HKSAR v. LI CHI KIN

[English Translation – 英譯本]
HCMA 644/2011

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 644 OF 2011

(ON APPEAL FROM ESS23091-2 OF 2011)

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JUDGMENT

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1.  The appellant was prosecuted for the two offences respectively stated in two summonses.  Summons ESS23091/2011 alleges that the appellant did use a taxi of which the body work or fittings did not comply with the regulations[1]. The other summons ESS23092/2011 alleges that the appellant did use a taxi of which the front lamps, as required to be installed by the regulation[2], were not maintained in clean and efficient condition[3].

2.  The appellant appeared before the Eastern Magistracy and pleaded not guilty to the two offences.  He was not legally represented, and conducted his defence in person.

3.  The appellant was convicted after trial by a Deputy Special Magistrate (“the magistrate”) of the two offences, and was fined HK$2,100 for each offence, totaling HK$4,200.  The appellant is aggrieved with the convictions and sentences and appeals against the convictions and sentences.

Prosecution Evidence

4.  At 8:45 am on 6 April 2011, while Police Sergeant 49985 (“PW1”) was travelling on board a police patrol vehicle at Gloucester Road near lamppost no. 36184, he saw the appellant driving a taxi displaying registration mark KA6705 (“the taxi) without putting on a seat belt.  While issuing a ticket for that offence, PW1 suspected that there might be problems with the vehicular structure of the taxi.  He then inspected the taxi.  After inspection, he found that there were problems with the structure of the taxi which was then escorted by the police patrol vehicle to the Quarry Bay Vehicle Detention Pound.  Mr. Leung Chi-kin Raymond, motor vehicle examiner of the Transport Department (“PW2”), was responsible for examining the taxi.  Having thoroughly examined it, he provided a motor vehicle examination report in which he pointed out three defects:

(1) Both side obligatory front lamp lenses were insecure;

(2) Off side front bumper was insecure; and

(3) Off side obligatory front lamp was inoperative.

Mr. Leung’s motor vehicle examination report was produced in court as Exhibit P1.

Defence Evidence

5.  The appellant elected to give evidence.  He admitted that he was driving the taxi at the material time.  He alleged that at the time of the offence he was intercepted by (a) police officer who accused him of failing to put on seat belt while the taxi was in motion, a quarrel ensued, and therefore the police officer took revenge on him by sending his taxi to the pound for examination.

6.  The appellant said he was neither the vehicle owner nor the one responsible for the repair and maintenance of the taxi.  Further, it was impossible for him to conduct an hourly check as to whether or not the fittings of the taxi were damaged or faulty.

7.  Under cross-examination, the appellant alleged that some irregularities [namely, both side obligatory front lamp lenses  being insecure and the off side front bumper being insecure] could not be spotted by the naked eyes.  But he did not deny the findings made by PW2.  As to the defect that the off side obligatory front lamp was inoperative, the appellant said the dashboard did not show it was inoperative.  Coupled with the fact that he had checked the vehicle before he started driving, the problem, therefore, might have been caused by the shocks generated while the vehicle was in motion. 

Grounds of Appeal

8.  On the day of the hearing of the appeal, the appellant put forward some grounds of appeal, which are now summarized as follows:

(1) He was a taxi driver renting the taxi.  It was the responsibility of the vehicle owner to repair and maintain the vehicle;

(2) On the day in question, before he started work he had checked the vehicle and had not found any problem;

(3) On the day in question, the vehicle was arranged to be examined only because there had been a quarrel between him and the police officer;

(4) The problems found in the examination were minor ones and it was difficult to detect those problems merely by the naked eye; and

(5) There were occasions where other drivers in similar circumstances were found not guilty.

Consideration

9.  The magistrate was satisfied with the submissions (sic) of the two prosecution witnesses.  Having considered the reasons given by the magistrate, I do not see any problem with his decision.

10.  Although according to the appellant the vehicle examination was arranged by the police officer only after the officer had had a quarrel with him, the crux of the case lies on the fact that PW2 did find the mechanical defects concerned in the examination, the findings of which were not disputed by the appellant.  In the present case, there was no evidence whatsoever to show that the police officer had done anything improper to the vehicle.

11.  The appellant said there were occasions where other drivers in similar circumstances were found not guilty.  The circumstances and evidence to be considered by the court vary from case to case.  I will only focus on the present case in my consideration.

12.  The remaining grounds advanced by the appellant are related to the issue as to whether the offences concerned are absolute liability offences.

13.  In giving the verdict, the magistrate took the view that both offences were of absolute liability.  He relied on paragraph 1.179(2) in Wilkinson’s Road Traffic Offences as his basis.

14.  In making his submission, Mr. Hayson Tse, counsel for the respondent, agrees with the view of the magistrate and points out a series of cases in which such a view was supported, including a recent case, HKSAR v Cheerway Holding Limited, HCMA 635/2010, in which Pang J held that a breach of regulations 19(1)(a) and 5(4) of the Road Traffic (Construction and Maintenance of Vehicles) Regulations thereby violating regulation 121(1) is an absolute liability offence.

15.  Generally speaking, in criminal cases it is incumbent on the prosecution to prove the mens rea of the accused.  Even if this is not expressly stated by the statute, it must be so presumed.  Different offences may have different mens rea requirements.  As regards the offences concerned in the present case, if proof of mens rea is required, it would involve knowledge of the appellant and the prosecution must prove that the appellant had knowledge about the existence of the defects concerned.

16.  The aforesaid presumption requiring the proof of mens rea may be displaced, but only by going through a stringent analysis.

17.  In Hin Lin Yee v HKSAR (2010) 13 HKCFAR 146, the Court of Final Appeal emphasized that unless a statute has expressly or by necessary implication displaced the aforesaid presumption, the prosecution must prove mens rea.  The Court of Final Appeal also set out comprehensively the considerations in this regard, which I rely upon as the basis of my consideration.

18.  The Road Traffic (Construction and Maintenance of Vehicles) Regulations is subsidiary legislation made under section 9 of the Road Traffic Ordinance for the purpose of enacting regulations in connection with construction and maintenance of vehicles.  Regulation 121 sets out the offences in the event of any breach of regulations, which are divided into 4 categories listed in the 4 subparagraphs under the said regulation.

19.  Both offences in the present case are under regulation 121(1).

20.  Words pertaining to knowledge or intent are neither used in regulation 121(1), nor in regulations 5(1)(b) and 89(3) which set out the requirements.

21.  It is worth noting that regulation 121(4) reads: “Any person who without lawful excuse defaces, damages or alters any taximeter commits an offence ……”.  The phrase “lawful excuse” does not appear in regulation 121(1).

22.  The offences concerned are related to the construction and maintenance of vehicles.  Obviously the purpose of enacting the regulations is to safeguardroad safety.  The degree of social disapproval against a breach of regulations is usually not severe.  Although the maximum penalty is a fine of $10,000 and imprisonment for 6 months, the usual penalty is simply a fine.

23.  What is important is that these offences are regulatory offences for the purpose of governing the construction of vehicles and the maintenance by users of vehicles in order to safeguard road safety.  For such purposes, it is both reasonable and appropriate to displace the presumption of mens rea.

24.  In my view, the aforesaid legislative purpose might be prejudiced if it is insisted that the prosecution must prove mens rea.  The presumption, therefore, should be displaced.

25.  While the Ordinance does not expressly provide for any defence, I have considered whether the common law defence, by which an accused can be exculpated, should be applied to these two offences.

26.  The mere fact that an offence is of regulatory nature is not a sufficient basis for the court to make a finding that it is an absolute liability offence for which no defence is allowed.  Such finding can only be made when it is supported by cogent justification.

27.  Mr. Tse submits that as the law has imposed the duty on the vehicle owner and the driver, they usually would entrust the duty of maintaining the vehicle to other persons, and that if they are allowed to rely on the honest and reasonable belief as a defence, it would be difficult to ensure that the purpose of the statute is achieved.

28.  I agree with this point of view.  I agree that the imposition of absolute liability is conducive to giving effect to the legislative purpose and in furtherance of the observance of the law by the general public.  If the common law defence is allowed to be applied to the offences concerned, the legislative purpose cannot be given full effect, particularly where the conduct or task which is the subject of the duty is in practice likely to be made or carried out by someone else.

29.  The consequences of imposing absolute liability are stringent ones.  However, based on the aforesaid cogent justification, I find that the two offences concerned are of absolute liability.  The prosecution is not required to prove that the accused had knowledge of the defects concerned.  The Ordinance does not expressly provide for any defence, nor is the common law defence applicable.

30.  Undoubtedly, in the present case, the appellant did use the taxi of which:

(1) Both side obligatory front lamp lenses were insecure;

(2) Off side front bumper was insecure;

(3) Off side obligatory front lamp was inoperative.

By reason of (1) and (2), the taxi failed to comply with regulation 5(1)(b).  By reason of (3), it failed to comply with regulation 89(3).

Conclusion

31.  In my judgment, the verdict given by the magistrate that the prosecution had proved all the necessary elements of the offences beyond any reasonable doubt is safe and satisfactory and cannot be faulted.  Accordingly, the appeal against convictions is dismissed.  The convictions of the two offences are upheld.

Appeal against Sentences

32.  The maximum penalty under the Ordinance is a fine of HK$10,000 and imprisonment for 6 months[4].

33.  In sentencing, the magistrate has considered the following points.  The appellant was a professional driver, earning a monthly income of around HK$6,000 to HK$7,000 and had to maintain his family.  The appellant had one previous conviction of a traffic offence, had once been disqualified from driving for 3 months by reason of having accumulated enough demerit points and had 11 fixed penalty records.  Although the nature of the previous records of the appellant is different from that of the present case, I have taken into account the fact that the appellant was a professional driver, the taxi driven by him would frequently, if not every day, travel on the road; and when its fittings did not comply with the regulations and its lamps were inoperative, it was certainly possible that other road users might have been affected to a certain extent.

34.  The consideration given by the magistrate was appropriate.  Nevertheless, having regard to the fact that the appellant was only a driver renting the taxi, and also having regard to the point that it was not easy to detect the defects discovered, which did not amount to an imminent, significant danger, I can see there is room to reduce the fines in respect of the two convictions totaling HK$4,200.  Accordingly, I allow the appellant’s appeal against the sentences.  The fine for each offence is now varied to HK$1,500 making a total of HK$3,000 for the two offences.

Translated by the Judgment Translation Unit of the Judiciary and vetted by Mr. P. Y. Lo, Barrister-at-law.