ATTORNEY GENERAL v. SIN KA LOK

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H E A D I N G

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    Case stated - 'no stopping' sign prohibits 'waiting' - 'prevented from proceeding due to traffic conditions' does not cover a taxi queuing in road in order to go to a hotel forecourt in hope of picking up a fare - that a prosecution is discriminatory, is not a good ground for finding no case to answer.

IN THE SUPREME COURT OF HONG KONG

MAGISTRACY CRIMINAL APPEAL NO. 39 OF 1988

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J U D G M E N T

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1. This is an appeal by the Attorney General, by way of case stated, from a decision by a Magistrate, who found no case to answer, on the trial of the Respondent for the offence of failing to comply with the traffic sign, which indicated "No stopping All Vehicles Except with Permit", contrary to Regulation 59(1) of the Road Traffic (Traffic Control) Regulations, Chapter 374. The Respondent's vehicle had no permit.

2. The case stated sets out various matters as having been found as a fact. Of course, when at the conclusion of the prosecution case, considerations is being given to whether there is a case to answer one considers the evidence and what facts could be found from it. One does not actually find facts. I consider the case on the basis that what is stated to have been found as a fact should have been described as matters of which evidence were given.

3. Evidence was given of the following facts. The location in question was the front portion of Gloucester Road near the Exclesior Hotel. There were three lanes westbound with the left-most lane joining the forecourt of the hotel. There was a traffic sign at the location indicating "No stopping, All Vehicles Except With Permit." The road was also marked with continuous double yellow lines indicating no stopping. The Respondent was driving a taxi on the left-most lane intending to turn left to enter the forecourt of the hotel to pick up a passenger. The Respondent waited to enter the forecourt of the hotel in a queue, thus causing a traffic hold-up. There were no vehicles ahead of the Respondent on the road westbound while he was queuing to enter the forecourt of the hotel. The Respondent's vehicle was empty at the time when he joined the queue, and he picked up a passenger after he had entered the hotel forecourt. The Respondent could not have entered the hotel forecourt, at the time he joined the queue, because other vehicles were in his way. The engine of the Respondent's vehicle was running at all times.

4. At the conclusion of the prosecution case in which evidence of those facts had been given, the Magistrate in the words of the case stated:

5. 'Being of an opinion that the police officer's (PW1) behaviour was unreasonable in singling out one driver in the queue, and that there was a difference between "waiting" and "stopping", I did not allow the case to proceed, and held there was no case to answer.'

6. It appears that one of the matters which weighed with the magistrate, was that he was of the opinion that the prosecution of the Respondent was discriminatory. Even if that was so it would not be a good reason for finding no case to answer, though it might have provided mitigating circumstances for sentence. See Dunning v. Trainer (1908 - 1909) 25 Times Laws Report P.58, McClelland v. Brady 1918 Irish Reports P.63, The Queen v. Caird 54 Criminal Appeal Report 499. Regulation 59(1) of the Road Traffic Control Regulations, forbids failure to comply with various traffic sign including a 'no stopping' sign, as set out in Figure 140 of the schedule to the regulations. Regulation 31 provides that sign shall have the meaning set out in the note in the schedule relating to that sign, and that note states in its relevant part, 'This sign indicates that the stopping of motor vehicles except for franchised buses at the designated bus stop is prohibited, unless the vehicle is prevented from proceeding due to traffic conditions.' The Traffic Ordinance and Regulations contain no reference to vehicles being controlled by a prohibition against waiting. The legislation in no way justifies drawing a distinction between stopping and waiting. Broadly speaking, one cannot wait without stopping, stopping precedes waiting, and in the context of the Road Traffic legislation, I cannot conceive of a situation where there could be waiting without there having been stopping. It seems to me that the sign in question prohibits coming to a stop, and remaining stopped, unless traffic conditions bring that situation about.

7. Accordingly the magistrate was wrong to draw such a distinction. An application was made for the magistrate to review his decision. From the terms of the case stated it is implied that the magistrate, on the application to review, was persuaded that the basis of hisdecision had been wrong, but he refused to review on the new ground that due to the queue of cars already ahead of him, the respondent was prevented by traffic conditions from proceeding, and therefore he was not in breach of the regulations. The respondent on the evidence before the magistrate did not have a passenger at the time. He wished to go to the hotel forecourt in the hope of picking up a passenger. There is nothing to suggest he was going to a taxi rank, which would be the duty of a taxi seeking a fare, see regulation 45 (2)(C) of the Road Traffic (Public Service Vehicles) Regulations, and in the circumstances it could not properly be held that he was prevented from proceeding due to traffic conditions. He was not in those circumstances entitled to contribute towards obstructing the free flow of traffic. If he had had a fare whose destination was the Exclesior Hotel the decision might well be different.

8. Whether a vehicle is prevented from proceeding due to traffic conditions, is in each case to be judged on the basis of reasonableness in the light of the factual circumstances, and the object of the regulations, which is to prevent interference with the free flow of the traffic in that area. The questions, and my answers are as follows:-

Q. Was I correct in dismissing the case in the circumstances?

A. No.

Q. Was I correct in holding as a matter of law that there is a difference between "stopping'' and "waiting" for the purpose of Regulation 59(1) of the Road Traffic (Traffic Control) Regulations, Chapter 374 in the context of Figure No. 140 of the First Schedule of the said Regulation read with section 19 of the Interpretation and General Clauses Ordinance, Chapter 1.

A. No.

Q. Whether I was correct in holding, as a matter of law, that in the circumstances the Respondent was prevented from proceeding by the traffic conditions.

A. No.

9. The prosecution do not seek the case to be remitted with a direction to the Magistrate to continue with the case, and accordingly I make no further order.