HKSAR v. Man Kin-hung

HCMA 243/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 243 OF 2013

(ON APPEAL FROM STV 235 OF 2012)

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BETWEEN

REASONS FOR JUDGMENT

1.The appellant was convicted after trial before Deputy Special Magistrate Miss Frances Leung (the magistrate) on one count of speeding[1].  He was fined $1,800.  He appealed his conviction.  After the hearing, I dismissed the appeal for reasons which I now give in writing.

2.The appellant was charged with driving on Tuen Mun Road (southbound) near CH 64.7B (Ting Kau Bridge) on 26 August 2012 at 8:23 pm at a speed of 66 km/h, which exceeded the speed limit of 50 km/h in force on that road.

3.At trial, the appellant admitted that he was the driver of the private car involved in the case.  He also conceded that the speed limit on the relevant section of the road was 50 km/h and that at the material time his speed was 70 km/h (the detected speed).

4.The appellant’s ground of defence was that the original speed limit on that section of the road was 70 km/h, and that the traffic signs and road markings did not clearly show that the speed limit had been varied to 50 km/h, which caused him to believe the speed limit was still 70 km/h.  

5.The magistrate summarized the appellant’s testimony as follows:

“10. The appellant testified that he was driving his private car KS8100 on the left third lane along Tuen Mun Road at approximately 70km/h. When he almost reached CH 64.1, he noticed that both sides of the road had become road works areas, within which there were works vehicles, machinery and sundry items. He focused his vision and attention on the traffic conditions ahead. The appellant said he had seen a speed limit sign of 70 km/h on an earlier section of the road but had never seen any other signs displaying a variation of speed limit or any other speed limit signs or road markings of 50 km/h, and therefore he continued to drive at approximately 70 km/h on that section of the road, which he believed did not exceed the speed limit. The appellant said there were water-filled barriers on both sides of the road, and the reminder signs of varied speed limit as well as the 50 km/h speed limit signs inside the works area could not be regarded as being placed on the road sides.

11. Under cross-examination, the appellant said there were heavy vehicles moving relatively slowly on the left first lane, and therefore he was unable to see the signs to the left of that lane from where he was on the left third lane.  Moreover, the 50 km/h speed limit signs on the right were blocked by the works vehicles and machinery inside the works area, and as he had to concentrate on the traffic conditions ahead, he did not deliberately look for any signs in the works area.  Regarding 50 km/h road markings, the appellant said he did notice a large circle on the lane surface, but as it was at night and the circle was too far away, he could not clearly see the number inside the circle.  When he approached the circle, he could not clearly see the number inside by reason of the high speed of his car.”

6.Having carefully considered all the evidence, the magistrate took the view that the speed limit reminder signs and the speed limit signs placed on both sides of the road, as well as the 50 km/h road markings on the lanes, were all in accordance with the Code of Practice of the Highways Department.  The magistrate also took the view that, although road works were underway on that section of the road, such works had already stopped when the appellant was driving past that location, and hence there would not have been any moving works vehicles or machinery that happened to block the view of the speed limit signs or reminder signs on both sides of the road.  As for the proposition that all the speed limit signs on the left were blocked by vehicles on the left first lane, the magistrate considered that such a scenario was too coincidental.  The magistrate found the appellant’s explanation far-fetched and incredible.  Even if the appellant was telling the truth, the magistrate was of the view that it was just that the appellant failed to observe the road signs carefully and prudently.

7.The magistrate concluded as follows:

“36. This offence is one of strict liability, which only requires proof that the appellant was driving in excess of the speed limit; the prosecution does not have to prove that the appellant knowingly committed the offence. On the other hand, the appellant cannot be convicted of the offence if he can establish, on a balance of probabilities, that he held a reasonable and honest albeit mistaken belief.

37. I do not accept the evidence of the appellant.  Even if his testimony is true, I do not accept it as reasonable or as an excuse under the common law, because even if the appellant held a mistaken belief of the speed limit, such belief was by no means reasonable.”

8.The appellant appealed on the ground that the magistrate had overlooked some evidence favourable to him in reaching the verdict, as a result of which the magistrate erroneously found that the reminder signs displaying the varied speed limit were clear and that they could have been reasonably noticed by him.   As I indicated to both parties at the hearing, there is in fact no necessary connection between the magistrate’s findings and the conviction or otherwise of the appellant.  It is because the defence on which the appellant relied has no legal basis. 

The relevant law

9.Section 41(1)(a) of the Road Traffic Ordinance (“the Ordinance”) provides that:

“(1) A person who drives a vehicle on a road at a speed exceeding -

(a) 50 km an hour or such other speed limit as may be in force on that road under section 40; …

commits an offence and is liable to a fine of $4,000.”

10.Section 40 of the Ordinance provides that:

“(1) Subject to subsections (2), (5) and (5A), the maximum speed at which a vehicle may be driven on any road shall be 50 km an hour.

(2) The Commissioner [for Transport] may by notice in the Gazette -

(a) vary the speed limit specified in subsection (1) for any road specified in the notice, either generally or during the periods specified in the notice; …

(3) Where the speed limit on any road is varied under subsection (2)(a) the Commissioner shall cause traffic signs to be so erected, replaced, removed or altered as to ensure that adequate guidance is given to drivers of motor vehicles as to what speed limit is currently to be observed on that road.”

11.As far as the present case is concerned, the Commissioner for Transport had by notice temporarily varied the speed limit on that section of the road to 50 km/h from 00:01 hours on 29 April 2012 to 18 December 2014 in order to facilitate road works.  By virtue of the Ordinance, once the Commissioner for Transport publishes such a notice, the varied speed limit will take effect during the period specified in the notice.  Apart from that, the Ordinance does not stipulate other conditions for the varied speed limit to take effect, such as the need to place speed limit signs.

12.Under section 40(3), the Commissioner for Transport is responsible for causing traffic signs to be so erected, replaced, removed or altered as to ensure that adequate guidance is given to drivers of motor vehicles as to what speed limit is currently to be observed on the road in question.  However, the performance of this administrative responsibility is not a prerequisite for the speed limit to be effective at law.

13.As the magistrate pointed out, what section 41 stipulates is a strict liability offence to which no statutory defence has been provided.

14.The magistrate considered that the appellant would not be guilty if he was able to establish, on a balance of probabilities, that he held a reasonable and honest albeit mistaken belief at the material time[2].  In mentioning the reasonable and honest albeit mistaken belief, the magistrate was, I believe, referring to the appellant’s alleged belief that he mistakenly thought that the speed limit on the relevant section of the road was still 70 km/h.

15.In my view, however, even if the appellant was able to show that such misunderstanding existed, it could not constitute any common law defence in favour of the appellant[3].  This is because if the speed limit of 50 km/h had come into effect as law, any such misunderstanding on the part of the appellant can only be considered a misunderstanding of the law, which could not constitute a valid defence.

16.For example, if the appellant alleged that the speedometer of his car was out of order, thereby causing him to believe mistakenly that he was not driving in excess of the speed limit, then this might constitute the common law defence of “reasonable and honest but mistaken belief”.

17.The appellant had never raised the issue of whether the Commissioner for Transport had effectively varied the speed limit on the relevant section of the road.  What he disputed was whether the Commissioner had discharged his responsibility by properly placing reminder signs for the newly enforced speed limit.  However, it is only an administrative responsibility vested in the Commissioner by virtue of the Ordinance, and any failure to discharge the duty does not constitute any defence for the appellant who committed an offence under section 41.

18.It follows that even if the appellant was able to prove that the speed limit signs had not been properly placed or that on the day of the offence he really did not notice any variation of speed limit at all, it would not constitute a valid defence.  That said, if the magistrate accepted these arguments, they might become mitigating factors for sentencing purposes.

19.I note that in the case of Chan Chiu Kwok[4], Deputy High Court Judge E Toh (as she then was) quashed the conviction of the defendant for the offence of speeding because he was misled by the speed limit sign.  However, Judge Toh did not analyze how this could constitute a valid defence to the offence under section 41.  I do not accept that being misled by traffic signs is a valid defence because, put at its highest, this can, on the above analysis, only be regarded as maladministration on the part of the Commissioner for Transport which caused the driver to misunderstand the law. It cannot per se constitute a ground of acquittal.   

20.In my view, even if the appellant had been misled by the traffic signs, it would not have been a valid defence, let alone when the appellant was merely saying that he did not notice the speed limit because the traffic signs were not properly placed.

21.The purpose of sections 40 and 41 is to regulate drivers’ driving speeds on different roads so as to avoid traffic accidents.  There are tens of thousands of vehicles using the roads in Hong Kong every day.  If every driver who is charged with speeding is allowed to challenge whether speed limit signs are properly placed and raise a defence of not noticing the speed limit signs, it will be difficult to enforce the rules and regulations on road speed limits.

22.The appellant has not made out his defence.  The appeal is dismissed.

Mr Frederick Chung, Senior Government Counsel of the Department of Justice, for the respondent (the HKSAR)

The appellant in person, present

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. Edmund Cham, Solicitor