HKSAR v. Ho Loy
Read the full judgment text of HCMA 280/2014 on BabelCite. This High Court CFI judgment was delivered on 20 April 2015.
1. On 11 April 2014, the appellant following a trial before Mr Andrew Mok, Deputy Special Magistrate (the Magistrate) was convicted of a single offence of failing to comply with a traffic sign, contrary to Regulations 50(2) and 61(2) of the Road Traffic (Traffic Control) Regulations, Cap 374G, and fined $500.
Cited by 3 cases · Cites 8 cases
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HCMA 280/2014 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MAGISTRACY APPEAL NO 280 OF 2014 (On appeal from TWS No 12847 of 2013) _______________________
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________________________ J U D G M E N T ________________________ Introduction 1.On 11 April 2014, the appellant following a trial before Mr Andrew Mok, Deputy Special Magistrate (the Magistrate) was convicted of a single offence of failing to comply with a traffic sign, contrary to Regulations 50(2) and 61(2) of the Road Traffic (Traffic Control) Regulations, Cap 374G, and fined $500. 2.Following the conviction, the appellant appealed to the Court of First Instance against the conviction and sentence but by letter dated 19 March 2015 abandoned her appeal against sentence. A magistracy appeal 3.It is well settled that a magistracy appeal is by way of rehearing and this requires the appellate court to reach its own independent decision as to whether it is satisfied beyond reasonable doubt of the guilt of the appellant on the record of the evidence given at trial supplemented by any further evidence it may admit. However, an appellate court in recognising that a magistrate has had the advantage of seeing and hearing the witnesses, will only differ from his or her factual findings or assessment of the credibility of a witness where there is no evidence to support it or it is plainly wrong. See HKSAR v Chou Shih Binh (2005) 8 HKCFAR 70; HKSAR v Ip Chin Kei [2012] 4 HKLRD 383; HKSAR v Gammon Construction Ltd, FACC No. 10 of 2014, 19 March 2015, unreported, at paragraph 7. The issues on appeal 4.This appeal is concerned with two principal issues. The first issue is whether the traffic sign in question is ambiguous, unclear or confusing. This will require initially dealing with the issue of nondisclosure of certain material in the possession of the Transport Department that indicated that the sign was confusing and misleading. This will then require considering whether expert evidence that was rejected at trial should be admitted in evidence on appeal. The question of whether the sign is itself ambiguous, unclear or confusing will be addressed by examining the sign in its statutory and regulatory context and by reference to the principle of legal certainty and the defences of reasonable excuse and of honest and reasonable belief. The second issue is whether a road user, including the appellant, is obliged in law to know the meaning of traffic signs. This will require an examination of the legal obligation on road users to know the laws and rules of the road and where appropriate by reference to any relevant statutory provisions under the Road Traffic Ordinance, Cap 374. 5.These issues will be addressed in the context of the offence provision and the circumstances of the case. The offence regulations 6.Section 11 of the Road Traffic Ordinance provides for the making of regulations and so far as material reads:
7.Section 15 provides for the penalties under the regulations and reads:
8.Regulation 50 (2) reads:
9.Regulation 61 (2) reads:
10.The relevant Figures and the captions in Schedule 1 of the Regulations are set out below. I have included Figure No 156 as it is relevant to the discussion in relation to Figure No 155 on the issue as to whether it is ambiguous, unclear or confusing.
Evidence at trial 11.The facts of the case are fairly straightforward. It was alleged that at about 10.12 am on 13 May 2013, the appellant contravened a traffic sign of the type Figure No 155 at Yu Tung Road near lamp post AC1509 on Lantau Island, without reasonable excuse, by continuing to ride her bicycle beyond the point of the sign which was prohibited. She was required beyond that point to dismount from her bicycle and push it. 12.The central issue at trial and on appeal was whether the sign conveyed this message. 13.It would appear that the way the two signs were to operate was that a cyclist entering an area where cycling was prohibited the Figure 155 sign was displayed, and as he was exiting the area, the Figure 156 sign was displayed. The purpose of these two signs was to inform the cyclist that cycling was prohibited in the area beyond the Figure 155 sign and that he was required to dismount from his bicycle and push it, and that on leaving the area the cyclist could resume cycling his bicycle beyond the Figure 156 sign. 14.The appellant did not deny that she cycled past the sign at the relevant time. Her case was that she was confused as to the meaning of the sign and that other road users were also confused by it. She also submitted that there was ample evidence that the government were aware of the widespread confusion about the sign, but failed to disclose this information to her as required by law. 15.The area that was controlled by the sign is in Tung Chung, North Lantau, just south of the Lantau District Headquarters and Lantau North Police Station. The sign is on the northeast bound cycling lane beside the Yu Tung Road northeast bound lane. Both pedestrians and cyclists often use the area. A pedestrian footpath and cycling track therefore run parallel with each other and are intersected by this area which includes a driveway for vehicular access to the rear of the police station. It is claimed that the driveway is rarely if at all used and I accept that to be the case. The controlled area is bordered by bollards on either side with a Figure 155 sign on entering the area and a Figure 156 sign on exiting the area. There is also a Figure 137 sign which notifies road users that the pathway is used as a “Footway and Cycleway”. The cycling track and the footpath continue beyond this area into a subway that is directed towards the MTR station. 16.The prosecution in support of its case called one witness. It was police sergeant 51981, Man King Wing. He testified that at the relevant time on 13 May 2013, the appellant was riding a bicycle at Yu Tung Road cycling track near lamp post AC1509 and that she did not dismount from her bicycle upon reaching the traffic sign as shown in Figure 155. 17.He further testified that at the material time the sign was not covered by leaves or otherwise obscured from the location at where the offence took place. 18.The defence in support of its case also called one witness, the appellant. It was not disputed at trial that the appellant is very familiar with the location. She works and resides on Lantau in Tung Chung and passed this location on almost a daily basis for the last five years. She cycles daily and is well acquainted with the location and its environs. She had a clear traffic record before this incident. She testified that she had cycled past the location many times and that she had all along been confused by the sign. She said she was honestly and reasonably confused by the sign. She said she did not dismount when she cycled past the sign because she believed it indicated the presence of a cycle path and she could keep moving. She produced photographs of the location to show that other cyclists had also failed to dismount having cycled past the sign. 19.The defence made application to call an expert witness, Mr Steven Coward, on the issue of whether the design of the sign was ambiguous, unclear or confusing. The Magistrate ruled that the proposed expert evidence was not admissible as it was neither relevant nor necessary. 20.The defence also made application for a site visit to observe the location which was refused by the Magistrate on the basis that it was not necessary as he was not satisfied that observing cyclists at the location would be relevant to the assessment by the court as the tribunal of fact on whether the appellant was honestly and reasonably confused by the sign at the material time. 21.Mr Azan Marwah, counsel for the appellant, argued that her state of confusion by the sign was due to (i) the road conditions; (ii) the actions of other cyclists; and (iii) the confusing nature of the sign itself in the context of other signs. He submitted that the sign was ambiguous, unclear and confusing to the ordinary and reasonable cyclist at the location in question and that the appellant was honestly and reasonably mistaken in her understanding of the meaning of the sign at the material time. 22.Mr Marwah relied on the defence of reasonable excuse as provided in the offence regulation and the defence of honest and reasonable belief on the authority of Kulemesin v HKSAR (2013) 16 HKCFAR 195 where Ribeiro PJ at paragraph 41 explained that in construing statutory offences which are silent or ambiguous as to the mental requirements regarding the circumstances accompanying the defendant’s acts or omissions, five alternative regimes were possible, of which the second alternative arises when the prosecution need not set out to prove mens rea, but if there is evidence capable of raising a reasonable doubt that the defendant may have acted or omitted to act in the honest and reasonable belief that the circumstances of his conduct were such that, if true, liability would not attach, he must be acquitted unless the prosecution proves beyond reasonable doubt the absence of such exculpatory belief or that there were no reasonable grounds for such belief. 23.It seems it was acknowledged by both the police sergeant and the appellant that the sign was not generally understood by members of the public. The defence argued that this was evidenced by the appellant and other cyclists disobeying the sign when the two police officers were clearly visible to them on the day in question. The defence sought to produce “copious photographic evidence” of other cyclists cycling past the signs at either end of the restricted area. In my view, this evidence was irrelevant and inadmissible for it is not known whether the cyclist in question understood the sign and chose to flout the law at the time. In any event, the issue before the court was whether the sign itself is confusing and whether the appellant had a reasonable excuse for disobeying the sign. It appears the defence wished to call Mr Coward and other cyclists who often cycled past the sign to testify that they too were confused by the meaning of the sign. The Magistrate rightly rejected the calling of this evidence. The grounds of appeal 24.There are nine grounds of appeal. The first two grounds complained that the Magistrate erred in refusing to admit evidence that other road users were confused by Figure 155 and the expert evidence of Mr Steven Coward. I agree with the Magistrate that the proposed evidence to show that other road users were confused by the sign was inadmissible. The fact that other cyclists had continued cycling beyond the sign could equally mean that they understood the sign but chose to ignore it. Even if they gave evidence that they were confused by the sign that was the ultimate issue for the court to determine. The opinion evidence that Mr Coward was to give was basically on the ultimate issue where he concluded that the sign and in the location in which it was situated was unclear, ambiguous and confusing to ordinary and reasonable cyclists. Notwithstanding his qualifications as an experienced cyclist and teacher of cycling, this issue was not within his expertise and not a matter warranting expert opinion. I have to acknowledge, however, that his expertise included the subject of the regulation of cyclists here and abroad, and in light of the material that was later disclosed his expert opinion on this subject would have been of assistance to the court. I will say more about this later in my judgment. 25.Grounds 3, 4 and 5 complained that the Magistrate erred in finding that the appellant “wilfully neglected” the traffic sign and failed to give sufficient consideration to the evidence that a reasonable person, including the appellant, honestly and reasonably would be confused by the sign. 26.The key issue is whether the sign was ambiguous, unclear or confusing. This was more specifically addressed in Grounds 6, 7 and 9. Ground 8 was a general complaint that the evidence did not support the conviction. The Magistrate’s decision 27.The Magistrate in his statement of findings noted that the case concerned the evidence of one witness against another. As for the police sergeant, he found his evidence was clear, direct and logical which he accepted as true. As for the appellant, he noted that she was a person with a clear record but he did not accept that she was honestly and reasonably confused by the sign at the material time. He pointed out that under cross examination she accepted that the sign was visible and that she was aware that it was always there even though she said she did not particularly look at the sign at the time. 28.The Magistrate found that the appellant knew the sign was there and what it looked like but chose not to find out what the sign meant. He considered that it was unreasonable for the appellant not to observe the sign because from the photograph the road marking clearly indicated that it was the end of the cycling lane and the sign was clearly of significance. 29.The Magistrate found that rather than being honestly and reasonably confused by the sign, the appellant had wilfully neglected the sign at the material time. 30.The Magistrate was not satisfied that the evidence adduced by the appellant could constitute evidence capable of raising a reasonable belief that the circumstances of her conduct were such that if true, liability would not attached to her. 31.After having considered all the evidence, the Magistrate found that appellant had, without reasonable excuse, failed to comply with the requirement indicated by the sign at the material time and he convicted her accordingly. 32.The Magistrate held on the central issues as follows:
Non-disclosure 33.I come to the issue of nondisclosure of certain material in the possession of the Transport Department that confirmed that the sign was ambiguous and confusing that arose during the course of the trial as well after it. The Magistrate on the information and material before him concluded that the nondisclosure that took place during the course of the trial did not warrant staying the proceedings. I am more concerned about the nondisclosure of material after trial which may have had a bearing on the decisions of the Magistrate in relation to the nondisclosure issue and the admitting into evidence the expert opinion of Mr Coward. 34.The prosecution has a positive duty to disclose unused material in its possession to the defence. The material which the prosecution are required to disclose is that what can be seen on a sensible appraisal by the prosecution: (a) to be relevant or possibly relevant to an issue in the case; (b) to raise or possibly raise a new issue whose existence is not apparent from the evidence that the prosecution proposed to use; (c) to hold a real (as opposed to fanciful) prospect of providing a lead on evidence which goes to (a) or (b). 35.The Court of Final Appeal in HKSAR v Lee Ming-tee and Securities and Futures Commission (2003) 6 HKCFAR 336 explained that the disclosure obligations of the prosecution to the defence extends to material or information in the possession or control of the prosecution which may undermine its case or advance the defence case. The prosecution’s duty is to ascertain and disclose to the defence relevant material which includes information in its possession or control, subject to relevance, privilege and public interest immunity. This will include material that has been gathered by the investigating agency and extends to material in the possession or control of another government department or agency if there are particular circumstances suggesting that it may have such material. The duty is not limited to the disclosure of admissible evidence and includes information even though not itself admissible made lead by a train of inquiry to evidence which is admissible. 36.The appellant has taken issue over the failure of the prosecution to disclose to her the Final Report by Atkins China Ltd dated March 2013 and an Audit Commission Report dated 30 October 2014 in which comments were made about traffic signs for cycle tracks.[1] In the Atkins China report it makes the obvious observation that traffic signs serve to provide instructions or guidelines to the road users and must be clear and easily understood by the general public. It was noted that some traffic signs alongside on cycle tracks may be quite confusing and may convey misleading information to cyclists. Specific reference was made to the traffic signs Figure Nos 155 and 156, which indicate “cyclists must dismount” and “end of dismount zone and normal cycling could be restored” respectively. It is stated in the report that the two signs are commonly misinterpreted as “cycling is allowed” and “cycling is prohibited”. It was suggested to replace the existing symbols of the two traffic signs by words with Figure No. 155 “Cyclists Dismount/騎單車者下車” and Figure No. 156 “End of Cyclists Dismount Zone/下車管制區終止”. The Audit Commission report made similar comments and findings. 37.The Traffic Branch of the Hong Kong Police Force passed on to the Transport Department the appellant’s request for disclosure of any relevant studies or reports concerning the nature of the cycling control traffic signs with particular reference to Figure No 155 and in a letter dated 24 March 2014 advised that upon the instructions of the Transport Department the prosecution did not have further documents to disclose in the proceedings. This was clearly incorrect given the date of the Atkins China report. The matter did not stop there as the solicitors for the appellant continued to request for disclosure of reports relevant to the sign up to the date of verdict by the Magistrate on 11 April 2014 and later for the purpose of this appeal which was first set down for hearing on 1 December 2014. It was only in the lead up to the appeal hearing that these reports were uncovered by the defence. 38.Unused material is well defined and understood and the prosecution in the present case was under a positive duty to ascertain and disclose to the defence such material in its possession or control or in the possession or control of the investigating agency or government department or agency concerned with or connected to the prosecution where it appeared likely that it may have such material. The obligation is not on the defence to ask for the unused material but on the prosecution to disclose it. In the present case, the reports and the information they contained on the sign were clearly relevant and had been requested by the defence well before trial. The prosecution were put on notice that such material was required to be disclosed and was likely to be in the possession of the relevant government department. 39.The failure to disclose the Atkins China report was a material irregularity. It was relevant material that may well provided a train of inquiry to admissible evidence. Whilst the Audit Commission report had not been published at the time of trial, it may have been that there was information available in relation to its findings about the sign which could and should have been disclosed. 40.The effect of this is that it resulted in the appellant being deprived of relevant information that she had specifically requested and which could have been used by her in the conduct or presentation of the defence case both at trial and on appeal. There was material non-disclosure and the prosecution did not seek to resist this complaint. On this ground alone the conviction should be quashed. 41.It seems to me that in light of materials that have been uncovered after trial, Mr Coward’s expertise in relation to overseas experiences and practices on cycling signs may have been of assistance to the court. He made a second statement dated 26 February 2014 after an earlier cycling study dated April 2004 by Atkins China for the Transport Department had come to light. He addressed in more detail the issue of regulation of cycling by signs and the experiences here and abroad. He referred to the recommendation in the study that improve signage was needed where cyclists must dismount. He stated that in the United Kingdom the equivalent sign employed simple and understandable language which read “CYCLISTS DISMOUNT”. He stated that Figure 155 was not in conformity with international best practice because it lacked the clear wording such as “NO CYCLING” or “DISMOUNT”. Expert evidence 42.Having determined that there was a material nondisclosure by the prosecution, I need to consider whether to admit the expert evidence of Mr Coward on appeal. 43.The general rule is that a witness may only give evidence of facts which he personally perceived, and evidence of opinions which he has formed of on the basis of the relevant facts is not admissible, it being the role of the court, not that of the witness, to form such opinions. Opinion evidence can be admitted where a non-expert witness conveys facts which he has perceived to the court in terms of his opinion and where an expert witness gives the court the benefit of his expert opinion in relation to a matter falling outside the experience of the court. R v Turner (T) [1975] QB 834 at 840 and 841; National Justice Cia Naviera SA v Prudential Assurance Co Ltd, The Ikarian Reefer [1993] 2 Lloyd’s Rep 68 at paragraphs 81 and 82; R v B(T) [2006] 2 Cr App R 3. 44.Essentially the opinion evidence of an expert witness upon facts which have been proved by admissible evidence is admissible if it relates to a matter which falls outside the experience and knowledge of the court. Only an expert is competent to give expert evidence and where a witness is not an expert he cannot state his opinion upon a matter the formation of a proper opinion in respect of which requires expertise: Fu Kor Kuen Patrick v HKSAR (2012) 15 HKCFAR 524 at paragraph 51 per Gleeson NPJ. 45.Expert evidence is admissible where a court is required to determine an issue which falls outside its experience but is not admissible where the issue before the court is one which falls within the court’s experience. It is important to bear in mind that where expert evidence is admissible, the expert does not replace the tribunal of fact which should determine the relevant issue. 46.I should add that I find that a lot of the evidence that was sought to be presented on behalf of the defence was either irrelevant or in an inappropriate form to be admissible. Photographic and observational evidence of how the sign has been used in other locations and how other cyclists have responded to the sign were not relevant to the issues that the Magistrate had to resolve. He was concerned with this sign and in relation to its location and the appellant’s understanding of and response to it. It may be the photographs that showed other cyclists cycling beyond the sign that they did so not because they were confused by the sign, but rather because they knew what the sign meant and simply chose to ignore it. 47.Whilst I have no doubt about the expertise of Mr Coward in the field of cycling skills and safety, it seemed to me that much of what he stated about the location and sign was not within his area of expertise and, in my view, the issue of whether the sign was ambiguous, unclear or confusing was not one warranting expert opinion, as it did not fall outside the court’s experience and knowledge. However, as I have stated previously I did find his opinions on cycling regulation both here and aboard to be within his expertise and of assistance to the court.[2] 48.By virtue of s 118 of the Magistrates Ordinance, Cap 227, this Court is empowered to admit further evidence on appeal in accordance with the provisions of s 83V of the Criminal Procedure Ordinance, Cap 221. Accordingly I find that the matters that I have referred to in relation to cycling regulation here and aboard are within Mr Coward’s expertise and on these specific matters I admit his expert opinion into evidence on appeal. Are the signs confusing? 49.The next issue is whether Figure 155 and by association Figure 156 are ambiguous, unclear or confusing. Figure 155 is circular and described as “Cycling Restriction” and it is stated in the explanatory note that this sign “shall indicate that cycling is prohibited beyond the sign and cyclists must dismount and push their bicycle or tricycle if they wish to proceed beyond the sign.” 50.My first observation about the sign is that in my view it does not indicate that cycling is prohibited. It displays a figure of a man in standing position with one hand on the seat and the other hand on the handlebars of an image of a bicycle. It does not convey the message that a cyclist should dismount and push their bicycle or tricycle. It is open to interpretation that it indicates the opposite to which it seeks to convey that cycling is permitted. 51.The opposing sign, Figure 156, adds to the confusion of Figure 155. Figure 156 is rectangular and described as “End of Cycling Restriction” and it is stated in the explanatory note that this sign “shall indicate that the end of a cycling restriction indicated by the traffic sign of the type shown in Figure No 155.” This sign has a diagonal line across the same graphics in Figure 155. This too is open to the interpretation that it indicates the opposite to which it seeks to convey that cycling is not permitted. Both signs are white against a blue backdrop with the diagonal line in Figure 156 in red. 52.I can understand road users, being in a state of confusion over these signs. Traffic signs must convey with sufficient precision the message they seek to communicate to road users, whether by words or graphics. A sign should convey a clear and simple message in order to provide adequate information or notice to a road user. 53.This was observed by Lord Clyde in MacLeod v Hamilton [1965] SLT 305 at 308 who in commenting on the Road Traffic Act 1960 said:
54.The notice must contain adequate information to enable a road user to appropriately regulate their conduct. As noted by Beatson J (as he then was) in R (Oxfordshire County Council) v Bus Lane Adjudicator [2010] EWHC 894 (Admin) at paragraph 65:
55.I find Figures 155 and 156 to be ambiguous, unclear and confusing. The depictions in the signs are confusing and would benefit by being accompanied with clear language indicating that a cyclist should dismount or resume cycling as the case may be. This has been the practice in other jurisdictions to which Mr Coward has provided various examples. The principle of legal certainty 56.This leads me to examine whether the sign is sufficiently clear and precise to enable a person to regulate his or her conduct accordingly. The principle of legal certainty requires that the law must be adequately accessible and formulated with sufficient precision to enable the citizen to foresee, to a degree that is reasonable in the circumstances, the consequence which a given action may entail so that he may regulate his conduct. The degree of certainty will vary according to the purpose and context of the law. These statements of principle flow from the passage of the majority judgment in Sunday Times v United Kingdom (1979-1980) 2 EHRR 245 at paragraph 49, where it was stated:
57.This passage was adopted and applied by the Court of Final Appeal in Shum Kwok Sher v HKSAR (2002) 5 HKCFAR 381 at paragraph 63 per Sir Anthony Mason, NPJ. See also Winnie Lo v HKSAR (2012) 15 HKCFAR 16 at paragraphs 18 to 21 per Bokhary PJ, and at paragraphs 71 to 77 per Riberio PJ. 58.The principle of legal certainty applies with equal force with a sign that results in an offence being committed if disobeyed. If the sign which is solely graphical does not with sufficient precision convey to the road user what it is that he can or cannot do, then a fundamental requirement of legal certainty is not satisfied. 59.I have not been addressed on the issue of legal certainty by counsel for the parties to this appeal. I have set out my reasons on the issue without the benefit of argument from counsel but I felt it necessary that I should do so because of its relevance to the issue before me. Reasonable excuse 60.A similar approach was taken in a Hong Kong magistracy appeal case, although dealing with reasonable excuse, where the issue was whether a road marking was clear and unambiguous to enable a reasonable man to understand its meaning. The case was R v Murray-Jones Paul, MA No 1189 of 1988 which both parties to this appeal have extensively addressed. In that case, Hooper J was concerned with similar regulatory traffic provisions to the present case where failure by a person to comply without reasonable excuse with a road marking of a type shown in the Schedule to the Regulations committed an offence. The appellant complained that he contravened the road marking because of the ambiguity with road signs and so therefore he had a reasonable excuse for doing so. It was on this basis that Hooper J allowed the appeal and quashed the conviction. He said:
61.He concluded:
62.Whilst the present case is concerned with whether the sign itself is ambiguous or confusing, which I have held it is, then the appellant avoids conviction of any contravention for want of legal certainty of the sign. 63.Having found that the sign is ambiguous and confusing and that the appellant did not understand the sign as a consequence, the question arises whether she had a reasonable excuse for disobeying the sign at the material time. This deals with the issue whether the appellant had an obligation to find out the meaning of the sign because she was confused by it. Obligation on road users 64.The Magistrate addressed in some detail the issue as to whether a road user is obliged to know what traffic signs mean. He was clearly influenced by the fact that the appellant cycled at the location on almost a daily basis for the last five years and was aware of the sign which she found confusing but took no action to find out what it meant. He addressed the issue on the basis as to whether the appellant was honestly and reasonably confused by the sign. He stated that an explanation as to the meaning of the sign was contained in the Road Users’ Code[3] and that in the circumstances it was reasonable to expect cyclists, including the appellant, to be aware of the provisions of the Code. He found that a reasonable cyclist would have referred to the Code and the appellant’s failure to do so resulted in her not being honestly and reasonably confused by the sign. He of course found that the sign was not ambiguous or confusing and that clearly played a part in his reasoning. 65.In his written submissions, Mr Antony Leung, for the respondent, argued that the Magistrate did not rule that cyclists were required by law to be familiar with the Code but rather that if a reasonable cyclist is confused about the meaning of a traffic sign he should have referred to the Code for its true meaning. He submitted that the Magistrate was doing no more than evaluating whether the appellant’s conduct in the present case was reasonable or not, which was a question of fact for the Magistrate to decide. He referred to s 109(5) of the Road Traffic Ordinance which provides:
66.Mr Leung argued that on the basis of this provision, it was reasonable to expect a road user to refer to the Code for the meaning of a particular traffic sign when he was in doubt about it. 67.That is not how I see the matter. The issue that the Magistrate was addressing was whether the appellant was honestly and reasonably confused. There was no evidence before him that she was familiar with or accessed the Code in relation to the sign. He incorrectly in my view reasoned that it was not reasonable for her not to have accessed the Code about the sign and extrapolated that she was therefore not reasonably and honestly confused by it. In other words, he found that the appellant’s failure to find out the meaning of the sign from the Code meant that she was not honestly and reasonably confused by it. 68.The Magistrate reasoned that if the appellant knew of the existence of the sign and was confused by it, she made no effort to find out what it meant when its meaning was explained in a readily accessible publication that she was obliged to know. The first difficulty with this point is that the appellant testified that whilst she was confused by the sign she understood it to mean that she could keep on moving and it would appear that she had cycled through the location on a regular basis over the last five years without being stopped for disobeying the sign. The second difficulty with this point is that the sign itself does not convey clear and adequate information of the conduct to be regulated. As I have held the sign was ambiguous or confusing and that it is open to the interpretation that it conveys the very opposite meaning it seeks to communicate to a road user. 69.It is on the particular circumstances of this case that I find that it was not reasonable to expect the appellant to find out the meaning of the sign by either being familiar with or accessing the Code on the matter. The sign was ambiguous and confusing and it led the appellant to believe that she could cycle in the controlled area. This should not be taken that there is not an obligation on all road users to know the laws and regulations of the road. 70.It is not without significance that there had been a number of cases in the past that have addressed the appropriateness of the regulatory regime in relation to road use. In practically each case, the courts have remarked about the high incidence of death and injury on the roads caused by the misuse of motor vehicles and the serious problem it poses to a community. Whilst cyclist may not pose the same threat to public safety as do drivers of motor vehicles, they still can through their conduct on the roads create a dangerous or harmful situation to others and themselves. There is in place a regime of regulation which road users are expected to know and abide by in order to deal with this serious social problem. There is no question that there is a clear public interest in maintaining road safety through enforcement of road traffic legislation and in consequence some measures that have been challenged as representing a disproportionate response have been upheld by the courts. See Brown v Stott [2001] 2 WLR 817; S for J v Lakter [2009] 2 HKC 100. Those who drive on the roads, and this includes cyclists, must know and accept that this subjects them to certain responsibilities and obligations in order to regulate the conduct of road users and promote safety on the roads. See Brown v Stott at 836E-G per Lord Bingham; O’Halloran and Francis v The United Kingdom (2008) 46 EHRR 21 at paragraph 57. 71.The responsibilities and obligations on a cyclist as a road user are clear. As submitted by Mr Leung, drivers of motor vehicles and cyclists alike must obey traffic signs, road markings and traffic rules in order to avoid causing danger to other road users and themselves. He referred to Chapter 4 of the Code which specifically concerns cyclists and made reference to the two signs in question. It is stated in the opening two paragraphs of the chapter that:
72.The key issue in this case was that the sign was ambiguous and confusing and this was also confirmed by reports of the Transport Department. This would not be corrected by what is stated in the Code for the sign remains ambiguous and confusing. It therefore in my view offended the principle of legal certainty and also gave the basis for the appellant to have a reasonable excuse for not obeying it. Conclusion 73.For the foregoing reasons, I allow the appeal and quash the conviction and set aside the sentence. It follows for the reasons I have given that I make no order for a retrial. Disrespect for the rule of law 74.In correspondence with the Prosecutions Division of the Department of Justice, the solicitors for the appellant, stressed that she was a person of positive good character who was a caring and considerate member of the community with a clear record. It was also stated that she was a full-time charity worker who was well-known in her community for her commitment to public service.[4] I mention this because of her behaviour when she was stopped by the police sergeant for riding her bicycle. 75.The police sergeant was in uniform as was his colleague, a woman police officer, who were patrolling this area where cycling was prohibited. 76.When the police sergeant stopped the appellant he explained to her that she had committed an offence against the traffic regulations and he asked her for her proof of identity. She ignored the police officer’s request and proceeded to leave. The police sergeant stopped her by grabbing her arm and he again asked her for her proof of identity otherwise he would arrest her. She refused and asked him under what power could he arrest her. He told her section 50 of the Police Force Ordinance. She said he was pointing at her and spoke to her in a rude and threatening tone. The police sergeant said she was being uncooperative and difficult. It was about then that the woman police officer joined the police sergeant. She said she would give her identity card to the woman police officer but not to the police sergeant. She then gave her address and telephone number. As she was about to leave she told the police sergeant “Ah Sir, if not for that I was going to a meeting, I can play a lengthy game with you. Let me teach you one more word. Civil disobedience”. It was not challenged that this exchange took place. 77.The appellant in her evidence said that when she was stopped by the police sergeant, he asked her why she did not dismount from her bicycle and she asked him why. He replied because of the sign she needed to dismount from her bike. She said “No, because this sign doesn’t say that”. He asked her for her identification and she refused because she wanted his explanation why she needed to give him her identity card. She said she did not see that she had committed a crime or that she had done anything wrong. She asked for the police sergeant’s warranty card because she wanted to know his name. She said he insisted that she give him her identity card but instead she asked him which law had she offended and whether she was arrested. She said he did not show her his warranty card at that time although he did after the matter was finished. 78.She testified that she was suspicious as to what the matter was about and that the police officer was quite rude when he tried to stop her and ask for her identity card. She said she was quite displeased and she took photos of the officer if she needed to make a complaint about his attitude. 79.She took two photographs of the police sergeant who was in full uniform with identification as to his rank and number. In the background of one of the photographs was the woman police officer talking to another cyclists who appeared to have been stopped by her. 80.It is clear to me that the two police officers were performing their duties, monitoring and policing the area for the general safety of road users. Disrespect is like any other insidious behaviour, it can escalate to a level and degree where it can have a grave effect. The rule of law is the lifeblood of the community in Hong Kong. The persons entrusted to enforce the laws should be given due respect and understanding from members of the community, and at least the same due respect and understanding that members of the community expect them to give to persons upon whom they seek to enforce the law. Mutual trust and respect may not have the force of law but it is the driving force that upholds the rule of law. The obdurate and disrespectful behaviour by the appellant to the police sergeant was unwarranted and totally inappropriate. It is clear to me that the police sergeant was doing no more than his duty in seeking to control an area that may pose as a safety risk to road users. This sort of behaviour is not conducive to the maintenance of a civil society based on mutual trust and respect.
Mr Antony Leung, PP of the Department of Justice, for HKSAR Mr Azan Marwah, instructed by Vidler & Co., Solicitors, for the appellant [1] See the Final Report by Atkins China Ltd at pages 62-64, paras 4.4.3.1-3.4, and the Audit Commission report for the Transport Department dated 30 October 2014, Chapter 9, “Provision of cycle track network in the New Territories” at 60-64. [2] See paragraph 41 of the judgment. [3] Road Users’ Code May 2000 Edition, Chapter 4 For Cyclists [4] Messrs. Vidler & Co, solicitors, letter dated 12 February, 2014. | |||||||||||||||||||
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