THE ATTORNEY GENERAL v. TSANG WAI KEUNG

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HEADNOTE

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Suspected contravention of Cross Harbour Tunnel Regulations - written demand by Tunnel Authority to owner of vehicle requiring particulars of driver at material time - failure to comply with demand - offence under s.62A(1) & (5) of Cross Harbour Tunnel Ordinance, Cap. 203 (similar to s.63 of the Road Traffic Ordinance, Cap. 374)

Section 62A(1) and (5) does not infringe Article 11(2)(g) of the Hong Kong Bill of Rights Ordinance, Cap.383 - (R. v. Lee Tak Cheung, NK No.1178 of 1992, approved)

IN THE SUPREME COURT OF HONG KONG

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO. 661 OF 1996

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DECISION

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1. The appellant was convicted after trial of the offence of failing to comply with a demand to furnish the required information, contrary to s.62A(1) and s.62A(5) of the Cross Harbour Tunnel Ordinance, Cap.203. The appellant was fined $1,000. He appealed against conviction and sentence.

2. The case was originally instituted on the information of an authorised person of the Cross Harbour Tunnel Ltd. and brought before a Magistrate. Since one of the grounds of appeal was that the relevant statutory provisions with which the appellant was charged were inconsistent with the Bill of Rights, the Attorney General, pursuant to the powers under s.123 of the Magistrates Ordinance substituted himself as a party to this appeal. I am indeed grateful to Mr Bruce Q.C. for his comprehensive submissions on this point.

3. Having heard submissions from the parties, I dismissed the appeals and said I would reduce my reasons into writing. This I now do.

4. The facts are not seriously disputed, at least for the purpose of this appeal. On 6th March 1995 at 5:30 p.m., a motor cycle with registration number FD4257 drove through a toll booth of the Cross Harbour Tunnel which was not designated for motor cycles. I think the booth required the exact fare to be tended as well. Anyway, the fares were paid by the rider of the motor cycle. A staff of the CHT signalled to the rider to stop at a nearby lay-by. The rider ignored this signal and drove through the tunnel towards the Hong Kong side. The staff of the CHT managed to take down the registration number of the motor cycle.

5. Pursuant to the Cross Harbour Tunnel Ordinance, the CHT sent a demand to the registered owner of the motor cycle requiring him to furnish them with the particulars of the rider at the material time. The appellant was the registered owner. In response to that demand, the appellant sent a copy of Article 11 of the Hong Kong Bill of Rights Ordinance. In due course, he was charged with an offence under s.62A(1) and (5) of the Cross Harbour Tunnel Ordinance.

6. At the trial before the learned Magistrate, the appellant who was not legally represented raised a number of points: that he had been told on one occasion that he had the right to use the toll booth in question notwithstanding the sign to the contrary; that the CHT staff had mistakenly noted the registration number; that the staff's signal or direction was unreasonable, that the staff had no reasonable ground for stopping the motor cycle because he would be an aider and abettor of the contravention of the tunnel sign. He also raised as one of the main grounds of defence that the two statutory provisions were inconsistent with Article 11(2)(g) of the Bill of Rights in that the statutory provisions compelled him to disclose who the rider was and if he should be the rider, he would in effect be compelled to confess guilt.

7. The learned Magistrate held that the CHT staff had correctly noted down the registration number of the motor cycle and that the staff had a suspicion that an offence under the provisions of the Ordinance had been committed. He took the view that it was not necessary to show that such suspicion was reasonable in the light of the wording of the statutory provisions. On the Bill of Rights issue, he ruled that s.62(A) of the Ordinance did not infringe the Bill.

8. In so far as the matters which had not been dealt with by the learned Magistrate, I do not think they are sustainable at all. Even if the appellant had in fact on one previous occasion been permitted to "contravene a tunnel sign", it does not mean that he has the right to do it again on a subsequent occasion. There is no question of any aider or abettor. Further, an authorised person of the CHT is clearly empowered to give directions for the orderly traffic in the tunnel area, in particular to a person suspected of contravening tunnel regulations or having committed a tunnel offence. From the evidence given before the Magistrate, that cannot be regarded in any way as unreasonable.

9. In this appeal, the appellant in his Perfected Grounds of Appeal raised six grounds. The first ground complained that the learned Magistrate did not give any reason in court when he made his ruling although he, the appellant, now had those written reasons. The second ground was directed at Counsel for the prosecution at the trial and alleged that he had failed to supply the relevant case law and written submissions to the appellant until the very last moment. This also happened in this appeal, the appellant complained. However, he told me that he had not been prejudiced and would not be asking for an adjournment since he had prepared for this appeal. Having made his grievance heard, the appellant abandoned these two grounds.

10. The third ground of appeal was the Bill of Rights issue. The appellant argued that the learned Magistrate had wrongly followed a previous Magistrate's decision in R.v. Lee Tak Cheung, NK No. 1178 of 1992. He said that that case was wrongly decided because it had incorrectly followed Canadian authorities on s.11(c) of the Canadian Charter of Rights and Freedom. He submitted that that provision and Article 11(2)(g) of the Hong Kong Bill of Rights were different. It was argued that the provision in our Bill of Rights extended to the present situation in that the demand for information from the registered owner of the motor cycle was itself "in the determination of any criminal charge" rather than merely for investigation. This he said was because if the owner provided the identity of the driver pursuant to the demand of the CHT, that would have determined the charge against him. Hence, the owner should not be compelled to respond to the demand and if s.62A required an answer, this would be inconsistent with Article 11(2)(g). This was particularly the case because what the owner might say in reply would be treated as prima facie evidence against him.

11. In my view, the analysis of counsel for the Attorney General is correct. The scheme under section 62A of the Cross Harbour Tunnel Ordinance operates as follows:

12. It is also part of the statutory scheme that a signed statement by the person charged with an offence under the Cross Harbour Tunnel Ordinance that he was a driver is prima facie evidence of that fact.

13. I agree with counsel for the Attorney General that section 62A is a very important weapon for the prevention and detection of traffic offences. It is almost in identical terms as s.63 of the Road Traffic Ordinance. It is in effect an extension of that section. It enables the CHT authority to detect and investigate traffic offences committed inside the tunnel by users of the road who get into and make use of the tunnel. Without the scheme requiring the supply of information by the registered owner of the vehicle about the identity of the driver at the material time of the suspected offence, it would be most difficult if not impossible to detect and investigate hit and run cases.

14. Article 11(2)(g) of the Hong Kong Bill of Rights provides as follows:

"In the determination of any criminal charge against him, every one shall be entitled to the following minimum guarantees, in full equality-(g) not to be compelled to testify against himself or to confess guilt."

15. By way of comparison, s. 11(c) the Canadian Charter of Rights and Freedom provides as follows:

"Any person charged with an offence has the right (c) not to be compelled to be a witness in proceedings against that person in respect of the offence."

16. There are authorities in Canada, such as R.v. Altseimer R [1982] 1 CCC (3D) 246 and Gaff v. R [1984] 15 CCC (3D) 126, which held that the requirement to submit a sample of birth did not contravene s.11(c) of the Canadian Charter because such requirement was imposed before the person was charged with an offence. The Canadian s. 11(c) appears to be clear enough. It refers to a person charged with an offence. The wording in that section appears to be different from that in our Article 11(2)(g). But is there any difference in substance?

17. There are 7 minimum guarantees set out in Article 11(2). A closer examination of these guaranteed rights shows that these are all rights closely connected with a criminal trial. They provide in broad terms for the rights: to be informed promptly of the charge (paragraph (a)); to be given sufficient time and facilities to prepare for the trial (paragraph (b)); to be tried without undue delay (paragraph (c)); to have legal assistance (paragraph (d)); to examine the witnesses (paragraph (e)); to have the service of interpreters (paragraph(f)). None of these rights refer to the time before the accused was charged with an offence.

18. The right guaranteed in paragraph (g) refers not only to the right not to be compelled to "testify against himself", but also the right not to be compelled "to confess guilt." One can only testify at the hearing of the criminal trial. It would not be testifying before a police officer in a police station. Hence, as far as the right not to be compelled to testify against oneself, it is quite clear that this refers to a right which is exercisable after a person is charged and at the time of his trial. On the face of it, the right not to be compelled to "confess guilt" may be exercised when a person is brought before a police officer or person in the authority during the investigation process and it may also be exercised when he is asked to plead to a charge in court. However, considering the guaranteed rights in this Article as a whole, including the fact that this right (the right not to be compelled to confess guilt) is stated immediately after the right not to be compelled to testify, I think it can only mean, as counsel for the Attorney General submitted, a right not to be compelled to confess guilt at the trial. For if it were intended to refer to the right not to be compelled to confess guilt before the trial, i.e. to an officer or person in authority and not in court, it would be out of place and incompatible with the other guaranteed rights in the same Article. Incidentally, I also note that this right is the last right guaranteed by that Article. I am therefore satisfied that the right guaranteed in paragraph (g) must refer to a right not to be compelled to plead guilty to the charge or confess his guilt in court. Counsel for the Attorney General submitted that the right to silence has many aspects and that the right set out in paragraph (g) refers to the right of silence in court. I agree.

19. In this connection, I would also respectfully agree with the observations of Jones J. in Re Tse Chu Fai [1993] 2 HKLR 453 at 462:

"The words in Article 11(2)(g) are unequivocal for they are clearly restricted to the rights of a person charged or convicted of a criminal charge."

20. In my view, paragraph (g) clearly refers to a situation after a person has been charged with an offence and the right of an accused person not to be compelled to confess guilt at the trial. It does not purport to deal with the right of a person at the investigation stage.

21. Under section 62A of the Cross Harbour Tunnel Ordinance, the registered owner of the motor cycle, that is the appellant, was only required to provide information about the identity of the driver at the material time of the alleged or suspected offence. The effect of this section does not go beyond the investigation stage. It is not anywhere near a court proceeding.

22. For these reasons, I take the view that the trial Magistrate in this case and the learned Magistrate in the Lee Tak Cheung case, were right in holding that Article 11(2)(g) does not apply to a situation covered by s.62A of the Cross Harbour Tunnel Ordinance or its equivalent s.63 of the Road Traffic Ordinance.

23. Even if I am wrong in holding that Article 11(2)(g) does not apply to s.62A of the Cross Harbour Tunnel Ordinance, it can be said that requiring the registered owner to disclose the identity of the driver at the material time of an alleged offence is not compelling him to testify against himself or to confess guilt. There are quite a number of tunnel offences (similarly quite a number of offences under the Road Traffic Ordinance). Each of these offences requires proof of certain ingredients. What are required depend on the particular offence of which a person is suspected of having committed. If the registered owner was not the driver, in responding to the demand, he is not testifying against himself or confessing guilt. It is only when he was also the driver that it can be said that he is revealing something which connects him to the alleged offence. While I accept that the information to be supplied by a registered owner about the identity of the driver at the material time may be used as evidence in court, this applies to all evidence obtained during investigation. His identity at a particular time is only one ingredient of any tunnel offence. It would then depend on whether the other ingredients of the suspected offence are also proved. Further, it is only prima facie evidence against him and he is not prohibited from adducing evidence to the contrary. Hence, I do not think that the requirement under s.62A of the Cross Harbour Tunnel Ordinance contravenes Article 11(2)(g), even if it could be said to be applicable.

24. Furthermore, even if s.62A is inconsistent with Article 11(2)(g), I also take the view that it is a rational and proportionate response to a serious problem. This provision is an extension of the equivalent provision s.63 of the Road Traffic Ordinance to the tunnel area in connection with tunnel offences. The purpose behind this provision is quite clear. If this provision is not effective, a driver would be able to avoid or escape responsibility by hit and run. There would then be little or no way in which the police or the authority can detect the real culprit of such a crime. This would result in the police being helpless to deal with such irresponsible drivers. Victims of traffic accidents would find themselves without any hope of claiming against the real culprit. They can of course pursue the registered owner but their chances would be weakened because of the inability to locate or identify the driver. In these circumstances, I should think that it is necessary for the police or the relevant authority such as the Cross Harbour Tunnel Company to retain such power. In my view, it is a reasonable and sensible provision. Even if it has the effect of curtailing part of the right of silence, I shall think that this is amply justified in view of the serious consequences arising from this social problem.

25. For these reasons, I take the view that the third ground of appeal is totally without merit.

26. The fourth and fifth grounds of appeal can be dealt with together. The appellant submitted that there was no ground to suspect that offences had been committed or that there was no reasonable basis for such suspicion. If the driver was not aware of the direction, how, it was argued, could it be said that he had disobeyed the instructions of the staff of the Cross Harbour Tunnel? He submitted that the learned Magistrate was wrong to say that since the word "reasonable" did not appear in the section, it was not necessary to show that this suspicion was based on reasonable grounds. He argued that the section should not be interpreted in such narrow way.

27. The driver, whoever he was, was suspected by the staff of the Cross Harbour Tunnel of two offences, namely, disobeying traffic sign and failing to stop as instructed. It is quite clear that there are certain booths which do not permit entry by motor cycles. It is also necessary that a staff of the tunnel should have the power to give directions with regard to the traffic within the tunnel area and to give instructions to drivers using the tunnel. Both the traffic signs and the power to give instructions are necessary to maintain order and the safe use of the tunnel. The evidence is also quite clear. According to the staff, the rider of the motor cycle tried to enter the tunnel using a booth which was not for used by motor cycles. There is no dispute that he had done so. The staff also testified to the effect that he instructed the rider to drive to a nearby lay-by. However, notwithstanding such direction, the rider simply ignored the signal and drove into the tunnel. In my view, there were clearly good reasons and sufficient basis for the staff of the tunnel to suspect that the driver had committed these two offences. Hence, I do not find it necessary to rule on whether the particular section requires an element of reasonableness of the suspicion, although I am inclined to think that even in the absence of the word "reasonable" in the section, it is still necessary for the staff to have some basis for his suspicion. Events may occur within a very short time. It may be difficult for the staff to say at a later stage that at the material time on the spot, his suspicion was reasonable or not. This is usually difficult because within the short time available, this element of reasonableness might not even occur to the staff. However, as I said, the facts are quite clear. The suspicion was quite justified and supported by reasonable grounds. I do not think grounds 4 and 5 can succeed.

28. The last ground was that the appellant had complied with an notice by sending a copy of Article 11 of the Bill of Rights. He argued that he had sent the copy in good time so as to enable the tunnel authority to say whether such a reply was sufficient or not. He said that the tunnel authority did not respond or tell him whether he had complied with the demand. He said that therefore the tunnel authority had contributed to this offence.

29. I do not think this argument can succeed. Under the section, the tunnel authority is empowered to make a demand and is entitled to expect compliance with the demand in the form of the notice. A response in the form of a copy of the Bill of Rights clearly does not meet the requirement of the section. It is tantamount to a refusal to answer. The tunnel authority is entitled not to pay attention to irrelevant answers. There is no obligation on its part to enter into correspondence or argument with the registered owner. He either complies with the demand or he does not. And if he does not, the tunnel authority is entitled to prosecute him under s.62A.

30. For the reasons which I have given, I take the view that the learned Magistrate was correct in holding that the arguments put forward by the appellant could not be sustained. There is no merit in this appeal. It must be dismissed.

31. The appellant submitted that the sentence imposed on him was excessive. He was fined $1,000. He said that this was not the normal penalty.

32. The maximum penalty for this offence is a fine of $2,000 and imprisonment for 6 months. I was told that the usual sentence would be a fine of a few hundred dollars. In my view, the fine of $1,000 is well within the sentence which the court can impose. This is not the most serious type of offence of this nature. Nor is it a very minor offence. I see no reason why I should interfere with the discretion of the learned Magistrate. It cannot be described as either manifestly excessive or wrong in principle. In the circumstances, I would also dismiss the appeal against sentence.