HKSAR v. YEUNG WAI YIN, HERA

HCMA 433/1998

Headnote

Sentence - for failing to furnish particulars of drivers contrary to s. 63, Road Traffic Ordinance, Cap. 374.

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(APPELLATE JURISDICTION)

(MAGISTRACY APPEAL NO. 433 OF 1998)

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J U D G M E N T

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The fact:

1. The Appellant was convicted by a special magistrate after trial of failing to give particulars of the driver of the vehicle at the time of an alleged offence within 21 days of the notice to a specified officer, contrary to section 63 of the Road Traffic Ordinance, Cap. 374. At about 1:04 am on 22/6/97, the Appellant's private car, FY2069 was found by a radar speed detector being driven at an excessive speed along Tuen Mun Road. At that time, the Appellant and his wife were in Japan. They returned to Hong Kong later that evening. On 9/7/97, WPC56137 issued a notice in the statutory form demanding the Appellant as owner of the vehicle to provide the particulars of the driver. To that the Appellant replied that the particulars were unknown. He explained that he and his wife were the only persons who had the key to the car but they were in Japan, while one of the key was left in his home and the other was inside a drawer in his wife's office.

2. At trial, he gave the same explanation. He said he considered the demand of WPC56137 a joke. He made no inquiries from his wife whether the drawer in which the key was kept was under lock. He did not make any inquires from anybody. He did not make any report to the Police about his car having been used by someone without his authority as he did not believe his car was involved in the alleged offence. In brief, he simply did nothing. He was given the notice within about two weeks of the alleged offence. The date of the alleged offence is within his recollection as that was the date when he returned from Japan. It would be within his means and recollection to make some useful inquiries, if he was then minded to. But he did not make any inquiries saying that it was a joke.

3. His wife gave evidence that the drawer where the key was kept was not under lock. She had not lent the car to anybody, did not know who had driven it, did not suspect it had been driven by anyone while she was away and did not discover anything unusual about the car when she returned. She did not know the Police had been in contact with the Appellant in connection with the car.

4. The magistrate did not believe the Appellant and his wife and convicted the Appellant as charged. The Appellant now appeals against his conviction and sentence.

Appeal against conviction:

5. At the hearing, the Appellant presented four grounds of appeal. In his first ground, he complained that the special magistrate was biased and took over the role of the prosecutor by asking questions of the prosecution witness. The transcript shows that a good number of questions have been asked of PW1 by the magistrate. However, it is also obvious from the transcript that the prosecutor was not efficient. The magistrate was only assisting in the formal evidence, clarifying ambiguities, summing up evidence from a number of answers (for the convenience of both the prosecution and the Appellant) and cutting short the proceedings. The evidence of this witness related to photographing the Appellant's vehicle. This part of the evidence is just formal evidence and does not relate to the main issues which are the issue of the notice demanding particulars of the driver and the Appellant's failure to provide the particulars within 21 days. I do not think there is any substance in this complaint. This would be otherwise if the charge against the Appellant is one of driving at an excessive speed.

6. The Appellant said that the magistrate interrupted him 5 times during the 8 questions he put to PW1 and 10 times during the 8 questions he put to PW2. A careful reading of the transcript showed that the five questions the magistrate asked in "interruption" were in fact to ascertain from the Appellant what he meant by the words "deviation". Then having so ascertained his meaning, the magistrate put the question on his behalf and asked PW1 what was the percentage error of his radar speed detector and obtained the desired answer, which was plus or minus 3 kmph. As for the "interruption" during his cross examination of PW2, part of the record could not be transcribed. A fair reading of the part that was transcribed showed that the Appellant sought to ask PW2 when the Appellant received her notice. Having understood his question, the magistrate explained to the Appellant that PW2 could not answer his question as that was a matter solely within the knowledge of the Appellant himself and the Post Office. He then suggested the prosecutor to show the Appellant the receipt from the Post Office. That was duly shown to the Appellant who was apparently satisfied and then changed his line of cross examination. On a fair reading of the transcript, I do not think the magistrate could be complained for these "interruptions". He demonstrated no bias and was not adopting a protective attitude towards the prosecution witnesses or sarcastic attitude towards the Appellant.

7. The Appellant complained he was asked 42 questions by the magistrate during his first stage of examination in chief and none by the prosecutor. That was astounding. But upon my verification with the transcript and clarification from the Appellant, I find that these 42 questions were asked of him immediately after the Appellant pleaded not guilty to the charge. I am satisfied that the magistrate was trying to ascertain from the Appellant whether he had any defence and explain the law and the statutory defence to him. This complaint is wholly unfounded. It is surprising that as a trainee solicitor, the Appellant would have treated those inquiries as part of his examination in chief.

8. He then complained that 95% of the questions were put to him by the magistrate. By this I understand him to refer to his examination in chief. That is understandable. The Appellant was unrepresented and the magistrate then understood him to be a clerk. The magistrate was trying to adduce evidence for him to develop his defence. That invariably is what happens when an unrepresented defendant gives evidence. Again, on a fair reading of the transcript, I am satisfied that the questions asked were fair and the magistrate was only trying to adduce evidence for his defence rather than to cross examine or incriminate or ridicule him. This complaint is unfounded. The same applies to the questions asked of his wife, DW2 by the magistrate.

9. In HKSAR v. Mohammad Jahangir & Ors., [1998] 1 HKC 455, the Court of Appeal held that the mere fact that there existed a large number of interruptions was not conclusive in deciding whether there was a denial of justice. The quality of the interruptions as they related to the attitude of the judge and the effect that the interventions had upon the conduct of the defence were critical. The quantity and the quality of the interruptions could not be considered in isolation.

10. In view of the quality of the interruptions, I do not consider the magistrate was hostile or that the Appellant was prevented from presenting his defence. The interruptions were aimed at helping the Appellant to put his questions. After the interruption, the magistrate inquired if the Appellant had further questions to ask. Upon a fair reading of the transcript, I am satisfied that despite the quantity of interruption, the conduct of the magistrate is well within the permitted limits of HKSAR v. Mohammad Jahangir & Ors. The interruptions were not such as would prevent the appellant from presenting his case. There is no denial of justice. I consider this ground of appeal must fail.

11. His second ground of appeal is that the magistrate prevented PW1 from establishing his expert status in relation to the operation of the radar speed detector. He referred me to HKSAR v. Chan Hing Hung, [1998] 4 HKC. He submitted that the alleged speeding offence was not proved beyond reasonable doubt. In my view, the elements of offence in the present case are the issue of the notice of demand and the recipient's failure to provide particulars of the driver. As mentioned above, the prosecution does not have to prove beyond reasonable doubt that the alleged offence stated in the notice has been committed. The magistrate probably understood this and for the purpose of efficient disposal of the matter relieved the witness from giving evidence on his expert status. I do not think there is any substance in this ground of appeal.

12. His third ground is that the prosecution never established its case as virtually all the questions were put by the magistrate and the magistrate only found the reasons he was looking for to convict him. This ground is based on the Appellant's total failure to understand the elements of the offence which are the issue of the notice and the Appellant's failure to provide particulars of the driver. There is absolutely no dispute that the Appellant received the notice and provided no particulars of the driver. The necessary evidence has been presented by the prosecutor. The whole case was whether the Appellant could establish on a balance of probability the statutory defence. This ground must also fail.

13. Lastly, the Appellant submitted that the magistrate applied the wrong test for the defence. He referred me to page 31 of the transcript where the magistrate said that the defence under section 63(5) requires the owner to exercise "all endeavour" or "the greatest endeavour" to ascertain the identity of the driver. He submitted that the magistrate was wrong in law as the defence, according to section 63(5), is that the owner did not know and could not with reasonable diligence have ascertained, the particulars of the driver.

14. On the face, the magistrate applied the wrong test, substituting "reasonable endeavour" with "all or greatest endeavour". However, when the magistrate expanded on what he considered as "greatest endeavour" or "all endeavour", he in fact applied the correct test. He said at Page 31 (letter J to K) that under reasonable circumstances, one would not do nothing. Thus the magistrate was in fact applying the "reasonable endeavour test". He then went on to find that the Appellant did NOT request to view the photograph, did NOT make inquiries with the police about the circumstances of the alleged offence, did NOT give any thought to the matter, did not make inquiries from his wife or anybody and did NOT report to the police. In effect, the Appellant made no inquiries and did nothing to ascertain the identity of the driver. He only wrote back saying that the driver is unknown because he and his wife were the only persons who had keys to the car but they were out of Hong Kong. Not only has the Appellant not made any reasonable endeavour to ascertain the particulars of the driver, he simply made no endeavour. Though the magistrate have not been precise with the language, the test he applied was the correct "reasonable endeavour test" and the fact that the Appellant made no endeavour at all is unassailable. This ground of appeal must also fail.

15. The appeal against conviction is therefore dismissed.

Appeal against sentence:

16. The Appellant complained that the fine was excessive. He submitted that the maximum fine under section 41 for driving at an excessive speed was $4,000; but he was fined in excess of that amount. He submitted that under section 63(7), the magistrate should not impose a fine in excess of $4,000 which is the maximum fine for the speeding offence.

17. Section 63(7) provides:

"Where a person is convicted of an offence under subsection (6) and the offence of which he is convicted is an offence in connection with the giving to a police officer of the name, address and driving licence number of the driver of a vehicle at the time of an alleged offence, the court before whom that person is convicted shall have regard to the facts of the alleged offence in considering

(a) the amount of any fine, or period of imprisonment, to impose; and

(b) the period, if any, for which to order such person to be disqualified,

for the offence under subsection (6)."

In my view, section 63(7) does not limit the magistrate's discretion to fine more than the maximum fine in respect of the offence suspected to have been committed by the driver. That subsection only requires the sentencing magistrate to have regard to the facts relating to the alleged offence in considering the sentence for an offence under subsection (6).

18. The owner of a vehicle is the person in the best position to provide particulars of the driver. The owner who has the privilege of using his vehicle on the road, is under a reciprocal moral duty to provide the particulars of the driver suspected of having committed an offence while driving the vehicle. This duty has been made a statutory duty by virtue of section 63 of the Road Traffic Ordinance. Subsection (5) also provides a statutory defence, if the owner does not know and could not with reasonable diligence have ascertained the identity of the driver. The section is therefore an enforcement provision to enable the driver suspected of having committed an offence to be identified and brought to justice. In order that our road traffic laws can be effectively enforced, owners who fail to provide particulars of the drivers must be given a substantial sentence to deter them from frustrating the purpose of the law, or buying out criminal record or driving offence points for the driver.

19. The maximum penalty under section 63 is $10,000 and 6 months imprisonment. For offences suspected to be committed by the driver in which the identity of the driver is immaterial except for the purpose of identifying the person to be prosecuted or to be issued the fixed penalty ticket, a fine of three times the penalty for the offence with the usual one third discount for plea of guilty would be an appropriate starting point. Examples of this type of offences are certain parking offences.

20. Cases where the identity of the driver is material are cases where the driver will be subject to other criminal or civil liability or will incur driving offence points. For this type of cases, the penalty depends on the fault of the owner. This is what section 63(7) specifically requires the sentencing magistrate to have regard to. In general, if the failure to provide particulars is deliberate, a starting point at the middle of the maximum penalty or ten times the penalty which the driver would be sentenced is appropriate. If the failure is due to negligence, then a starting point at one third of the maximum sentence or six times the penalty which the driver would be sentenced is appropriate. The starting point will then be revised upwards or downwards depending on the circumstances of the case. Circumstances to be considered include:

(a) Nature of the offence the driver is suspected of having committed;

(b) The facts of his alleged offence (Section 63(7));

(c) The maximum sentence in respect of the offence suspected to have been committed by the driver;

(d) The likely sentence which the driver will receive, if he were brought to justice;

(e) Whether the driver is liable to disqualification;

(f) Whether substantial damage to property or personal injuries have been caused by the conduct of the driver;

(g) What effort has the owner made in ascertaining the identity of the driver.

21. In the present case, even on the evidence of the Appellant, he did nothing to ascertain the identity of the driver. He made no inquiries at all apart from telling the Police that he did not know the identity of the driver because he was in Japan. The magistrate did not believe in his evidence. He is entitled to find that the failure to provide particulars of the driver was deliberate.

22. The suspected offence was driving at an excessive speed. If the driver were proceeded under the Fixed Penalty (Criminal Proceedings) Ordinance, which would be the most favourable course to the driver, the penalty would be $450 and 3 driving offence points.

23. On the above consideration, a starting point of $5,000 is appropriate and a fine after trial of $4,500, having regard to the Appellant's record and means, is not excessive. The fine is on the high side when compared with the maximum penalty for speeding under section 41. However, it is neither wrong in principle nor manifestly excessive as to warrant my interference. I have explained the rational for adopting a deterrent attitude towards this type of offences. Owners should be discouraged from buying the driver out of criminal liability or buying the driver out the driving offence points. I must warn that in an appropriate case, where refusal to provide particulars is deliberate to protect the driver from prosecution of serious road traffic offence, immediate custodial sentence, even for a first offender is appropriate. Offences such as road racing, and reckless driving are within this category. The appeal against sentence is therefore dismissed.