HKSAR v. Lau Chester

HCMA 170/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 170 OF 2011

(ON APPEAL FROM TWS 9879 OF 2011)

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J U D G M E N T

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1.There is no appearance of the appellant in this case.  I have a discretion whether to dismiss his appeal or whether to adjourn it.  I have decided, in the circumstances of this case, to dismiss the appeal, and I will give some very brief reasons why.

2.The appeal is against a conviction for failing to give particulars of the driver of a vehicle, contrary to section 63 of the Road Traffic Ordinance, Cap. 374.  The fine was one of $2,000.

3.I am satisfied that proper notice was given of this hearing date.  The file shows that there was correspondence at a given address between the court and the appellant, and that a phone call was made confirming that address in July of this year.

4.No reason is presented for his non-appearance.

5.Looking at his grounds of appeal and all of the papers and the arguments he made before the magistrate below, I come to the view that - without hearing him, I acknowledge - that there is no merit to be ascertained in the appeal.

6.Basically, the points taken were that the prosecution had not established the commission of a road traffic offence. The answer to that is that they do not have to.  The obligation arises on receipt of the notice to give the relevant information. It is based on suspicion of a traffic offence, not upon proof of it.  There was ample ground for suspicion in this case because the digital camera had recorded a motor car going through a traffic light contrary to the signal given, and that motor car was registered to this appellant.

7.Therefore, his submission that no offence was proved provided him with no defence below, and it provides him with no relief here.

8.His second point was that he could establish a statutory defence demonstrating that he had used due diligence to find out the required information but had failed to ascertain who was the driver.  The choice of driver was between him and his wife.

9.The notice was sent within a week of the alleged incident, and the evidence in the Magistrates’ Court clearly demonstrated that he failed to take the obvious step of going to those who kept records of the movements of vehicles in and out of his residential premises. He acknowledged that a record was kept of such movements, and it was the obvious step to take.  It was a reasonable step to take.  The magistrate judged that by failing to take that obviously reasonable step, he failed to discharge the burden upon him of demonstrating due diligence.

10.I agree entirely with the magistrate.

11.The third area of complaint to be made was that the magistrate did not let him develop his case fully or fairly. There is a full transcript of the proceedings below.  They took a long time. There was a lot of argument, and the magistrate, it appears to me, demonstrated great allowance in allowing the defendant to explore any legitimate avenue of defence, and the only time he intervened was to restrain things that were not relevant.  There is nothing in the complaint.

12.Since I can see no merits in the grounds in the papers before me; since I judge that those grounds could not be improved upon by the attendance for argument of either the appellant or any lawyer on his behalf, I have chosen to exercise my discretion to dismiss the appeal rather than adjourn it. 

Ms Winnie Mok, Public Prosecutor of the Department of Justice, for the respondent

Appellant was not represented and did not appear