R. v. WILLIAM ALAN TERENCE CRAWLEY

MA No. 909 of 1993

H E A D N O T E

Section 14(1) of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) ("the Ordinance"), which makes the registered owner of a motor vehicle liable to pay the fixed penalty for a contravention of the Ordinance even if he was not driving or in charge of the motor vehicle when the contravention was committed, is not inconsistent with Art. 11(1) of the Bill of Rights.

The difference in treatment between motor vehicles owned by the Crown and other vehicles provided for by sections 3(2) and 14(1) of the Ordinance is not inconsistent with Arts. 10 and 22 of the Bill of Rights.

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY CRIMINAL APPEAL NO. 909 OF 1993

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J U D G M E N T

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INTRODUCTION

1. One evening last February, a police officer saw a number of vehicles parked by the off side kerb of a one-way street. He took the view that they were causing an obstruction. He therefore left fixed penalty notices on them.

2. However, what the police officer had not allowed for was that the registered owner of one of the vehicles was the Appellant, Mr. W.A.T. Crawley. Mr. Crawley believes that it is wrong for the registered owners of vehicles which cause an obstruction to be liable to pay the fixed penalty. He is convinced that liability should remain with the driver or the person in charge of the vehicle at the relevant time, who was, after all, the person responsible for causing the obstruction in the first place. The fact that it will, in many cases, be impossible for the Crown to prove who was the driver or the person in charge of the vehicle at the time is a matter which Mr. Crawley discounts as immaterial: justice, he claims, should not be sacrificed to expediency. He also believes that it is wrong that the Crown should be treated differently from other owners of motor vehicles. Why, he asks rhetorically, should the person liable for the payment of the fixed penalty in respect of vehicles owned by the Crown be the driver of the vehicle at the time the obstruction was caused?

3. To enable his beliefs to be tested, Mr. Crawley declined to pay the fixed penalty demanded, and notified the Commissioner of Police, on the appropriate form, that he wished to dispute his liability for payment of it. The magistrate before whom Mr. Crawley subsequently appeared at San Po Kong Magistrates' Court on 28th October 1993 did not share Mr. Crawley's belief. She found that a contravention of section 4 of the Fixed Penalty (Traffic Contraventions) Ordinance (Cap. 237) ("the FPTCO") had taken place, and that as the registered owner of the vehicle, Mr. Crawley was, pursuant to section 14(1) of the FPTCO, liable for the fixed penalty of $200.00. She ordered him to pay it. Mr. Crawley now appeals from both these findings.

4. I confess that there were times in the course of the hearing of the appeal when I thought Mr. Crawley was winding me up. I do not recall the last time that Magna Carta was cited on an appeal from findings in a magistrates' court - certainly not in connection with a parking "offence". But in the end I had no doubt that Mr. Crawley, though obviously enjoying his day in court, was genuine in his belief that important questions of principle were raised by his appeal, and I deal with his appeal, therefore, entirely on its merits.

5. There was, however, an irony at the heart of the appeal. If Mr. Crawley had had his way, the questions of principle which Mr. Crawley wanted to raise would not have been decided at all. That is because Mr. Crawley disputes that his car caused an obstruction. If his appeal is allowed on that basis, the question whether registered owners of motor vehicles should be liable to pay the fixed penalty demanded becomes wholly academic - as does the question whether the difference in treatment between vehicles owned by the Crown and other vehicles is discriminatory.

THE FACTS

6. I take the facts from the magistrate's Statement of Findings, from the unchallenged evidence of the police officer, and from two plans and four photographs, the contents of which were undisputed. The road in which Mr. Crawley's vehicle was parked was Yi Ching Lane in Shatin. It is a one-way street with two lanes of traffic. Mr. Crawley's vehicle was parked in the right hand lane. The kerb was therefore on its off side. Another motor car and a light goods vehicle were parked immediately behind it. The presence of these three vehicles on the road meant that access along Yi Ching Lane could only be had along the left hand lane. The police officer's unchallenged evidence was that this was "where people always contravened regulations". I take it that he meant by that that vehicles were often parked there.

7. On the left hand side of Yi Ching Lane is the Royal Park Hotel. To the right of Yi Ching Lane is Pak Hok Ting Street, which is a three-lane one-way street with the traffic going in the same direction as that in Yi Ching Lane. At the time Mr. Crawley's car was seen by the police officer, there was a tourist bus outside the hotel in the left hand lane of Yi Ching Lane. Its front was almost level with the rear of the light goods vehicle in the right hand lane. Access along Yi Ching Lane was therefore completely blocked: cars could not overtake the tourist bus because the position of the light goods vehicle did not give a vehicle overtaking the tourist bus sufficient room to return to the left hand lane.

OBSTRUCTION

8. Section 4 of the FPTCO provides :-

"No person shall cause or permit any motor vehicle to stand on a road in such a position or in such condition or in such circumstances as to be likely to cause any unnecessary obstruction of such road or danger to other persons using the road."

Mr. Crawley did not give evidence or call any witnesses, nor did he suggest to the police officer in cross-examination that there was any need, for example because of an emergency or roadworks, for his car to be parked where it had been. There was therefore nothing necessary about the obstruction, and the only issue as to whether there had been a contravention of section 4 was whether Mr. Crawley's car had been parked "in such a position... as to be likely to cause [an] ... obstruction of" Yi Ching Lane.

9. Three points were taken by Mr. Crawley :

(i) He claims that his car was not causing an obstruction because even if access along Yi Ching Lane was blocked, access could still be afforded to traffic travelling in the same direction along Pak Hok Ting Street.

That argument was rightly rejected by the magistrate. She relied on her local knowledge, unchallenged by Mr. Crawley, that Yi Ching Lane is the only road which affords access to the Shatin Magistracy. If Yi Ching Lane was blocked, vehicles could not get to the magistracy at all.

(ii) Mr. Crawley argues that the real reason why Yi Ching Lane was blocked was because the tourist bus was blocking the left hand lane, and the position of the light goods vehicle prevented cars from overtaking the bus in the right land lane. That is correct, but the issue is not what caused Yi Ching Lane to be blocked, but whether Mr. Crawley's car was likely to cause an obstruction. The fact is that although other vehicles might have been preventing access through Yi Ching Lane, Mr. Crawley's car was parked in the right hand lane, and it was therefore an obstruction (albeit along with other vehicles) to cars being driven in that lane.

(iii) The photographs showed that next to the kerb on the left hand lane a single yellow line ended well before the tourist bus had stopped. A single yellow line means that vehicles are not permitted to stop at the time shown on the time plate. Moreover, at the point where the single yellow line ended, there was a traffic sign for the ending of the prohibition on stopping. Mr. Crawley relies on the ending of the yellow line and the traffic sign to show that parking beyond that point was permitted. However, the fact that vehicles are allowed to stop at a particular point of the road does not mean that they are permitted to park there. Indeed, there is an absolute prohibition in Hong Kong upon parking "a motor vehicle on any road on which there is a system of street lighting furnished by means of lamps not more than 200 metres apart other than in a parking place": section 7(1) of the FPTCO. I can see from the photographs that there is in Yi Ching Lane a system of street lighting furnished by means of lamps not more than 200 metres apart.

As to whether Mr. Crawley's car was parked in a "parking place", the term "parking place" is not defined in the FPTCO, but reg. 2(1) of the Road Traffic (Parking) Regulations, made pursuant to section 12 of the Road Traffic Ordinance (Cap. 374), defines a "parking place" as "a place designated by the Commissioner [for Transport] in accordance with regulation 5 as a place where vehicles may be parked." The place where Mr. Crawley's car was parked had not been so designated.

10. In interpreting statutory provisions not dissimilar to section 4 of the FPTCO, courts in the United Kingdom have held that an obstruction will only be caused if there is an unreasonable use of the road by the person stopping or parking his vehicle: see Gill v. Carson and Nield [1917] 2 KB 674 and Nagy v. Weston [1965] 1 WLR 280. Despite that, I have no doubt that the magistrate was entitled to find that Mr. Crawley's car was parked in such a position as to be likely to cause an obstruction of Yi Ching Lane. Vehicles being driven along the right hand lane of Yi Ching Lane would have had to change lanes to avoid Mr. Crawley's car and the other vehicles in the right hand lane. It is an unreasonable use of the road if a vehicle's stationary presence on the road (albeit along with other vehicles) prevents yet other vehicles from using that stretch of the road.

THE LIABILITY OF THE REGISTERED OWNER

11. Section 14(1) of the FPTCO provides :-

"Subject to section 3(2), the person liable for the fixed penalty... shall be the registered owner for the time being of the motor vehicle when the contravention is committed."

The exception in section 3(2) relates to motor vehicles owed by the Crown. Where a contravention is committed in respect of such a vehicle, "the person liable for the fixed penalty shall be the driver of the motor vehicle at the time the contravention is committed." Mr. Crawley argues that section 14(1) does not admit of a construction consistent with the Hong Kong Bill of Rights Ordinance (Cap. 383) ("the Bill of Rights"). The two Articles of the Bill of Rights with which section 14(1) is said to be inconsistent are Arts. 10 and 11(1).

(1) Article 10

12. Mr. Crawley relies on the first sentence of Art. 10. It reads: "All persons shall be equal before the courts and tribunals". Mr. Crawley maintains that section 14(1) of the FPTCO is inconsistent with Art. 10 because the Crown is given preferential and discriminatory treatment by the FPTCO. Unlike the owners of other motor vehicles, the Crown is not liable to pay the fixed penalty in respect of contraventions of the FPTCO.

13. Mr. Crawley's reliance on Art. 10 is wholly misconceived. The discrimination of which he complains has nothing to do with equality "before the courts and tribunals." His complaint relates to a lack of equality under the law. To the extent that equality under the law is protected by the Bill of Rights, it is protected by Art. 22, which read s :-

"All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status."

I propose, therefore, to treat Art. 22 as being the true basis of Mr. Crawley's complaint of preferential and discriminatory treatment.

14. The FPTCO seeks to promote the free flow of traffic by providing a regime for the parking of motor vehicles. The provisions in the FPTCO for the payment of a fixed penalty create a comprehensive scheme for the imposition of sanctions for contraventions of the FPTCO. The imposition of liability in section 14(1) of the FPTCO on registered owners to pay the fixed penalty represents an attempt to obviate the need to prove who the person driving or in charge of the vehicle at the relevant time actually was - proof of which could be time-consuming, expensive and sometimes impossible.

15. The leading case on preferential and discriminatory treatment in the context of the Bill of Rights is the judgment of the Court of Appeal in R. v. Man Wai-keung (No. 2) [1992] 2 HKCLR 207. The principle was pithily expressed by Bokhary J. (as he then was) at p. 217 :-

"Clearly, there is no requirement of literal equality in the sense of unrelentingly identical treatment always. For such rigidity would subvert rather than promote true even-handedness. So that, in certain circumstances, a departure from literal equality would be a legitimate course and, indeed, the only legitimate course. But the starting point is identical treatment. And any departure therefrom must be justified. To justify such a departure it must be shown : one, that sensible and fair-minded people would recognize a genuine need for some difference of treatment; two, that the difference embodied in the particular departure selected to meet that need is itself rational; and, three, that such departure is proportionate to such need."

16. I have no doubt that the difference in treatment between vehicles owned by the Crown and other vehicles satisfies these criteria. Sensible and fair-minded people would recognise the need to treat them differently. The absence of an exception for vehicles owned by the Crown would result in the Crown having to pay the fixed penalty to itself, and then recover the sums from the driver concerned. I agree with Mr. Bailey for the Crown that that would be administratively inefficient, expensive and offer no benefit to the community. Moreover, unlike the majority of privately registered vehicles, there would be no difficulty in identifying the driver of a vehicle at the time of contravention. Log sheets are maintained for vehicles owned by the Crown, and it is therefore a simple matter to identify who was responsible for a particular vehicle at a given time. The difference in treatment is, in my view, both rational and proportionate to the need which justifies it.

17. I should add that there is another irony at play here. Had I found that the difference in treatment was not justified, a contravention of Art. 22 would not have assisted Mr. Crawley. By section 3(2) of the Bill of Rights, pre-existing legislation which does not admit of a construction consistent with the Bill of Rights is deemed to have been repealed on 8th June 1991 when the Bill of Rights came into force "to the extent of the inconsistency." Accordingly, any repeal effected by the Bill of Rights to remove the preferential and discriminatory treatment of vehicles owned by the Crown would be limited to that which was necessary to remove the discrimination, i.e. the repeal of section 3(2), and the opening words of section 14(1), of the FPTCO. The repeal of these discriminatory provisions would not have affected Mr. Crawley's position at all. He would have remained liable to pay the fixed penalty as the registered owner of the vehicle at the time of the contravention.

(2) Article 11(1)

18. Article 11(1) reads:

"Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law".

Mr. Crawley maintains that section 14(1) of the FPTCO is inconsistent with Art. 11(1) because registered owners of motor vehicles are made liable to pay the fixed penalty irrespective of whether they were responsible for the contravention which gave rise to the fixed penalty. That is because section 14(2) of the FPTCO provides :-

"In any proceedings for recovery of the fixed penalty, it shall be no defence (a) that the contravention was committed without the knowledge or consent of the registered owner, or (b) that at the time the contravention was committed the motor vehicle was driven by or was in charge of a person other than the registered owner."

19. It is a little rich for Mr. Crawley to be making this submission. It is quite true that there was no evidence that he had been driving his car at the relevant time, and therefore no evidence that he was responsible for the contravention which gave rise to the fixed penalty. But in the hearing in the magistrates' court, Mr. Crawley dropped his guard for one moment, because he was recorded by the magistrate as saying, when he was submitting no case to answer, "I was there first. I did not cause any obstruction." He said that in the context of his argument that if there was an obstruction, it was being caused by the tourist bus. If the magistrate's notes are anything to go by, Mr. Crawley was admitting, admittedly not in evidence, that it was he who had parked his car where it was. Despite that, however, I propose to deal with the submission on its merits.

20. In my judgment, Art. 11(1) is of no relevance whatever to the point which Mr. Crawley makes. The presumption of innocence preserved by Art. 11(1) would have been material if the issue had been whether Mr. Crawley had been driving or in charge of his car at the time. The presumption of innocence would have meant that until the contrary was proved, Mr. Crawley would have been presumed not to have been driving or in charge of his car at the relevant time. What the presumption of innocence has nothing whatever to do with is Mr. Crawley's complaint that "you shouldn't be penalised for something you haven't done.". In that connection, I have not been able to find any Article in the Bill of Rights which prevents an Ordinance providing for the imposition of a financial penalty upon a person who did not personally commit the contravention for which the penalty is being imposed. But that does not produce an injustice in the case of the FPTCO. That is because section 24 of the FPTCO enables the registered owner to recover summarily as a civil debt the sum paid from the person who was driving or in charge of the vehicle when the contravention was committed.

21. However, there is another reason why Art. ll(1) cannot be relied on by Mr. Crawley. Art. ll(1) only applies to a person "charged with a criminal offence." Mr. Crawley was not charged with a criminal offence because a contravention of section 4 of the FPTCO is not a criminal offence. that is the inescapable conclusion to be drawn from a comparison between the FPTCO and the Fixed Penalty (Criminal Proceedings) Ordinance )Cap.

240) ("the FPCPO"). Moreover, the fact that there is an Ordinance entitled the Fixed Penalty (Criminal Proceedings) Ordinance suggests that contraventions of the Ordinance entitled the Fixed Penalty (Traffic Contraventions) Ordinance are not criminal offences to which the phrase "criminal proceedings" can be said to apply.

22. The significant differences between the FPTCO and the FPCPO which illustrate the proposition are the following :-

(i) The purpose of the FPTCO is said to be to provide "for a fixed penalty to be paid for various contraventions of the law", whereas the purpose of the FPCPO is said to be to provide "for a fixed penalty to be payable for various offences." This difference in language is repeated throughout the two Ordinances. The distinction between "various contraventions of the law" and "various offences" can only be because the "various contraventions of the law" are not to be treated as "offences".

(ii) The FPTCO does not in any of its provisions use language consistent with concepts such as guilt or conviction. Thus, section 20(1) refers to a defendant who "does not admit the truth of a complaint" rather than a defendant who "pleads not guilty to a complaint". The words "guilt", "guilty" and "conviction" do not appear in the FPTCO at all. Such words, on the other hand, are used throughout the FPCPO.

(iii) The only penalties for the various contraventions of the law to which the FPTCO relates are the fixed and additional penalties provided for in the FPTCO. However, the fixed and additional penalties provided for in the FPCPO for the various criminal offences to which it relates are alternative to the penalties provided for in the various Ordinances which create the offences.

(iv) The enforcement of orders for the payment of sums payable under the FPTCO is, by virtue of section 23(1), by the distress and sale of the defendant's goods and chattels. On the other hand, the enforcement of orders for the payment of sums payable under the FPCPO is, in certain cases, by virtue of sections 3A(4) and 3B(4), by imprisonment under section 68 of the Magistrates Ordinance (Cap. 227) (provided, of course, that the Ordinances creating the offences in question permitted a sentence of imprisonment for their commission: see R. v. Tong Lai Ping [1961] HKLR 341.)

CONCLUSION

23. For these reasons, this appeal must be dismissed. At the conclusion of the hearing before me when I reserved judgment, Mr. Bailey informed me that the Crown would not be applying for costs against Mr. Crawley if his appeal was dismissed. That was a generous stance. Had the Crown been applying for costs, I would have had no hesitation in granting the application.