HKSAR v. LAU KOK LAM

HCMA513/98

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.513 OF 1998

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J U D G M E N T

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1. The Appellant was convicted after trial by the learned Magistrate of driving an unregistered and unlicensed motor vehicle, contrary to s.52 (1)(a) and s.52 (10)(a) of the Road Traffic Ordinance, Cap.374. The Appellant was also convicted of a second charge of using a motor vehicle whilst uninsured, contrary to ss.4(1) and 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap.272, and of a third charge of failing to comply with a road sign, contrary to Regs.59(1)(b) and 61(1) of the Road Traffic (Traffic Control) Regulations made under the Road Traffic Ordinance.

2. The prosecution's case was that on 3rd September 1997, a uniformed police officer, whilst on patrol at the junction of Jordan Road and Canton Road, saw the Appellant driving a motorcycle FT 685 on the nearside lane of Jordan Road headed towards Nathan Road. When the Appellant came to the junction with Canton Road, instead of turning left into Canton Road, as all vehicles must do on that nearside lane of Jordan Road, the Appellant went straight on crossing the intersection. The constable thereupon stopped the Appellant.

3. Upon checking with the Console, the constable learned that motorcycle FT 685 had not been registered with the Transport Department. And when asked, the Appellant told the constable that he did not have a valid third party insurance for the motorcycle. The Appellant was thereupon taken back to the Yaumatei Police Station for enquiries. Further enquiries with the Transport Department revealed that the vehicle licence for FT685 had been cancelled on 21st April 1997.

4. The Appellant appeared at the trial before the learned Magistrate in person and defended himself. In cross-examination of the constable, the Appellant suggested to the constable that on the day in question the road markings on the nearside lane of Jordan Road, on which he was travelling, was such that it permitted motorists to either turn left at Canton Road or to go straight on. The constable, however, denied that this was the case. The constable also denied that the Appellant had said to him that he could either go straight forward or turn left after he was stopped by the constable. It was also suggested to the constable by the Appellant in cross-examination that the constable was informed by his senior to catch the Appellant because the motorcycle was bought from the Government by the Appellant.

5. The Appellant declined to give evidence in his own defence before the learned Magistrate. The learned Magistrate accepted the evidence of the constable as to the road markings at the material time, and also accepted that the Appellant failed to comply with such road markings. The learned Magistrate also found as a fact that the Appellant had no reasonable excuse for failing to comply with such road markings, and thereupon convicted the Appellant for failing to comply with the road sign.

6. Furthermore, based on the principle of negative averment, the learned Magistrate correctly took the view that it was for the Appellant to prove, on balance, that there were valid licence and valid third party insurance for the motorcycle FT 685. The Appellant's failure to adduce any such evidence resulted in the learned Magistrate convicting the Appellant on both those charges.

7. Having read the Reasons for Finding by the learned Magistrate and having heard the Appellant this morning, I can see no good reason to interfere with those findings and conclusion arrived at by the learned Magistrate. Accordingly the appeal by this Appellant against his conviction on all three charges are dismissed.