HKSAR v. LURAKA EVENTS AGENCY LTD

HCMA 294/2018

[2019] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 294 OF 2018

(On appeal from ESS No 7192/2018)

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J U D G M E N T

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1.  The appellant was summonsed for failing to give information on demand, contrary to section 63(1)(a) and 6(a) of the Road Traffic Ordinance (Cap 374).  The appellant was convicted after trial and fined $2,500.  The appellant now appeals against the conviction.

2.  At the trial, the appellant was not legally represented, but represented by the company’s representative, Mr Razgallah Lucas.  He also represents the appellant in this appeal.

PROSECUTION CASE

3.  The case concerns the appellant’s failure to provide the information of the driver of a motorcycle which was suspected of committing a traffic offence.  The prosecution case was sufficiently summarised by the deputy magistrate (“the magistrate”) in his Statement of Findings. I will just quote the more relevant parts:

“(2) The defendant is the registered owner of a motorcycle with registration marked UR2261 (the motorcycle).

(3) The prosecution relies on the evidence of the driver of a vehicle with registration marked EB8217 (PW1) and a police officer (PW2).

(4) At the material time, on 4th September 2017, PW1 was driving his vehicle along Connaught Road Central and saw the motorcycle being driven by an unidentified driver and crossing the continuous double white lines on the road twice, near to Exchange Square and City Hall respectively.

(5) The video camera installed in the vehicle of PW1 captured the above incident. PW1 reported it to the police which made inquiries into the identity of the driver of the motorcycle at the time of incident.

(6) By two separate notices dated 19 September and 17 October 2017, (Exhibit P2 and P3), the defendant informed the police that according to its records, no one used the motorcycle at the material time.

(7) The above facts are not disputed or challenged in a material way by the defence.  They are supported by an undisputed compact disc (Exhibit P1) showing the video captured by the camera in PW1’s vehicle”

DEFENCE CASE

4.  The magistrate stated that the defence case was that at the time of the incident, no one used the motorcycle.  And it was on this basis that the appellant was unable to provide the particulars of the driver.  The appellant elected not to call witnesses.  The magistrate noted that the appellant had a clear record.  

REASONS FOR CONVICTION

5.  The magistrate found that there was no evidence of the appellant’s record about the motorcycle.  The magistrate refused to accept the statements made in Exhibits P2 and P3 to be correct.  The magistrate noted that there was no evidence adduced to establish the statutory defence under section 63(5) of the Road Traffic Ordinance and, in particular, there was no evidence to show that the appellant had used any endeavour to ascertain the identity of the driver of the motorcycle at the material time.  The magistrate was satisfied beyond reasonable doubt that all the elements of the charge had been proved. The appellant was therefore convicted.

GROUNDS OF APPEAL

6.  Mr Lucas represents the appellant in the appeal.  At the hearing on 21 December 2018, he made three points as his reasons of the appeal: first, on the material day, the motorcycle was kept in storage and not driven by anyone on the road; second, he was told by a police officer to leave the particulars of driver blank in the notice that he returned; third, the magistrate refused to receive the photographs of the motorcycle as evidence.

7.  The last point of the appellant caused my concern about the fairness of the trial. I, therefore, adjourned the case to today to call for the transcript of the proceedings.  The transcript has been obtained and served on the appellant. The transcript shows that the magistrate did not refuse to receive the photographs as evidence.  The photographs were not produced as evidence as Mr Lucas elected not to give evidence and the prosecution did not agree to its production.

8.  The grievance of Mr Lucas is that if the magistrate was not going to accept the photographs as evidence, why did he ask him to go to the storage place to take photographs of the motorcycle, causing troubles to him and wasting his time.  As can be seen in the transcript, the appellant disputed whether the motorcycle captured in PW1’s video was the appellant’s motorcycle.  This was a relevant matter that the magistrate needed to consider.  The magistrate was only helpful to ask Mr Lucas whether he had photographs of the motorcycle, apparently for him to see if it looked different from the motorcycle captured in the video of PW1.  Mr Lucas said he did not and he asked the court to allow him to go take photographs of it.  The magistrate entertained the request and adjourned the case, quite properly in my view, although delay was inevitably caused to the trial and also to the prosecution’s witnesses, one of which being a civilian.

9.  It was not a suggestion or advice of the magistrate that Mr Lucas should go take photographs.  Apparently, Mr Lucas returned to court later on the same day with some photographs and videos.  They were, however, not produced as evidence as Mr Lucas eventually elected not to give evidence nor to call witnesses, including himself.  The photographs and videos therefore could not be admitted as admissible evidence.

10.  I have gone through the transcript.  The magistrate obviously understood his duty to assist an unrepresented defendant.  He explained at the beginning of the trial the procedures and the legal burden of proof, in particular that a statutory defence was open to the appellant and the burden to prove it was on the appellant.  The magistrate explained to the appellant of the right to call witnesses and emphasized that what Mr Lucas had said, not being given on oath in the witness box, was not evidence of the case.  On the other hand, the magistrate explained that no adverse inference would be drawn against the appellant for the election not to call evidence.  Mr Lucas said he understood the appellant’s rights and decided not to call witnesses.  The magistrate repeated again that he should think carefully because if the appellant wanted to rely on the statutory defence, the appellant might need to give evidence to support the defence.  It was again emphasized that what Mr Lucas had told the court was not evidence of the case.  Mr Lucas indicated again he understood and confirmed the election not to give evidence.

11.  Mr Lucas today tells the court that he did not understand the explanation by the magistrate.  I do appreciate that the appellant was not legally represented at the trial.  However, the magistrate cannot be criticised when he tried his best to explain to the appellant’s representative, who confirmed he understood the magistrate’s explanation.  The magistrate only had the duty to assist, but not to advise an unrepresented defendant what he should or should not do as a tactic in defending the case.

12.  The appellant’s representative alleged that he was advised by a police officer during a telephone inquiry not to fill the details of the driver in the notice he returned.  PW2, SPC58089, was the officer responsible for the preparation and receipt of the notices requiring the identification of driver issued under section 63 of the Road Traffic Ordinance.  He testified that he had contacted a person of the appellant company.  However, the allegation of the appellant was not put to PW2 when he gave evidence.

13.  In any event, I do not think the allegation, whether true or not, can assist the defence.  It was the defence case that the motorcycle was kept in storage and hence not driven on the road on the material day.  So no one was driving the vehicle.  Whatever advice had been given to the appellant, the information to be given to the police, based on the defence, would be, at the time of the alleged traffic offence, no one was driving the motorcycle.  And, therefore, no particulars of the driver could be provided.  On that basis, the appellant would still have been summonsed for the offence as it failed to provide the particulars of the driver as required by law.  The appellant had a defence under section 63(5) of the Road Traffic Ordinance if he could prove: (1) he did not know; and (2) could not, with reasonable diligence, have ascertained the relevant particulars of the driver concerned.

14.  At the trial, the appellant elected not to give evidence in support of this statutory defence.  In the absence of evidence from the appellant, the magistrate cannot be faulted to find that the statutory defence could not be established.  He was also entitled to disbelieve the statements written in the two notices that the motorcycle was not used on the material day, as it was not evidence given in the witness box.

15.  Mr Lucas repeatedly says today that he did not understand what the magistrate explained to him and he was confused.  That appears to be inconsistent with what is shown in the transcript of the proceedings.  In any event, while the magistrate was under a duty to assist the appellant so as to ensure that the unrepresented appellant received a fair trial, it was not the magistrate’s duty to tell the appellant how to exercise his rights.  The appellant did not appear to misunderstand the magistrate.  An advice to give evidence might probably just encourage perjury in the witness box.

CONCLUSION

16.  For the reasons given, the conviction is neither unsafe nor unsatisfactory.  The appeal is therefore dismissed.