HKSAR v. Cherednychok, Viktor

HCMA 670/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 670 OF 2014

(ON APPEAL FROM TMS 14322 OF 2014)

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REASONS FOR JUDGMENT
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1.The appellant appeared in court after his case was called and having considered the matter further the appellant sought to abandon his appeal against conviction at the hearing of his appeal. Section 117 of the Magistrates Ordinance Cap. 227 which governs the abandonment of appeals, does not permit the appellant to abandon his appeal in the present situation. As is stated in HKSAR v CHENG CHI WAH HCMA 1255/2004 it is necessary for the court upon his abandonment to dismiss the appeal and this I so did at the hearing.

2.As a matter of background, the appellant pleaded guilty by letter before the special magistrate[1] to an offence of driving his motorcycle without fixing a “P” plate at the rear of the motorcycle whilst being a holder of a probationary driving licence[2]. 

3.The appellant brought to the attention of the special magistrate in his letter that the “P” sign was previously displayed at the right saddle bag but was not displayed on the day of the offence as the bag was damaged.  The “P” sign had however been fixed on the motorcycle the following day. 

4.The special magistrate took into account the appellant’s unequivocal admission of guilt and found that the statement in the appellant’s letter did not constitute a defence to the charge. 

5.The special magistrate fined the appellant HK$450. 

6.The appellant appealed against his conviction. He complained that his punishment was too severe because in addition to the fine imposed, his probationary licence was consequentially cancelled in accordance to regulation 12(I).  He was aggrieved that he would have to take another driving test again and endure another year of a probation licence for what he considered was a very minor offence. 

7.He alleged that before he pleaded guilty by letter to the offence he had asked a police officer whom he is unable to identify what the consequences of a plea of guilty to the offence would be.  The police officer informed him it would be a fine.  No mention was made of the cancellation of his probationary licence.  The appellant said had he known it would have resulted in the cancellation of his probationary licence and that he would have to re-sit his test he would not have entered a plea of guilty.  

8.The appellant was seeking to reverse his plea of guilty to not guilty on the basis of misrepresentation by a police officer and his own misunderstanding of the law. He sought for his unequivocal guilty plea to be declared a nullity in order for him to rely on a defence at his trial that he had a reasonable excuse for not displaying the “P” plate.

9.At the hearing of this appeal he confirmed at the outset what he stated in his letter to the special magistrate was correct.  That is, that he was driving without the rear “P” plate fixed to the motorcycle and that his reason for not displaying the rear “P” plate was that it was knocked off by someone at a parking place and the following day the “P” plate had been replaced to its position.

10.Mr Daryanani, Senior Public Prosecutor for the respondent submitted that even if the appellant’s guilty plea should be treated as a nullity (which he did not concede), there was no defence to the charge under Regulation 12(K) as the offence was one of strict liability and a defence of reasonable excuse is not open to the appellant as stated in regulation 46(2).

11.Regulation 46 states : -

“(1) Any person who without reasonable excuse contravenes any of the provisions of, or any requirement under, regulation 9(2A) and (7), 12DA(4), 12I(1A), 12L(1E), 13(9), 18(1) or (1A), 20(3), 28(2), 41(1), 42(2) or (5) or 44(2) commits an offence and is liable to a fine of $2000. (L.N. 279 of 1988; L.N. 183 of 1997; L.N. 49 of 2007; 23 of 2008 s. 48)

(2)  Any person who contravenes any of the provisions of, or any requirement under, regulation 9(5), 12K(1) or(2), 17(4), 19, 27, 30 or 44(3) commits an offence and is liable in the case of a first conviction to a fine of $2000 and to imprisonment for 3 months and in the case of a second or subsequent conviction to a fine of $5000 and to imprisonment for 6 months. (49 of 2000 s. 7).”

12.Upon a reading of regulation 46(2) I agreed with Mr Daryanani and am of the view that regulation 12(K)(1) does not afford the appellant a reasonable excuse defence to the charge. 

13.At the hearing having considered the matter further, the appellant applied to abandon his appeal. 

14.The appellant was convicted of the offence on his own plea of guilty.  The appellant admitted before me that he had driven the motorcycle without displaying the rear “P” plate. 

15.I was satisfied that the appellant’s admission was a confirmation of his unequivocal plea of guilty before the special magistrate.  I dismissed his appeal upon his application to abandon to the present appeal. 

Mr Prakash L Daryanani, SPP, of the Department of Justice, for the respondent

The appellant appeared in person