THE ATTORNEY GENERAL v. CHEUNG MAN WOON

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 920 OF 1988

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J U D G M E N T

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1. This is an appeal by way of case stated under Section 105 of the Magistrates Ordinance, Cap.227.

2. The learned magistrate has stated the case as follows:

"1. At the Magistrate's Court in the said Colony on the 22nd day of April 1988, an information preferred by the Attorney General (hereinafter called the Appellant), against CHEUHG Moan-woon (hereinafter called the Respondent) under Regulation 11(1) of the Road Traffic (Traffic Control) Regulations, Chapter 374 charging, for that he, the Respondent did commit the offence of crossing continuous double white line was heard and determined by me, and upon such hearing the said information was dismissed by me.

2. And whereas the Appellant being dissatisfied with my determination upon the hearing of the said information applied, pursuant to section 104 of the Magistrates Ordinance, to review my decision in the, matter. On the 12th day of May 1988 the review was heard by me, the Respondent being then absent and unrepresented, and upon such hearing I confirmed my decision to dismiss the said information.

3. And whereas the Appellant, being dissatisfied with my determination upon the hearing of the said review and alleging himself to be aggrieved by such determination as being erroneous in points of law has, pursuant to section 105 of the said Ordinance, duly applied to me in writing to state and sign a case setting forth the facts and the grounds of such determination as aforesaid in order that he may appeal therefrom to a judge of the High court.

4. Tow therefore I, the said Magistrate, in compliance with the said application and provision of the said Ordinance, do hereby state and sign the following case.

5. Upon the hearing of the information it was proved on the part of the Appellant or admitted by the Respondent, and found as a fact,that

(a) The location in question was the portion of Harbour Road near the Great Eagle Centre Public Carpark.

(b) There were four lances in that portion of the road and a set of continuous double white lines was marked between the eastbound and westbound traffic.

(c) The Respondent was the driver of van which was in a marked position on the eastbound inner lane just beyond the entrance to the Great Eagle Centre Carpark.

(d) The Respondent reversed the van backward into the carpark. The van had then completely left the road surface and was off the carriageway.

(e) The Respondent stopped there for about 10 seconds. He then drove across the continuous double white lines and turned right down the Harbour Road.

6.    I, being of opinion that the Respondent having reversed off the carriageway and then made a right turn out of a place adjacent to the carriageway had available to him the defence set out in regulation 11(3)(c) of the said Regulation:

(3) where continuous double white lines or a continuous white line with a broken white line is placed on a carriageway the driver of a vehicle may permit his vehicle to be on or over or across the continuous double white lines or continuous white line with a broken white line if it is necessary to do so in order -

a.    ..........

b.    .......

(c) subject to paragraph (4), to make a right turn into or out of any road, premises or place adjacent to the carriageway.

I was satisfied that the manoeuvre of the Respondent fell within regulation 11(3)(c) Accordingly, I acquitted the Respondent and dismissed the information.

7. The reasons for dismissing the information are as follows:

(a) Having reversed into the car park the Respondent was in the same position as a driver emerging from the car park and it would be artificial to distinguish between the driver who came out of the car park who could legally turn right across the double white lines and the driver who had reversed into the entrance who could not legally turn right across the double white lines.

(b) The main functions of double white lines arc to prevent dangerous overtaking and keep traffic in certain lanes in certain places, The Respondent manoeuvre did not offend either of these functions.

8. The questions of law arising on the above statement for the opinion of this Court therefore are:

FIRSTLY WHETHER I was correct in holding as a matter of law that the defence set out in regulation 11(3) (c) of the said Regulation was available to the Respondent once he had reversed into the entrance of the car park.

SECONDLY WHETHER I was correct in dismissing the case in the circumstances."

3. The appellant's argument at the hearing of the appeal can be dismissed as follows:

"(1) Exceptions to the regulation that a driver of a vehicle shall ensure that a vehicle does not cross continuous double white lines.

(i) r. 11(3)(a) & r. 11(3) (b) emergency and foreseeable situations which render the observance of the regulation impracticable.

(ii) r. 11(3)(c) provision for access to roads premises or place adjacent to a carriageway.

(2) The purpose of r. 11(3)(c) in to facilitate a vehicle to obtain access, to and from any roads, premises, or place, without having to travel longer distances than would otherwise be required,

(3) the only purpose of the Respondents manoeuvre in reversing backward into the carpark was to avoid the direct crossing of the double white line which was not allowed under the regulation.

(4) The provision of r. 11(3)(c) is intended for the actual user of the carpark not those who intend to make a quick U-turn. The legislation never intends to encourage people to use the carpark for U-turn.

(5) The learned magistrate failed to ascertain whether the Respondent's action was taken to defeat the purpose of the regulation."

4. There can be no doubt that once the defendant had reversed into the carpark entrance and was completely off the road, his action in driving across the road and crossing the double white lines and turning right would have been precisely the sane as that of any other driver leaving the carpark.

5. Paragraph (3) especially permits the crossing of the continuous white lines, if it is necessary to do so in order to make aright turnout of premises adjacent to the carriageway The Defendant was making a right turn out of the premises adjacent to the carriageway. It is true that he was originally parked on the carriageway inside lane: before he reversed backward into the carpark entrance, but there was a period of ten seconds before he moved out of the carpark.

6. Miss Chan argues (3) that the only purpose of the respondent's manoeuvre in reversing backward into the carpark was to avoid the direct crossing of the double white line which was not allowed under the regulation.

7. With respect that it is not clear from the admitted facts which could be interpreted in a number of different ways depending upon the answer to further questions. The admitted facts, for instance could be consistent with a person having intended to go into the carpark but having driven too far on the main carriageway, who therefore backed into the carpark but was not allowed to go further. The body of the admitted acts could look different according to the clothing, put upon hat body by additional factors. Indeed the Respondent at the hearing of the appeal made a suggestion which apparently had not been made before the magistrate that he was off-loading goods in the carpark which it was his duty to deliver.

    (4) of Miss Chan's argument is irrelevent because there is no charge of making a u-turn. Furthermore, in paragraph (5), of her argument, Miss Chan complains that the magistrate failed to ascertain whether the Respondent's action was taken to defeat the purpose of the regulation. However it was not incumbent on the magistrate to ascertain anything at all. The onus of proving what had to he proved was on the prosecution.

8. Two cases had been cited to me by Miss Chan, the first is Tony Chau Ki-wai Criminal Appeal 776 of 1984, a decision of Nazareth J. concerning a breach of a "No U-turn" sign.

9. In that case the findings were disputed that the appellant drove down Fortress Hill Road, where there was a "No U-turn" sign, he then turned right across the road into the entrance of a parking building without actually entering the building, he quickly off loaded a passenger, reversed into the road and then immediately drove back along Fortress Hill Road in the direction from which he had come.

10. Counsel for the appellant submitted at the trial that because the turn was not executed in one sweep of the steering wheel, it could not be a U-turn. The magistrate rejected this argument on the basis that the effect of his manoeuvre was that he had made a U-turn. Nazareth J. upheld the magistrate and stated that he was guided by the matter of fact approach approved by Michael Davies J. and Lord Lane C. J. in Gouldie v. Pringle [1981] R.T.R. 525.

11. The facts of Gouldie's case are set out in the report as follows:

"The Defendant, who drove a motor car along. Claypits Lane in Dibden, Hampshire, passed "No right turn signs before and at its junction with Hythe by-pass. He turned left out of Claypits Lane into an acceleration lane on the Hythe by-pass and drove along it for some 60 yards, where he executed a U-turn safely and continued driving in the correct position on the carriageway, He was charged with malting a right-hand turn into the Hythe by pass ........ justices were of the opinion that the manoeuvre executed by the defendant was not prohibited so that he did not contravene the (Law) and the information was dismissed.

On appeal by the prosecution it was held dismissing the appeal that, the acceleration lane being part of the main carriageway of the by-pass, the question whether the defendant's manoeuvre was in breach of the order was a question of fact and degree for the justices and that since the justices had come to their conclusion from the facts which they were entitled to find on the evidence, it was impossible to fault their finding_.."

12. Following that it could be said that the question of whether the manoeuvre of the respondent constituted a breach of the regulation concerned was a question of fact and degree for the magistrate.

13. However the Law in Hong Kong specifically permits a driver to cross continuous doable white lines if it is necessary to do so in order to make a right turn out of any premises or place adjacent to the carriageway. It doesn't provide any distinction between the person who has temporarily placed himself on premises adjacent to the carriageway or a person who has been there for some duration. It doesn't qualify at all the purpose for which the driver entered the premises adjacent to the carriageway.

14. I think the magistrate was right in deciding that the appellant's maneouvre in turning right on coming out of the Eagle Centre Carpark falls within the defence provided by the regulation.

15. It may well be that the respondent's action in reversing into the carpark breached some other regulation, but I am not concerned with that.

16. My answer to the magistrate's questions are (1) Yes, (2) Yes.