HKSAR v. KILA MATALA MUTAKWE, CHRISTIAN

HCMA 111/2007 &
HCMA 61/2007

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. HCMA 111 OF 2007

(ON APPEAL FROM ESS 16254/2006) AND

MAGISTRACY APPEAL NO. HCMA 61 OF 2007

(ON APPEAL FROM ESS 20322/2006, 21529/2006-21532/2006)

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J U D G M E N T

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HCMA 111/2007

1.  In HCMA 111/2007, the Appellant was convicted of the offence of “Driving a Motorcycle Without Displaying a ‘P’ Plate”, contrary to Regulations 12K(1) and 46(2) of the Road Traffic (Driving Licences) Regulations, Cap. 374B, made under the Road Traffic Ordinance, Cap. 374. 

2.  The offence took place on 23 February 2006.  The Appellant pleaded guilty by letter and on 13 July 2006, he was convicted of the offence and fined $200.00.

3.  On 4 January 2007, the Appellant applied for extension of time for giving notice of appeal.  On 5 January 2007, that application was refused, but on 11 January 2007, the Magistrate reviewed his decision and gave the Appellant leave to appeal out of time against conviction.

4.  The Appellant appealed on the ground that he was not guilty of the offence.

HCMA 61/2007

5.  In HCMA 61/2007, the Appellant was convicted after trial of five offences: three being a failure to display a ‘P’ plate, one of Crossing Double White Lines and another of Carrying a Passenger on a Motorcycle, contrary to Regulations 12K(2) and 46(2) of the Road Traffic (Driving Licences) Regulations, Cap. 374B.

6.  He was fined $1,000.00 for the offence of crossing double white lines; $500.00 for carrying a passenger on a motorcycle; for the first offence of failing to display a ‘P’ plate committed on 11 June 2006, he was fined $400.00 and for similar offences committed on 7 July 2006 and 20 July 2006, he was fined $500.00 on each.  The Appellant appealed against conviction and sentence.

7.  The Grounds of Appeal can be summarised as follows:

(1)     The Appellant was aggrieved that his Democratic Republic of Congo driving licence was not automatically recognised by the Hong Kong Transport Department on a reciprocal basis.

(2)     He complained that he should have been given a full licence not a probationary licence at the time he applied for a driving licence.

(3)     The Appellant claimed that he had 18 years of driving experience, both in the Democratic Republic of Congo and elsewhere in the world, and he considered that a special licensing category for drivers should be devised to cover his particular situation, i.e. a “veteran” driver who was transferring to a country where his original licence is not recognised. 

(4)     The Appellant submitted that he should have been given a special test and, if he passed, a full licence should have been issued.

8.  In HCMA 61/2007, the Appellant gave evidence and did not dispute that he had been riding a motorcycle on the occasions set out in the summonses.  He admitted that he was not displaying a ‘P’ plate while driving.  He considered that he has been discriminated against because the legislation did not provide a category for experienced drivers of his experience.

9.  On appeal, the Appellant, who appeared in person, told the court that he was not objecting to paying the fines, nor was he appealing against the convictions for crossing double white lines and carrying a passenger.  He was appealing only against his convictions for failing to display a ‘P’ plate.  He admitted that he was aware of the requirement of his probationary licence that he should display a ‘P’ plate for 12 months.  In those circumstances, the Magistrate correctly found him guilty of those offences.

10.  The Appellant told the court he wished to make a point of principle by appealing against his convictions.  He said that he had been advised by a staff member of the Transport Department to go to court to pursue his grievance there.  Unfortunately, this court is unable to do anything to assist the Appellant in pursuing the matter of principle that he outlined.

11.  It is for the legislature, advised by the Commissioner for Transport, to decide which countries should have their driving licences recognised by Hong Kong on a reciprocal basis at any particular time.  The Democratic Republic of Congo is not a country from which the driving licence is accepted automatically.  Many other countries are in the same position.

12.  The Appellant referred to the requirement of displaying a ‘P’ plate as being “degrading” to a veteran driver and complained that he was being discriminated against, but it is quite clear that the Commissioner for Transport can set regulations for the issuing of driving licences according to the view taken by the legislature.

13.  Having considered the matters raised by the Appellant; the Magistrate’s findings in HCMA 61/2007 and 111/2007, and noting the admissions made before the Magistrate and on appeal by the Appellant, this court has no alternative but to dismiss the appeals against conviction and sentence.

14.  Accordingly, the convictions in HCMA 111/2007 and 61/2007 are upheld, and the Appellant’s appeals are dismissed.

Addendum

15.  To conclude, I place on record that the court reminded the Appellant that the probationary period during which ‘P’ plates have to be displayed runs for 12 months and that it was in his own interests to obey the regulations.  If he proposed to ride his motorcycle he should ensure first that he had the ‘P’ plates exhibited and further, that he did not take any passengers on his motorcycle, as it was a breach of his probationary licence.

16.  The Appellant was unable to explain in sufficient detail, precisely what it was he had been advised to do by the Transport Department staff to whom he complained.  For that reason, this court invited the Appellant to produce at a later date, if he wished, any letters or correspondence setting out what he had been told he should or could do.  The court would consider any such papers and if necessary, would direct the Appellant, or suggest to him, where or to whom, he might make his complaint on his point of principle.

17.  The Appellant was reminded on several occasions that it is not for the court to change, or initiate legislation, as he appeared to expect the court to do, but if necessary or appropriate, the court might be able to suggest to whom he might address his current dissatisfaction.