HKSAR v. LURAKA EVENTS AGENCY LTD

HCMA 10/2012

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 10 OF 2012

(ON APPEAL FROM ESS NO. 18240 OF 2011)

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JUDGMENT

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1.  The defendant is a company that was summonsed for failing to give information relating to the driving of a vehicle. The summons was the culmination of events arising from an allegation that a driver of one of the appellant’s vehicles had crossed double white lines in the Aberdeen Tunnel.

2.  A representative of the company challenged that any such contravention had taken place and unfortunately appears to have confused a challenge to that contravention with a compliance with the notice.  A further unfortunate event was that the notice that originally issued bore an incorrect time referring to 11.15 am instead of 11.15 pm.  This defective notice was issued by SERCO the operator of the tunnel and it was responded to by the appellant company by letter challenging the asserted contravention.  That letter clearly indicated that the company was trying to comply with the notice but was unable to identify a driver in relation to the incorrectly stated time.  The error in the notice appears to have been detected and a second notice issued which was collected by the appellant company on the 26^th of April. What happened after that is less clear.

3.  The representative of the appellant company testified before me and it is clear from his evidence that he has consistently tried to resolve this matter with the Transport Department but it is unclear how quickly he responded to the second notice.  This matter then dragged on and a summons was issued but the case took some time to get to trial.

4.  Throughout the court proceedings the company made it very clear that it challenged its non-compliance with the notice and wished to plead not guilty. That plea was entered and the case was fixed for trial but unfortunately on that day a typhoon no. 8 signal was raised and so the case had to be re-fixed. Ultimately the case was mentioned on the 26^th of October at which time it was fixed for trial on the 1^st of December.  I am satisfied on the evidence that the representative of the appellant who appears before me today also appeared on the 26^th of October and should therefore have been aware of the trial date on the 1^st December. He cannot explain why he did not appear on the 1^st December as he says he always intended to appear and always intended to go to trial on this matter and advance a defence to it.

5.  Essentially the appellant’s defence to the notice is that it has all along tried to co-operate with the Transport Department and has sought their assistance in trying to resolve this matter.  Whether in doing so its representative has fully appreciated the distinction between compliance with the notice and challenging the incident of crossing double lines is unclear and it may be that ultimately it would be decided by a court hearing the evidence that there is some confusion in his mind between the two, but that is not for me to say at this stage.

6.  I am satisfied that in order to do justice in this case I should quash this conviction so that this appellant can have its day in court and may advance whatever defence it may have to this charge.  I therefore allow the appeal and quash the conviction.  Application has been made by the prosecution for this matter to be sent for re-trial.

7.  The incident underlying the issue of the notice took place on the 6^th of January 2011.  A notice to which the appellant responded was issued on the 20^th of January but as I have indicated that was a defective notice and a further notice had to be issued.  That notice issued in April and was received by the appellant on the 26^th of April.  What happened between April and May is unclear but in May a summons issued and it took many months for this simple matter to get to trial with the appellant’s representative having attended court on a number of occasions.  It was, of course, no-one’s fault that there was a typhoon on the 29 of September which was the date fixed for trial.  However that caused further delay in this matter and the case was then fixed for the 1^st of December and it was on that occasion the appellant was absent.  So it took almost a year for this matter to come on and that was only the non-compliance of the notice not the conduct underlying the issue of that notice.  And that conduct would now be non-prosecutable for time bar reasons.  Taking into account all the circumstances of this case, I am not persuaded that it is in the public interest for a re-trial to take place and I refuse the application for re-trial.