Kong Hoi-lau v. The Queen
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CACC000813/1976 IN THE HIGH COURT OF JUSTICE (APPELLATE JURISDICTION) CRIMINAL APPEAL NO. 813 OF 1976 -----------------
----------------- Coram: Li, J. Date of Judgment: 25th October, 1976 ----------------- JUDGMENT ----------------- 1. The appellant is convicted of two traffic offences. The first is failure to conform to the indication given by a red signal shown by the traffic lights. The second offence is neglect of the direction of a police officer in uniform for the time being engaged in the regulation of traffic. 2. The facts are comparatively simple. At the junction of Wo Fung Street and Queen's Road West there was a set of traffic lights for the regulation of traffic on the 25th December 1975 at about 1.15 a.m. Two police constables were present at this junction. One stood near the traffic light, the other stood some distance beyond the traffic light. A vehicle was seen crossing the lights when it was red against that flow of traffic. This was noticed by the police officer who stood near the traffic lights. He immediately signalled to the other police constable who stood some distance beyond the traffic lights and the other constable, when he saw the same vehicle approaching signalled to the driver of that vehicle to stop. The driver slowed down but drove away. However, the registration number of the vehicle was taken down as AU4872. That was what happened in December 1975. A notice in the form of 292 was not served until the 15th of March, 1976, some 2 ½ months later. It is the usual form quite familiar to some motorists. It is a form asking the owner of the vehicle to disclose who the driver was on a certain occasion. The appellant, when he was served with this notice, put down his own name KONG Hoi-lau and his own address with his driving licence number as the driver on the occasion. The form reads this way: "In reply to your letter dated the 15th of March, 1976, I have to inform you that the driver of motor vehicle being registration AU4872 at 1.15 a.m. on the 25th of December at Queen's Road West near the Wo Fung Street was ..." and then he filled in his name and signed it. However, at the time when he signed this notice, he told the constable who served him with the notice in the following terms: he said, "Although I was the driver, but no one drove the vehicle at night". There was a further conversation. In the course of cross-examination the constable serving the notice admitted that the appellant said: "You asked me to produce the driver, nevertheless, and I said no one drove at night, how could I do it?" These two sentences were told to the constable and the constable admitted that he heard it when he served this notice. 3. The defence at the trial was one of a mistaken identity and an alibi. The defendant said that he never used his vehicle at night in any event after 8 p.m. Learned counsel for the appellant who in the court below was not acting for him in the capacity as his counsel but as a witness, gave evidence that since 1975 he (counsel) had been using the appellant's car but counsel knew his habit that he would cease work as from 7.30 in the evening. The appellant's brother also gave evidence that the appellant was in bed by about 11.30 on the 24th of December, 1975, therefore he couldn't possibly be the person on the road. 4. The learned magistrate accepted the contents in Form 292, the form I have just read out as identifying the driver and rejected what the appellant told the police constable on the 15th of March as untrue. One of the reasons the learned magistrate came to the conclusion was that that night was Christmas Eve or Christmas morning and it was a particularly busy hour and the appellant was the owner of the car as well. He did not accept the proposition that the appellant had supplied his own name as the driver of the public car at that date, time and place stated in the form Po1.292 for any reason other than that he was the person actually driving the public car at the said date, time and place. In his finding on facts he said, "Indeed, there was no denial at all in the appellant's evidence apart from his cross-examination of P.W.l that he was driving the public car at the said date, time and place." And he further said, "I found as a fact that the appellant gave his own name as the driver sought for by the police in Part 'B' of Form 292 and signed his name thereunder. I was satisfied that Section 30 of the Road Traffic Ordinance applied and the contrary, that is to say, that the appellant was not the driver, had not been proved on the balance of probabilities." 5. The appellant now appealed against this conviction on a variety of grounds which have been filed. There is no necessity to refer to all of them, but it is sufficient to say that one of the grounds of appeal is that the learned magistrate has misdirected himself in treating the provision of Section 30 of the Road Traffic Ordinance as creating a presumption and therefore casts the burden on the appellant to disprove or rebut that presumption. Section 30 of the Road Traffic Ordinance provides that:-
The provisions of this section does not create a presumption of any nature. It merely says that the court may act on such evidence as prima facie evidence which can be rebutted and in any event I would have thought that the verbal conversation between the appellant and the police constable who served the notice at the time of filling it would have in some measure, as learned counsel for the appellant said, neutralized what is contained in the particulars in that form. It is also unfortunate that it seemed that the form 292 is rather one-sided. (A) It compells the person who is served with such a notice to fill it in the particulars under a penalty. If he refuses to fill it in, he commits an offence. There is no column in this form for any explanation as the explanation that was verbally given by the appellant at the time when he was served. There was certainly, in Section 30, no presumption for the appellant to rebut. In the circumstances, particularly when the learned magistrate has misread, with due respect, the provisions of Section 30 and based his decision on the fact that it created a presumption which was not rebutted by the appellant, I feel that the conviction is unsafe. Accordingly, the appeal must be allowed and the conviction is quashed and the sentence is set aside. Representation: |
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