Hall Sau Ching v. The Attorney General
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 52 OF 1972 (On appeal from S.P.K.S. 47952/72) -----------------
----------------- Coram: Huggins, J. ----------------- JUDGMENT ----------------- 1. This case has caused me considerable anxiety. It is an appeal against a judgment of a magistrate in a claim under the Fixed Penalty (Traffic Contraventions) Ordinance. There was alleged to be a contravention of s.9(1) and due notice was served on the Appellant. She was the owner of the car. It appears to be quite clear that the vehicle was, at the time, being driven by someone acting under her authority and that she was not present. 2. The summons was returnable on 11th August and on that date the Appellant herself did not appear but the driver attended and sought to appear on her behalf. That I can only assume, because the record does not indicate who did appear either on behalf of the Complainant or the Respondent, but the case was adjourned “to enable defendant appear in person”. Again, on the adjourned hearing we do not know who appeared, but I am told that the driver again appeared and he tells me (he being before this Court in addition to the Appellant) that he had on that occasion a letter of authority but that it was not in acceptable form. Unfortunately it is not in the record before me, always assuming that such a letter existed. The case was, on that second occasion, adjourned “for letter of authority”. On the third occasion we do not know from the record who appeared, but the driver tells me that he then a proper letter of authority but that it was not acceptable to the magistrate and he tells me that the reason given by the magistrate was that a written letter of authority could only be accepted where the claim was admitted. I emphasise that I have only his word for this and, therefore, what I am about to say should not be regarded in any way as a criticism of the learned magistrate, but it must be understood that in civil proceedings it is permissible for a court to allow somebody to represent a party whether there is to be an admission of liability or a denial of liability. On this third occasion the learned magistrate records that he adjourned the case yet again for “personal appearance”. The record then ceases to be in chronological order but we find that on the adjourned hearing nobody was present on behalf of the Defendant and judgment was entered in accordance with s.19 of the Ordinance. Again I am told that the driver did come to the court on that day, but that he was late, having been held up in a traffic jam. This, of course, I do not have on oath but it does seem likely that the Appellant, having sought up to that point to contest the proceedings, would hardly have failed to appear on the adjourned hearing except involuntarily. 3. Within due time application was made for a review. On this fifth hearing the application was adjourned to yet another date, and on 27th September, for the first time, the Appellant appeared personally before the court. I am told that the driver was also present but he was not in fact heard. The proceedings began with an indication on behalf of the Attorney General that if the application was allowed application would be made for costs for each of the previous hearings and counsel went on to say that a doctor’s certificate which was produced by the Appellant to account for her absence did not cover any of the period in which she was due to appear in the court. The learned magistrate appears to have seen the error in this last statement, because be pointed out that it did cover the day on which judgment was in fact entered. It would have been hard indeed, if the story which I have been given about the letters of authority is even half true, that the Appellant should have had to pay costs for all the previous hearings and it is perhaps unfortunate that this threat was held out at the beginning of the proceedings. The Appellant proceeded to explain her absence and then the record shows that her application proceeded like this :
The learned magistrate, in my view with ample justification, took the view that if that was all that was going to be said upon the review there was no justification for allowing a review. That was no defence at all to proceedings under s.9(1), which is the section which prohibits parking where there are “No waiting” signs. What I am told upon this appeal is that the real defence which it was sought to put before the court was entirely different from that stated by the Appellant before the learned magistrate. It is said that the car boiled over and that the Appellant pulled up at the side of the road because he feared damage and that he went into a shop to get some water – or, to be more accurate, that he looked into a shop to see if he could get water from the shop; that he then turned round again and found the constable had already started to write a ticket. There was a conversation, which I do not think it is necessary to reproduce. The suggestion is that this was an emergency and that the parking in a “No Waiting” area was in a sense involuntary. 4. I am prepared to assume without deciding that it would be a defence under this particular section to break down in a “No Waiting” area or, as here, deliberately to pull into it because of an emergency. The difficulty is that not one word of this defence was ever put to this magistrate. What in effect I am being asked to do is to admit further evidence, and the rules for the admission of further evidence upon an appeal are well established. It must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial : the evidence must be such that, if given, it would probably have an important influence on the result of the case : the evidence must be such as is presumably to be believed or, in other words, it must be apparently credible, though it need not be uncontrovertible : see Ladd v. Marshall 1954 1 W.L.R. 1489, 1491. I have come to the conclusion, not without some hesitation, that the Appellant has not made out a case for further evidence. My hesitation is not because I think there is any doubt about whether she comes within the requirements, because clearly she does not, but because of the possibility that if the driver had been allowed to represent the Appellant and to state her defence in August he might conceivably have put up this story then. Equally, of course, it is possible that this is a story which has been fabricated for the purpose of the appeal. I make no comment one way or the other as to that. All I say is that the evidence could have been given in the court below and I am not satisfied that the Appellant was not given sufficient opportunity to indicate her true defence to the magistrate. There must be an end to proceedings and, in my view, this is not a case where I ought to order a retrial. 5. The appeal must be dismissed. 1st December 1972 |