving licence and not to transfer ownership or license any motor vehicle of which the appellant was the owner.

16.I allow the appeal against sentence to the extent as stipulated above in paragraphs 13, 14 and 15.

Mr Martin Hui, SPP of the Department of Justice, for the Respondent

The Appellant in person, present

[1]    The Queen v Soo Fat Ho, HCMA982/1991, page 6.