HKSAR v. NG TZE KIN (吳子健)

FAMC No. 48 of 2025

[2026] HKCFA 16

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 48 OF 2025 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA NO. 351 OF 2023)

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REASONS FOR DETERMINATION

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Mr Justice Fok PJ:

1. We dismissed this application for leave to appeal after hearing counsel for the applicant, indicating that we would hand down our reasons for doing so in due course.

2.  The applicant was convicted, after trial on 6 September 2023, by a magistrate of a charge of driving a car, whilst being a holder of a probationary driving licence, without fixing a plate (known as a “P” plate) in accordance with regulation 12K and the Thirteenth Schedule of the Road Traffic (Driving Licences) Regulations (Cap.374B) (“the Regulations”).[1] He was fined HK$1,000 for the offence.  His appeal against conviction to the Court of First Instance was dismissed by the judge.[2]

3.  The charge was based on the prosecution’s case that there was no “P” plate fixed on the left-hand side of the rear windscreen of the vehicle the applicant was driving (bearing registration number NM6135) (“the car”).

4.  Regulation 12K of the Regulations materially provides:

“(1) The holder of a probationary driving licence shall not drive a motor vehicle of a class specified in the licence unless –

(a) in the case of a probationary driving licence to drive a private car or light goods vehicle, the motor vehicle has –

…

(ii) a Small Plate securely fixed at the rear of the motor vehicle, or on the left-hand side of the rear windscreen of the motor vehicle, in such a manner that the Plate is clearly visible from the rear of the motor vehicle;

…”.

5.  The magistrate found that there was no “P” plate fixed to the rear windscreen of the car.  If, however, there was such a plate so fixed, it was not fixed on the left-hand side of the rear windscreen.[3] Accordingly, the magistrate convicted the applicant.

6.  On appeal, the judge noted that the evidence of where there might have been a “P” plate fixed on the car was unclear but it was possible that a “P” plate was fixed to the right-hand side of the rear windscreen.[4]

7.  This was relevant to the applicant’s argument on appeal, which he had also advanced before the magistrate, that in requiring a “P” plate to be fixed either at the rear of the vehicle or on the left-hand side of the rear windscreen, regulation 12K could be complied with by fixing a “P” plate to the right-hand side of the rear windscreen because that would comply with the obligation to fix such a plate “at the rear of the motor vehicle”.  On that interpretation of regulation 12K, the applicant could not be guilty of the offence charged.

8.  As was the case before the magistrate, this argument was not accepted by the judge and formed the basis of the applicant’s application for leave to appeal to the Court of Final Appeal on the basis that questions of law of great and general importance are involved in the appeal.  The questions said to arise were:

“Question 1: On a proper construction of Regulation 12K(1)(a) of the Road Traffic (Driving Licences) Regulations (Cap 374B), whether the condition is satisfied if a Small Plate is fixed at the rear of the motor vehicle, notwithstanding it is also on the rear windscreen of the motor vehicle, and in a manner that the Plate is clearly visible from the rear of the motor vehicle?

Question 2: In construing Regulation 12K(1)(a), whether ‘on the left-hand side of the rear windscreen of the motor vehicle’ operates as an implied exclusion to ‘rear of the motor vehicle’?

Question 3: In construing Regulation 12K(1)(a), whether ‘rear of the vehicle’ bears the same meaning in Regulations 12K(1)(b) and 12K(1)(c)?”

9.  As so framed, Question 1 is ambiguous.  On one reading, it is based on a false premise.  There was no finding that the “P” plate in this case was fixed at the rear of the car and also on the rear windscreen of the motor vehicle.  That is to say, there was no finding that there were two separate “P” plates.  Had there been plates in both those places, the plate “at the rear of the motor vehicle” would have satisfied the statutory requirement regardless of which side of the windscreen the other plate was fixed.  Mr Gordon Chan, counsel for the applicant, disavowed any argument that there were two separate “P” plates fixed at or on the car in this case.

10.  Instead, Question 1 is advanced on the premise of the applicant’s argument summarised at [7] above, namely that a “P” plate fixed on the rear windscreen of the motor vehicle can comply with regulation 12K(1)(a) even if it is fixed on the right-hand side of the motor vehicle (and provided, of course, that it is clearly visible from the rear of the vehicle).  On that understanding of Question 1, it is clear that Question 2 is simply asking the same question in a different form.

11.  The argument persisted in before us on behalf of the applicant is not reasonably arguable.  As the judge below held,[5] the word “or” provides for two different and mutually exclusive options.  Either the “P” plate is fixed at the rear of the vehicle other than on the rear windscreen or it is fixed on the left-hand side of the rear windscreen.  In either case, it must, of course, be clearly visible from the rear of the vehicle, i.e. to someone looking at the car from behind it.  As both the magistrate[6] and judge[7] held, the phrase “at the rear of the motor vehicle” cannot include the rear windscreen because otherwise the phrase “on the left-hand side of the rear windscreen” would be redundant and meaningless.

12.  The statutory purposes of the Road Traffic Ordinance (Cap.374) and its related subsidiary legislation are broad and serve a number of aims.[8] In the present case, the primary purpose of regulation 12K(1)(a) and the fixing of a “P” plate so that it is clearly visible from the front and rear of the vehicle is road safety and protection of the public.  This is to be achieved by the clear designation of a particular road user as a holder of a probationary driving licence and therefore someone in respect of whom additional care and attention should be given.

13.  Given that statutory purpose, it is clear that the regulation should be read as requiring strict compliance as regards the placement of the “P” plates.  A requirement to fix such a plate “on the left-hand side of the rear windscreen” necessarily carries the implication that placement on the right-hand side will not comply.  This is an instance of the principle of construction conveyed by the Latin maxim expressio unius est exclusio alterius.  The alternative of fixing the plate “at the rear of the motor vehicle” is plainly intended to refer to some place other than the windscreen. Otherwise, as the learned judge held, it would mean that the words “or on the left-hand side of the rear windscreen” were redundant.[9]

14.  In either case, the plate must be clearly visible from the rear of (i.e. behind) the vehicle.  The context of the regulation includes the fact that Hong Kong is a driving jurisdiction in which the vast majority of vehicles are driven on the left-hand side of the road,[10] so that a plate fixed to the left-hand side of the vehicle’s rear windscreen will not obstruct the line of sight of the driver of the vehicle (looking out of the rear windscreen) or the driver of a following vehicle (looking forward towards the rear windscreen of the vehicle in question).

15.  As a matter of context and statutory purpose, therefore, the applicant’s construction argument is without any merit and does not satisfy the threshold requirement for leave to appeal of being reasonably arguable.  The judge was right to refuse to issue a certificate that a point of law of great and general importance was involved in the appeal for this reason.[11]

16.  Question 3 is not a question arising in this proposed appeal, since the regulations in question (regulation 12K(1)(b) and regulation 12K(1)(c)) relate to different types of vehicles, namely motor cycles and motor tricycles, which are physically different to motor vehicles and in respect of which the regulations specify places for the fixing of “P” plates in a different manner and using different wording to that in regulation 12K(1)(a).  In any event, even taking those other regulations into account, the applicant’s construction argument is untenable as explained above.

17.  The applicant’s additional contentions that substantial and grave injustice has been done to him provide no proper ground for the grant of leave to appeal. 

18.  The first point advanced relates to the construction of regulation 12K(1)(a) and, as noted above, the construction of that regulation put forward by the applicant is untenable.

19.  The second point advanced relates to the applicant’s reliance on regulation 12K(1)(b) and regulation 12K(1)(c), which are the basis of Question 3.  It is suggested that the prosecution wrongly relied on a false factual premise below, namely that motorcycles do not have rear windscreens, and therefore this has contributed to an erroneous construction of regulation 12K(1)(a).  Since the applicant’s asserted construction of regulation 12K(1)(a) is flawed, for the reasons already explained, this further argument adds nothing.

20.  For these reasons, we dismissed the application for leave to appeal.