HKSAR v. LEE SIU KEUNG EDMOND

HCMA 572/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 572 OF 2014

(ON APPEAL FROM FLS NO 2182 OF 2014)

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J U D G M E N T

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1.  The Appellant (“Mr Lee”) was convicted after trial before Deputy Special Magistrate Mr Simon Ho (“the Magistrate”) of the offence of riding a bicycle on a foot-path without lawful authority or excuse, contrary to section 4(8) of the Summary Offences Ordinance, Cap 228 (“the Ordinance”). He was fined HK$500 for the offence. Mr Lee now appeals against the conviction.

2.  It was common ground that on the relevant day, 9 February 2014, Mr Lee was seen sitting on a bicycle sliding down a slope at Lam Kam Road, Tai Po, near Lam Tsuen.  I used the word “sitting” on a bicycle because Mr Lee contested that the word “ride” under section 4(8) of the Ordinance means only riding on an animal and does not include riding on a bicycle.  Mr Lee also viewed that it is relevant that his feet were merely resting on the pedals of the bicycle without actual cycling.

3.  In his “Preliminary grounds of appeal” Mr Lee advanced a number of arguments.  There was no further written grounds of appeal filed and at the hearing before me, Mr Lee said he has had no time to prepare a perfected ground.  He indicated that he will rely on the preliminary grounds and substantiate those with oral submissions as written down on his handwritten notes. 

4.  With the assistance of Mr Lee I categorized his grounds of appeal into the following 5 areas:

(I) The Magistrate wrongly refused his application to conduct the trial in English;

(II) Procedural irregularities:

(a) The Summons was irregular;

(b) The trial was proceeded with based on a wrong summons; and

(c) Notice of prosecution (Form 104/105) was not filed/served pursuant to section 7D of Magistrates Ordinance, Cap 227;

(III) The Magistrate has interrupted his cross-examination of the prosecution witness;

(IV) The Magistrate erred in wrongly interpreted the words “ride” and “foot-path” under section 4(8) of the Ordinance; and

(V) The Magistrate erred in finding that he has no lawful authority or excuse.

(I) THE MAGISTRATE WRONGLY REFUSED HIS APPLICATION TO CONDUCT THE TRIAL IN ENGLISH

5.  At trial, Mr Lee applied before the Magistrate to have the trial conducted in English.  He submitted that it would be more advantageous to him if English is used because (a) there are many defects in the English version of the summons; and (b) he will argue on the interpretation of the relevant statute.  On the other hand, the prosecutor at trial indicated that he has prepared all documents in Chinese. After hearing submissions, the Magistrate decided that the trial should be conducted in Chinese.

6.  In relation to the use of language in court, section 5 of the Official Languages Ordinance, Cap 5, (“OLO”) provides as follows:

“(1) A judge, magistrate or other judicial officer may use either or both of the official languages in any proceedings or a part of any proceedings before him as he thinks fit.

(2) The decision of a judge, magistrate or other judicial officer under subsection (1) is final.

(3) Notwithstanding subsection (1), a party to or a witness in any proceedings or a part of any proceedings may-

(a) use either or both of the official languages; and

(b) address the court or testify in any language.

(4) Notwithstanding subsection (1), a legal representative in any proceedings or a part of any proceedings may use either or both of the official languages.

(5) The Chief Justice may make rules and issue practice directions to regulate the use of the official languages in the courts.”

7.  Under section 3 of OLO, the official languages are the English and Chinese languages and they possess equal status. 

8.  By virtue of section 5 of OLO, the Magistrate has the power to decide which official language to use in the proceedings before him and his decision is final.  However, it remains Mr Lee’s own choice to use any language to address the court or testify in the court.

9.  It is difficult to understand how it would be more advantageous to Mr Lee if the trial were to be conducted in English instead of Chinese.  First and foremost, Mr Lee is fully conversant with the Chinese language.  Secondly, there is nothing to stop him from using English if he sees fit.  There is also nothing to stop him from advancing his arguments in English on the alleged defects of the summons and also the interpretations of the relevant provisions of any legislation.  No prejudice can be caused to Mr Lee by the Magistrate’s decision to use Chinese as the language of the trial. 

10.  Besides, there are justifiable reasons for the choice of Chinese.  This is a very simple case and the prosecutor has prepared all documents in Chinese.  If English is chosen as the language of the trial the prosecution will have to translate all Chinese documents into English and the resources required for doing so will be disproportionate to the nature of this case.

11.  This is not a valid ground of appeal.

(II) PROCEDURAL IRREGULARITIES

(a) Irregular summons

12.  Mr Lee complained that the summons is irregular in that it bears the following defects:

(a) The name appears on the summons is incorrect as his Christian name “Edmond” is missing;

(b) His address in Chinese appears on the English summons;

(c) Grammatical mistakes including “at near lamppost Lam Kam Road”, “ride bicycle”, and “footpath”.

13.  There are indeed some grammatical mistakes or typos appeared on the summons.  The Information was written as follows:

“Information has been laid That You on 9 February 2014 at 02:18 PM at near lamppost EB0529 Lam Kam Road Tai Po without lawful authority or excuse did ride bicycle on a footpath without obvious necessity”

14.  However, the mistakes and typos are in such a minor nature that no confusion whatsoever can be caused to anybody reading the summons.  They are not material defects sufficient to render the summons irregular.

15.  Regarding the name of Mr Lee, the prosecution has applied to amend the summons to include Mr Lee’s Christian name and leave has been granted by the Magistrate.  No prejudice to Mr Lee was caused by the amendment. 

16.  The appearance of Mr Lee’s Chinese address on the summons can also cause no prejudice or confusion.

17.  This is not a valid ground of appeal.

(b) The trial was proceeded upon a wrong summons

18.  There were two summonses issued in respect of Mr Lee’s alleged offence.  The first one was issued on 19February 2014 and the second one on 8 April 2014.  The reason why a second summons was issued was that the address on the first summons was wrongly stated as “Flat D” rather than “Flat ND” and because of that, the first summons was not served to Mr Lee’s address.

19.  Mr Lee submitted that it is procedurally irregular to proceed with the trial based on the first summons. 

20.  Mr Lee’s complaint is misconceived.  As I have mentioned above, the address on the “first summons” was incorrect and as such the prosecution had sought leave from the court to amend the summons for service.  Consequentially a fresh summons was issued for service to Mr Lee and it was duly served.  There is no question of the trial being proceeded with based on the “first summons” or the “second summons” as the “second summons” was only an amended version of the “first summons”.

(c) Notice of prosecution (Form 104/105) was not filed/served pursuant to section 7D of Magistrates Ordinance, Cap 227

21.  Section 7D(1) of Magistrates Ordinance provides that:

“Where the penalty which may be imposed upon conviction for an offence does not exceed a fine of $10000 and imprisonment for 6 months (whether with or without any additional order, relating to suspension or cancellation of a licence, disqualification from obtaining or holding a licence, or as to compensation or otherwise), any public officer or body corporate authorized to prosecute in respect of that offence may file in a magistrate’s court a notice of prosecution and shall, within 14days of such filing, serve a copy of that notice by post on the defendant.” (emphasis added)

22.  As submitted by Ms Fung, Senior Public Prosecutor for the Respondent, under section 7D, to file a notice of prosecution is not mandatory but discretionary.  Should the public officer or body corporate choose to file a notice of prosecution, it is then mandatory upon him to serve a copy of that notice on the defendant.

23.  The present case was initiated by summons in accordance with section 8 of the Magistrates Ordinance, Cap 227.  Filing of a notice of prosecution is not a prerequisite.  The choice of not filing one does not render the prosecution irregular.

(III) THE MAGISTRATE HAS INTERRUPTED HIS CROSS-EXAMINATION OF THE PROSECUTION WITNESS

24.  At the hearing before me, Mr Lee referred to a few pages[1] of the transcripts of proceedings in relation to his complaints against the Magistrate’s interruptions.

25.  I have read through the relevant parts of the transcripts.  Only one of the three so called interruptions referred to by Mr Lee happened during his cross-examination. For the other two so called interruptions, on one occasion the Magistrate was merely enquiring with Mr Lee what prejudice he said may be caused to him by allowing the summons to be amended.  On another occasion the Magistrate was asking whether the prosecutor was sure that he has no further question to ask his witness.

26.  Regarding the one happened during Mr Lee’s cross-examination, the Magistrate was directing Mr Lee to ask a more straight forward question as he found that Mr Lee’s original question being too general and ambiguous.

27.  I do not think any of the so called interruptions can possibly cause any prejudice against Mr Lee or in any case render the trial unfair.

(IV) THE MAGISTRATE ERRED IN ADOPTING A WRONG INTERPRETATION OF THE WORDS “RIDE” AND “FOOT-PATH” UNDER SECTION 4(8) OF THE ORDINANCE

28.  Mr Lee submitted that the word “ride” under section 4(8) of the Ordinance confines to only the riding of an animal, for instances, horses and cattle.  He also said the Chinese version of the word “ride” in the provision is “策騎” which is a word means only riding an animal in Chinese.

29.  The meaning of the word “ride” under section 4(8) is considered and well settled in previous decisions of this court.  In all relevant decisions the court ruled that it covers the case of riding a bicycle.  HKSAR v Wong Kin Fat HCMA 1022 of 2009, HKSAR v Wong Kin Fat HCMA 864 of 2009 and HKSAR v Chao Sin Hang HCMA 40 of 2014. 

30.  Although these cases are all written in Chinese and the Court considered mainly the Chinese version of the provision, I do not think the same meaning could not be given to the English version of it.  The word “ride” is even more commonly used as the verb for using of a bicycle in the English language.

31.  The fact that Mr Lee did not actually cycle with the pedals at the time is irrelevant.  It defies common sense to suggest that riding a bicycle means only when the rider actually cycled with the pedals.

32.  As regards the word “foot-path”, it is Mr Lee’s submission that it means only small narrow paths in the countryside.  He submitted that it does not include pedestrian walk-ways, pavements or side-walks.  He said “foot-path” should be narrower and since there was no evidence adduced by the prosecution to prove the width of the pavement he was found cycling on, the prosecution has failed to prove beyond doubt he was cycling on a “foot-path”.

33.  I do not see any reason why the meaning of the word “foot-path” should be restricted to only include narrow paths in the countryside.  At the hearing Mr Lee sought to argue that as the enactment was quite an old one it must intend only to be applicable in the countryside.  With respect, this is an argument based on a wrong assumption that there existed only countryside but not urban area in Hong Kong in the old days.  This must not be right.

34.  In my view, the Magistrate was plainly right to adopt the literal meaning of the word “foot-path” from the Oxford Intermediate Learner’s Dictionary, that is, “a path for people to walk on”.  It clearly includes pavements and the width of which is totally irrelevant in this case.  The Magistrate has also correctly applied the definition of “foot-path” as suggested by DHCJ A Wong, as he then was, in HKSAR v Chao Sin Hang HCMA 40 of 2014, to include all pathways for people to walk on which is adjacent to a road of traffic.

(V) THE MAGISTRATE ERRED IN FINDING THAT HE HAS NO LAWFUL AUTHORITY OR EXCUSE

35.  Mr Lee gave evidence at the trial that he felt unwell on the day in question and was hurrying home.  He said this is a lawful excuse.  However, the Magistrate found that it would be unreasonable for Mr Lee to ride on a bicycle when he said he was feeling dizzy at that time.  The Magistrate noted also that Mr Lee did not go to seek medical attention afterwards. 

36.  I agree with the Magistrate.  He is plainly right to have rejected Mr Lee’s evidence.

37.  Besides, it would be even more dangerous for a person who is physically unfit to ride a bicycle on a foot-path, not only to the person himself, but also to other users of the foot-path.  Feeling unwell cannot in any case be a lawful excuse to justify any person to ride a bicycle on a foot-path.

CONCLUSION

38.  For the above reasons, Mr Lee has shown no valid ground of appeal and the appeal is accordingly dismissed.