HKSAR v. Ho Loy

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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DECISION

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1.This is an application by the respondent for a certificate pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484 that points of law of great and general importance are involved in the decision that I handed down on 20 April 2015.

2.The decision concerned a magistracy appeal where I quashed the conviction of the appellant for the offence of failing to comply with a traffic sign on the basis that there was material non-disclosure in that internal reports of the Transport Department which found that the sign in question was ambiguous and confusing were not disclosed despite being requested by the appellant; and that the sign was ambiguous, unclear and confusing which gave the appellant a reasonable excuse for disobeying it. 

3.The sign in question was Figure No 155 which operated in tandem with Figure No 156.  They purported to indicate a cycling restriction by the former and the end of the cycling restriction by the latter. It was an issue in the appeal whether the traffic sign was ambiguous, unclear or confusing and this therefore brought into consideration the principles of legal certainty.  These principles are clear and settled and apply to all forms of prohibitory or regulatory conduct whether expressed in an offence provision or depicted by a sign. 

4.The offence in question is set out in Regulations 50(2) and 61(2) of the Road Traffic (Traffic Control) Regulations, Cap 374G, which so far as material state that a person riding a bicycle on a road shall comply with “the requirement indicated by a traffic sign” of the type shown in any of the Figure Nos in Schedule 1, including Figures 155 and 156 and failure to do so without reasonable excuse is an offence. 

5.As explained in my judgment what must be complied with is the requirement as indicated by the traffic sign.  It was a question of whether the sign itself was ambiguous, unclear and confusing.  I should add that I also took into account the particular circumstances of this case when considering the failure to comply with the sign by the appellant.

6.The points of law as being of great and general importance upon which the certificate is sought are framed as follows:

“In the context of the regulatory regime under the Road Traffic Ordinance Cap. 374 and its regulations governing road traffic offences and, in particular, in relation to the offence of failing to comply with a requirement indicated by a traffic sign contrary to Regulations 50(2) and 61(2) of the Road Traffic (Traffic Control) Regulations Cap. 374G (‘the Regulations’):―

(1) How does the principle of legal certainty operate and what is the extent of its requirements?

(2) Whether or not misunderstanding or ignorance of the legal requirement as indicated by a traffic sign – when such requirement is expressly set out in the Regulations and the Road Users’ Code – can give rise to a reasonable excuse under Regulation 61(2) of the Regulations?”

7.The grant of a certificate requires the applicant to show that a question of law of great and general importance is at stake. 

8.The first question is expressed in fundamental and broad terms and raises no point of law of great and general importance.  The principles of legal certainty are well settled.  These principles apply to prohibitory and regulatory conduct whether it is by the language in a statue or the visual language of a sign.  Just as the language of an offence provision needs to be clear and precise so do the graphics as indicated by a sign. 

9.The respondent presents a curious argument in that it advances a positive case that other traffic signs are confusing in submitting that this case has important and wider implications.  I do not see the relevance of the circumstances of the meaning of other signs except maybe to indicate that there is an issue with them as well.  The question here is whether Figure 155 is ambiguous, unclear and confusing.  That is what the judgment addressed and found to be the case. 

10.The primary consideration is what the sign says.  If there is no transference of a clear or understood meaning then the sign may offend the principles of legal certainty.  See R (Oxfordshire County Council) v Bus Lane Adjudicator [2010] EWHC 894 (Admin) at paras 62 and 65.  This is a contextual matter.  A regulatory sign to a certain extent is different from a regulatory statutory provision.  A traffic sign is immediate and a person is required at the time to comply with what is depicted visually by the sign at the place where it is erected.  It is not an answer to say that an explanation of the sign is provided elsewhere because that does not cure the inherent defectiveness of the sign itself.  Otherwise, a traffic sign could depict any form of graphics, even one unrelated to the subject matter it seeks to indicate which would still be valid, according to the respondent’s submission, as long as there was an accessible explanation of it elsewhere. 

11.The second question also does not raise a point of law of great and general importance.  The argument mounted by the respondent is misconceived.  It is not a question of whether the traffic sign was not understood by a road user who chose to ignore it.  It is a question of whether the traffic sign itself is confusing.  The respondent in its written submission acknowledged that there may be situations where a traffic sign has caused genuine and reasonable confusion which would be covered by the defence of reasonable excuse.

12.The question as framed presupposes that the legal requirement as indicated by the traffic sign is clear and unambiguous but that was the very issue that was decided to the contrary in this case.  In any event, the question does not raise a point of law because it turns on whether according to the facts and circumstances of the case the appellant had a reasonable excuse. 

13.The application for a certificate is therefore refused.

14.I wish to express my appreciation to counsel for their comprehension written submissions and helpful oral arguments. 

Mr William Tam SC, DDPP of the Department of Justice, for HKSAR

Mr Nigel Kat SC and Mr Azan Marwah, instructed by Vidler & Co., for the appellant