Lee Pick Chun, Sally Alias Sally Man v. The Attorney General
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IN THE SUPREME COURT OF HONG KONG (APPELLATE JURISDICTION) CIVIL APPEAL NO. 31 OF 1972 (On appeal from Central Magistracy No. S.8921/1972) ________________________
________________________ Coram: Huggins J. ________________________ JUDGMENT ________________________ 1. This is an appeal against an Order made by a magistrate upon the Complaint of the Attorney General under the Fixed Penalty (Traffic Contraventions) Ordinance. It is the first of such cases to come before this court. 2. When the papers were first placed before me I noticed that the Court office had entered the appeal as a criminal appeal, which appeared to me to be wrong and to be prejudicial to the Appellant. It is, however, fair to say that the Court office may well have been misled by the form of the Notice of Appeal and, even more, by the fact that the record forwarded by the Magistrate’s court included a “Conviction for Fine”. I directed that the appeal be re-entered in the correct register as a civil appeal and this has now been done. 3. Some question was raised during the hearing of the appeal whether the declared intention of those who introduced this legislation, that proceedings to recover the penalty prescribed by the Ordinance should be taken outside the ambit of the criminal law, had been effectively fulfilled by the draftsman and it was suggested that if it were necessary to decide that question for the purposes of this case the issue should be referred to the Full Court. Having now had the opportunity to look at the authorities I am satisfied that the answer is so clear that a reference to the Full Court would not be justified. Proceedings under the Ordinance must be commenced by Complaint and not by Information and the fixed penalty is recoverable, and recoverable only, “as a civil debt”: s.16(1). A civil debt is defined by s.2 of the Magistrates Ordinance as
4. That conforms with the definition in s.6 of the Summary Jurisdiction Act 1879 of England. Section 67(1) of the Magistrates Ordinance provides
5. and there follow two provisos, which it is not necessary to reproduce. The amount recoverable under this Ordinance is, as appears from its very name, fixed and ascertained. The fact that it is described by the statute as a “penalty” does not prevent the proceedings from being civil in nature: Reg. v. Kerswill([1]). The test is the form of the proceedings (R. v. The Justices of the Appeals Committee of the County of London Quarter Sessions(2)) and the form of the proceedings for recovery of a fixed penalty under this Ordinance is clearly that appropriate to a civil claim. It was wrong to enter a “conviction” and the debt was wrongly described in the Conviction as a “fine”. 6. That disposes of the eighth ground of appeal, which was that there was a mistrial because “the Prosecution” had been “allowed to exercise its right of reply after the closing speech for the Defence”. As drafted, the Notice of Appeal appears to concede that there is a right of reply, but, even disregarding that, I have no doubt as this was a civil proceeding counsel for the Attorney General had a right of reply. 7. The substance of the appeal is two-fold: first it is said that the learned magistrate should not have believed the constable who gave evidence in support of the claim and secondly that in any event there was no evidence to support the magistrate’s finding that there had been the contravention which was alleged to have given rise to the debt. The Complaint asserted that at about 7:27 p.m. on 7th February 1972 the Appellant’s private motor-car was permitted to stand on a road in such circumstances as to be likely to cause unnecessary obstruction of such road. The road in question was Des Voeux Road Central, just outside No.77, which is the Hang Seng Bank Building. The police constable said that he saw the car stop at the side of the road. At first he paid no attention to it but after about half a minute he noticed that “other vehicles had to make a detour from lane it was in”. He then went up to the car and saw a woman, who was in fact the Appellant, sitting on the near side in the front, there being no one in the driver’s seat. According to the constable the Appellant told him “the driver was away and would be back soon”: the driver did not come within the next two minutes and thereupon the constable issued “Form Pol.525”, which I take to have been Form 1 under the Ordinance: as he was completing the form the Appellant’s husband appeared and apologized and a conversation ensued, which is not material to this appeal. As his explanation for having issued the form for “unnecessary obstruction” the constable said:
8. There were 2 lanes in the location. Traffic in inner lane had to wait for clearance of traffic in outer lane before they could move out.” 9. In the record of his cross-examination and re-examination appear the following questions and answers:
10. While I was standing on opposite side of road I saw vehicles stationary. There were 4 other vehicles which made a detour.” 11. The evidence of the Appellant and her husband was to the effect that the Appellant drove the car to the side of the road and stopped: that the husband was at the entrance to the Bank and was in the act of walking down the steps: that the Appellant moved over into the passenger’s seat and that the husband walked round the back of the car and, when the state of the traffic allowed, entered the driver’s seat. They said that there was no unreasonable delay and certainly not a delay of two to three minutes as indicated by the constable’s evidence. A business colleague of the husband was also called. He said he saw the husband standing at the entrance to the Bank and spoke to him. He continued:
This witness was not cross-examined. 124. A sketch was produced at the trial and the certifying officer should have ensured that a copy was included in the record for the use of this Court. I have not seen the sketch and no reference has been made to it by either side. 13. The first argument in support of the contention that the constable should not have been believed was that the husband’s colleague, whose evidence was inconsistent with that of the constable, was not cross-examined. Therefore, it was said, there was an admission that his evidence was true. That is to put far too high the duty of putting one’s case to the opposite party’s witnesses. The basis of the duty is that the opposite party shall have an opportunity of meeting the case by appropriate questions to his own witnesses. It follows that the duty applies to a party who is in the position of a defendant rather than upon a party upon whom lies the burden of proof, for once the evidence of the latter has been led there will usually be nothing new which he can spring upon his opponent. Thus in CHAN Chi-kong v. Reg.(3), which was relied upon by the Appellant, a prosecution witness was believed when he had not been cross-examined and had therefore had no opportunity to deal with the defendant’s case. That was very different from the present case, where a defence witness has been disbelieved although he had not been cross-examined. The solicitor for the Defendant can have been in no doubt what was the case for the Attorney General when he put this witness into the box. 14. I do not accept, as is then contended, that there was no reason to disbelieve this defence witness. The learned magistrate was “more impressed with the police witness’s evidence” (which presumably means more favourably impressed) and believed him. That was sufficient reason for disbelieving the defence witness. 15. The second line of attack on behalf of the Appellant is that there can be no obstruction if it is possible for approaching traffic to swerve past the alleged obstruction. In effect it is said that it is a matter of degree. Counsel cites Nagy v. Wilson(4) and in particular the passage at p.284 where Lord Parker, C.J. said:
16. I could not accept that there can never be an obstruction where free passage can be had by swerving, the more so where the mischief to be avoided is conduct which is “likely to cause any unnecessary obstruction”. The learned magistrate had those words very much in mind when he gave his ruling upon a submission that there was no case to answer (without, be it noted, his having called upon the Appellant to elect whether she would or would not adduce evidence if the ruling went against her). It is unnecessary for me to decide whether it would be a contravention of s.4 of the Ordinance for a driver to stop, at the time of day and place of this incident, no longer than was required to allow a passenger to alight or a waiting passenger to board. The learned magistrate indeed said that if he had believed the Appellant’s evidence he would have found that there had been no such contravention as that alleged. In my view he was entitled to believe the constable and to find that the vehicle “was likely to cause [an] unnecessary obstruction”. These were questions for him: he gave them careful consideration and I see no reason to disagree with his conclusion. 17. The appeal is dismissed. 31st July 1972. (2) 1946 1 K.B. 176 |