HKSAR v. YEUNG KAI-KEUNG

[English Translation – 英譯本]

HCMA 253/2017

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 253 OF 2017

(ON APPEAL FROM TMS 4504 OF 2016)

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JUDGMENT

1.  The Appellant was issued with a summons alleging he had failed to provide the particulars of the driver in question in compliance with the requirement after receiving a notice[1]. He appeared in the Tuen Mun Magistracy and pleaded not guilty. After trial, the Deputy Magistrate (hereinafter “the Magistrate”) found him guilty. He appealed against the conviction.

Prosecution Case

2.  The trial was conducted with no disputes on the following matters[2]:

(1)  The traffic of the section of the road in question was controlled by a set of traffic lights and there was also installed there a camera system.

(2)  The said system recorded that a vehicle contravened the traffic light instruction in that road section, namely “running a red light” at 11:13:52 in the evening of 11 November 2015. The record was burnt and recorded onto a compact disc[3].

(3)  The compact disc contained 2 photos with serial numbers 008338A and 08338B respectively.

(4)  The registered owner of an urban taxi (registration mark: KU4619) was Ching Cheung Limited (“Ching Cheung”).

(5)  Ching Cheung entrusted the Appellant to manage (including the leasing of) 12 taxis, one of which bore the registration mark KU4619.

(6)  A “Notice demanding the supply of the driver’s particulars” was received, completed and signed by Mr WONG Wai-tsuen (Transliteration) (“Mr Wong”) (on 30 November 2015) on behalf of Ching Cheung as a reply to the Police.  It stated that the Appellant was the driver of the said vehicle at the material time (“Ching Cheung’s Written Reply”)[4].

(7)  A “Certificate of sending the Notice by post”[5] showed that a “Notice demanding the supply of the driver’s particulars” (dated 3 December 2015) was mailed to the address of the Appellant on 3 December 2015.

(8)  The address on the Notice dated 3 December was the address of the Appellant.

(9)  After the Appellant had received and read the Notice dated 3 December 2015, he completed and signed it in reply to the Police (“The first Written Reply of the Appellant”)[6]. A letter written by the Appellant was also attached to his first Written Reply[7].

(10)  Another “Notice demanding the supply of the driver’s particulars” was received and read by the Appellant. Then he completed and signed it (on 16 March 2016) in reply to the Police (“The second Written Reply of the Appellant”)[8].

3.  Apart from the above undisputed facts, the Prosecution also called 5 witnesses who were respectively:

(a)  The first Prosecution Witness, Police Constable 5868, YEUNG Ho-kai (Transliteration) (“PC Yeung”);

(b)  The second Prosecution Witness, Senior Woman Police Constable 56516, KWOK Dan-lam (Transliteration) (“PC Kwok”);

(c)  The third Prosecution Witness, Police Clerical Assistant, Mr TSUI Wai-ming (Transliteration) (“Mr Tsui”);

(d)  The fourth Prosecution Witness, Mr Wong; and

(e)  The fifth Prosecution Witness, Police Constable 23825, KWAN Tit-bong (Transliteration) (“PC Kwan”);

4.  The following is the summary of the evidence of all Prosecution Witnesses[9].

The first Prosecution Witness, PC Yeung

5.  He confirmed the chain of evidence in relation to exhibit P1, that the compact disc was intact with its content untampered with, and that at all material times, the system was functioning properly.

The second Prosecution Witness, PC Kwok

6.  Based on the above compact disc and the 2 photos therein, he (sic) confirmed that the vehicle that had run a red light was a taxi bearing the registration mark KU4619. According to the relevant record, she sent a “Notice demanding the supply of the driver’s particulars” to Ching Cheung by post. On 30 November 2015, on behalf of Ching Cheung, Mr Wong returned to the Police the “Written Reply of Ching Cheung”[10], which stated that the Appellant was the driver of the above taxi at that time. On the same day, she instructed her colleague Mr Tsui to send the “Notice dated 3 December 2015” to the Appellant by post according to the address record kept by the Transport Department. This Notice was not returned by the Post Office, nor did the authority concerned ever receive any reply from the Appellant. Therefore, in January 2016, she called and was able to reach the Appellant to follow up the case. The Appellant asked her to give him more time and fax the document to him. On 3 February 2016, she received “The first Written Reply of the Appellant”[11] and a letter[12]. On 3 March 2016, she arranged for the Appellant to view the above 2 photos personally.

The third Prosecution Witness, Mr Tsui

7.  On the instruction of PC Kwok, he sent the “Notice dated 3 December 2015” to the Appellant by post. The name and address on the notice are correct and the notice has never been returned by the Post Office. He submitted the “Certificate of sending the Notice by post”[13] to support his assertion that the said notice had been mailed to the Appellant’s address.

The fourth Prosecution Witness, Mr Wong

8.  He confirmed that he had known the Appellant before the incident and that he (Mr Wong) completed and signed the “Ching Cheung’s Written Reply” on behalf of Ching Cheung. He also confirmed that the Appellant managed the said taxi on behalf of Ching Cheung at that time. As to the incident of contravening the traffic light, the Appellant did not make any enquiry with him or Ching Cheung. He (Mr Wong) had no idea if the Appellant had made any enquiry in this regard. Under cross-examination, he confirmed that the vehicle shown in the photos was the taxi bearing registration mark KU4619.

The fifth Prosecution Witness, PC Kwan

9.  On 16 March 2016, he paid a visit to the Appellant at his registered address kept with the Transport Department and issued another “Notice demanding the supply of the driver’s particulars” to him. The Appellant completed and signed that document at once (“The second Written Reply of the Appellant”)[14].

The Defence case

10.  At the trial, the Appellant attended court and testified. His evidence can be summarized as follows[15].

11.  He is a self-employed administrator of taxi (whose duties include arranging taxis for lease). He has engaged in this industry since 2001, managing about 60 taxis in total. He has attained an education level of Form 3 and had held a taxi driving licence for over 40 years. Before the incident, he had already known Mr Wong of Ching Cheung and Ching Cheung entrusted him (the Appellant) to manage 12 taxis, including the one bearing registration mark KU4619. Mr Wong, WONG Ching-cheung (the father of Mr Wong and the person in-charge of Ching Cheung) and Ching Cheung are all his business partners.

12.  Although he confirmed that the taxi shown in the photo was an urban taxi bearing the registration mark KU4619, he stated that the taxi was not one of those he managed.  This was because that taxi was not rented out then and instead it was parked unattended at an hourly on-street metered parking space. At around 5pm that day, he personally parked the said taxi in that parking space which was near his office.  The location “was supposed to be known by him alone”.

13.  At around 8pm that day, he left his office and proceeded to the said parking space to make the hourly-rated payment. After that, he left.

14.  He put the taxi keys inside a box with a lock kept in his office. He left only after he had locked the box. There were 3 sets of keys to that box in total: 1 set was kept on his person, 1 set was kept in his home while the last set was kept in an unlocked drawer of his desk in the office. There were 2 sets of keys to the said taxi in total: 1 set was stored in the said box while the other set was kept by the driver who rented the said taxi. The only entrance and exit of the office (i.e. the main door) was locked. The people who had the keys to the main door of the office were himself, a Mr Yeung, a Mr Shek and a Ms Lee.

15.  At the time of the incident, he was not driving  the said taxi.

The findings of the Magistrate

16.  The Magistrate refused to accept what the Appellant said, i.e the taxi involved in the alleged offence was not one of the taxis managed by him and found that the taxi was managed by the Appellant.

17.  He also found that even though the Appellant could prove that he did not know the particulars of the taxi driver concerned, he could not prove that he failed to ascertain the relevant particulars even with reasonable diligence.

18.  On that basis, the Magistrate found the Appellant guilty.

Grounds of appeal

19.  The Appellant was unrepresented[16] in this appeal. He raised the following points:

(1)  He was a taxi manager by profession. His main duty was to give guidance to the unemployed and the elderly to help them become taxi drivers. He put forward the slogan of “Being unemployed is not hopeless, neither is growing old”, encouraging those people to rejoin the workforce.

(2)  In 2003, he started to launch this training programme. He trained up a lot of quality drivers whom he referred to large vehicle firms or individual vehicle owners to rent their taxis.  He was not doing it for any commercial purpose as the whole training programme was conducted out of kindness and love.  It was well supported by vehicle firms and individual vehicle owners and they sponsored the programme fees.

(3)  He received a notice from the police requiring him to provide the particulars of the driver of taxi KU 4619 in the relevant time period. As the taxi of that registration number was entrusted to him for management by the owner, Mr Wong Ching-cheung,  so he searched for the rental record of the taxi for that day. According to the record, the taxi was not rented out on that day.  Therefore, he replied to the police that the taxi was not rented out, and he could not provide the particulars of the driver. Misunderstandings arose from the documents, and the police were adamant that he was the driver at the material time and prosecuted him.

(4)  The conviction was neither reasonable nor fair because:

(i)  the case was not a traffic accident. It was not fair that the police inferred that the vehicle involved was one of the taxis managed by him merely based on the image captured in the video;

(ii)  he was a training instructor and manager of taxi drivers by profession. It was unreasonable for the prosecution to allege that he was the driver at the material time merely by inference;

(iii)  the notice concerned was not a valid document in law and had no legal effect, therefore, even though he failed to provide the particulars of the driver within 21 days, he did not commit any offence.

Discussion and consideration

20.  The relevant provisions are set out in section 63 of the Road Traffic Ordinance[17] (“the ordinance”), the important provisions of which are as follows:

“(1) Where the driver of a vehicle is suspected of having committed an offence under this Ordinance, …any person, including both the registered owner and the person suspected of being the driver of the vehicle, shall on demand made within 6 months after the date of the alleged offence …give to a police officer in the manner prescribed in this section the name, address and driving licence number—

(a) in the case of an alleged offence, of the driver of the vehicle at the time of the alleged offence;

 ….”

The aforementioned demand may be by means of a notice served by post on the person on whom it is made.

21.  The prescribed manner to provide particulars is specified in section 63(4):

“A notice served under subsection (2) shall require the person to whom it is addressed---

(a) to furnish, within 21 days after the date of the notice, to a police officer specified therein, a written statement, in such form as may be specified in the notice, giving the name, address and driving licence number ------

(i) in the case of an alleged offence, of the driver of the vehicle at the time of the alleged offence;

(ii) in the case of an accident, of the driver of the vehicle at the time of the accident or of the last driver of the vehicle prior to the accident, and his relationship, if any, to any such driver; and (Replaced 66 of 1984 s. 8)

(b)  to sign the said statement.”

22.  Therefore, upon receiving the “Notice demanding the supply of the driver’s particulars”, the suspected driver must fulfil the following obligations:

(1)  within 21 days after the date of the notice, in the prescribed manner;

(2)  furnish particulars of the driver to the police; and

(3)  sign the notice.

If he fails to fulfil the aforementioned obligations, then, unless he can prove[18] that:

(1)  he did not know; and

(2)  could not with reasonable diligence have ascertained the relevant particulars of the driver concerned,

he commits the offence specified in section 63(6) and it is also the offence for which the Appellant was prosecuted.

23.  I shall discuss and consider the points raised by the Appellant one by one.

Points (1) and (2)

24.  These two points at most provide some background information, but they are not crucial to the decision of this case.

Point (3)

25.  The Appellant misunderstood the allegation of the prosecution. The basis of this prosecution was not that the Appellant was the driver who failed to comply with a traffic regulation, but that he did not comply with the statutory demand upon receiving the notice, nor could he prove that he had a statutory defence under paragraph 22.

26.  If the Magistrate’s finding was proper, not only was the taxi involved in the offence bearing the registration mark KU4619, it was also the taxi managed by the Appellant which bore the same registration mark.

27.  After the relevant notice was served on the taxi owner, Ching Cheung, Ching Cheung stated in its written reply that the Appellant was the driver of that taxi in the relevant time period.

28.  Hence, the police were fully justified and had a legal basis for issuing the notice to the Appellant[19].

29.  The prosecution alleged that the Appellant did not provide the driver’s particulars according to the ordinance and as required by the notice. There is no doubt that the Appellant had received the relevant notice. As a matter of fact, the Appellant indeed did not provide such particulars. 

30.  In the letter[20]attached to “The first Written Reply of the Appellant”, the Appellant wrote:

“ … I checked the record and found that the taxi KU4619 had been entrusted to our company for management by the vehicle owner WONG Ching-cheung. Drivers would be arranged by our company. No driver rented the taxi on that day, so it was not rented out. The taxi was parked in the vicinity of the company at Fuk Wah Street. It was found that there were signs of the taxi being moved after being parked there in that morning. However, as no driver admitted having driven that taxi for business and the company did not suffer any loss, I just kept a record of the incident but did not pursue the matter further. Unexpectedly, there was a (traffic) contravention on that day. I am sorry that I was not able to provide the particulars of the driver on that night.”

31.  In “The second Written Reply of the Appellant”[21], the Appellant wrote:

“The taxi was not rented out at that time. It is impossible to provide the particulars of the driver.”

32.  The key issues of this case are whether:

(1)  the vehicle involved in the offence was the one managed by the Appellant bearing registration mark KU4169 (sic); and

(2)  whether he could prove that he had a statutory defence as stated in paragraph 22.

which are not the points raised by the Appellant.

Point (4)

33.  The Appellant contended strongly that the verdict was unreasonable and unfair. He raised several matters[22] to support his argument. I shall discuss and consider them one by one.  

Item (1)

34.  This matter concerns whether the vehicle involved in the offence was the taxi managed by the Appellant bearing registration number KU4169 (sic).

35.  The Appellant raised two issues in both the trial and the appeal:

(i)  the registration mark of the vehicle involved in the offence was false; and/ or

(ii)  even if the vehicle involved in the offence was the taxi managed by him, he did not know who the driver was at the material time.

As for (i), the evidence showed that the registration mark of the vehicle involved in the offence could be clearly seen, i.e KU4169 (sic) and the vehicle concerned was also a taxi. The person-in-charge of the vehicle company, Mr Wong, confirmed that the vehicle in the photos was the taxi of his company. Although he made the identification merely based on the photos, at least he did not suspect that the taxi was not the one from his company by reference to the model, appearance etc.  Police Constable Kwok had also shown the photos to the Appellant for viewing and the latter did not raise any query at that time. 

The court can only consider the evidence that has been produced and cannot speculate. I found that the evidence supports the finding of the Magistrate that the relevant vehicle was the taxi managed by the Appellant.

For (ii), although the Magistrate did not entirely believe the Appellant’s assertion that he did not know who the driver was[23], the burden of proof of the Appellant is just on a balance of probabilities. What is important is that the Magistrate found the Appellant guilty because he “failed to prove that he could not ascertain the relevant particulars even with reasonable diligence”[24], not because he rejected the Appellant’s assertion that he did not know who the driver was.

36.  This approach in the Magistrate’s consideration is the crux of the matter. I shall analyze it in paragraphs 43-54.

Item (2)

37.  As mentioned above, the prosecution simply did not allege that the Appellant was the driver of the vehicle involved in the offence. This is not a ground which supports the appeal. 

Item (3)

38.  The Appellant cited the verdict of a magistrate in another case[25]. He submitted that the notice served on him in this case was invalid. The verdict of that case was based on the judgment of Mr Justice K. K. Pang of the Court of First Instance in HKSAR v WONG Pui-hon (transliteration)[26] where Mr Justice Pang said the following[27]:

“The police prosecuted the appellant under section 63(1)(a). The provision in that section does not require the appellant to provide the particulars of the last driver driving the vehicle. (see paragraph 6 above). Hence, it can be seen that the magistrate misconstrued the legal provision and probably confused section 63(1)(a) with 63(1)(b) with regard to the requirements on the accused.”

In the case cited by Appellant, the magistrate found the accused not guilty mainly because the police required the accused to provide the identity of the last driver[28] of the relevant vehicle rather than properly requiring  the identity of the driver[29] of the vehicle at the time of the offence, when the case did not involve a traffic accident, a matter which was incorrect.  The magistrate’s concern in that case coincided with Mr Justice Pang’s.  

39.  This case did not involve a traffic accident either. It involved the commission of an alleged offence which fell within the circumstances stipulated in section 63(1)(a). The prosecution was also brought under section 63(1)(a).

40.  It is difficult to conclude whether this case also involves the same issue as that in the case cited by the Appellant as the wording of the document requiring the particulars in that case cannot be ascertained for the time being. The content of the notice received by the Appellant is as follows:

“The driver of vehicle of registration mark KU4619 at about 11:13pm on 11 November 2015 at Castle Peak Road, Yuen Long (East bound) at junction with Ma Wan Road is involved in a traffic accident / is suspected of having committed a traffic offence, namely, failing to comply with traffic signals.

You, suspected of being the last driver of the vehicle, are required by law to provide the particulars of identity of the driver (perhaps you yourself) within 21 days from the date of this notice by completing items A to D below (in block letters if in English) and signing the form before returning it to the issuing police officer indicated below.”

Looking at the wording, the police only demanded the identity of the driver, “not that of the last driver”. It seems that by stating that the Appellant was suspected to be the last driver of that vehicle, they were only making clear to the Appellant the justification of the demand and not requiring him to provide the particulars of the last driver. Hence, I do not think that this case involved the same question as that concerned with Mr Justice Pang’s case.

41.  However, I consider that there is room for improvement in the wording of the demand notice. It would be more desirable if it could be made clear to the recipients what particulars they need to provide, like in this case, it would have been better if the particulars required to be furnished were those of the driver who was suspected to have committed the traffic offence then and there.

42.  In this case, perhaps because the Appellant had communicated with the police constable, it can be seen from the reply he gave to the police that the Appellant did not misunderstand the demand of the police and the particulars furnished by him were all related to the time of the offence. As the Appellant knew clearly and exactly the demand was for the particulars of the driver of the vehicle at the time of the offence and he failed to provide them, therefore, notwithstanding that there is room for improvement in the wording of the notice, realistically, there is no substantial injustice in this case.

 The Magistrate’s handling of the statutory defence

43.  According to section 63(5) of the ordinance:

“In proceedings for an offence under subsection (6)(a), it shall be a defence for the defendant to show that he did not know, and could not with reasonable diligence have ascertained[30], the name or address or driving licence number of the driver of the vehicle at the time of the alleged offence or accident or of the last driver of the vehicle prior to the accident, as the case may be.”

44.  According to the Chinese version of the provision, the Appellant, in order to rely on this statutory defence, must prove on the balance of probabilities that:

(1)  He did not know the particulars concerned of the relevant driver; and

(2)  The particulars concerned still cannot be ascertained after reasonable diligence.

45.  Regarding (2), the wording in the Chinese version may give the impression that the accused person is required to exercise reasonable diligence, this is also what the Magistrate mainly examined in this case, but the English version is somewhat different and it reads:

“could not with reasonable diligence have ascertained”.

The Chinese version of this wording in many ordinances are:

“Even though reasonable diligence has been exercised, it still cannot be ascertained”.[31]

46.  Despite this, I do not think that there is a real difference between the Chinese and English versions of the statutory defence of the offence in this case. It is just that the Chinese version in some other ordinance appears to make it easier for people to grasp the legal requirement.

47.  The foregoing is actually two different types of defence, as explained in the case of HKSAR v Kong Hing Agency Ltd[32] by Ma CJHC [as Ma CJ then was].

48.  In that case, Chief Judge Ma described the type of statutory defence of the offence in this case as “reasonable diligence defence”, and another type of defence of “due diligence defence”, i.e. whether the accused had exercised due diligence.  Chief Judge Ma pointed out:

“(1) ‘Reasonable diligence’ and ‘due diligence’ are different requirements. The term ‘reasonable’ means whether the effort is reasonable, which is assessed objectively. The court must examine what kind of efforts will be reasonably expected in the circumstances of that case;

(2) In other words, the question to be asked is: In the circumstances of that case, what would a reasonable person expect the accused to do? It is not crucial what the accused has actually done because even if he does nothing, he will not be criminally liable if the case is that he would not know the circumstances of contravention even with reasonable diligence;

(3) Assessment also has a subjective aspect, which is the accused’s own circumstances.”[33]

49.  As to what is reasonable, the Court of Appeal agreed with what Stock J [as Stock NPJ then was] stated in R v Mulitex (Exports) Ltd.[34]: This is not a requirement to do everything possible but only to do what is reasonably required under ordinary circumstances, having regard to expense and difficulty.  What is reasonable diligence or a reasonable step depends on the legislative context in which those words appear and the facts of the case.[35]

50.  Ms Chan Sze Yan, Acting Senior Public Prosecutor, representing the Respondent, agreed that the statutory defence of the offence in this case was “reasonable diligence defence”.

51.  She argued that from the analysis in the Statement of Findings, it is not that the Magistrate failed to consider whether any circumstances of reasonable diligence defence existed in the case, he asked himself one question, “Is this the normal mode of operation of an experienced taxi manager?”

52.  In the trial, the Magistrate made the following observations concerning the statutory defence[36]:

“In any event, even if what the defendant said was true, I also noticed the following:

(a) After the incident, regarding the incident of failing to obey the traffic light signal, Mr Wong confirmed that the defendant did not make any inquiries with Mr Wong or Ching Cheung, and he also did not know whether the defendant had made any relevant inquiries; what is of particular importance is that the defendant did not challenge Mr Wong regarding this;

(b) after receiving the notice of 3^rd December, 2015, there was insufficient evidence to show that the defendant had made any effort to find out who at that time had moved the taxi [parked in the parking space];

(c) there is insufficient evidence to show that the defendant had made any effort to inquire Mr Yeung, Mr Shek, or Miss Lee [whom respectively held the door keys] whether they had appeared in the office that night;

(d) there is insufficient evidence to show that the defendant had made any effort to find out the situation of usage of the keys to the box [three sets in total] [for instance, inquire about who had used it at that time]; and,

(e) there is insufficient evidence to show that the defendant had made any effort to find out the situation of usage of the car key [two sets in total] in that evening.”

53.  What the Magistrate should examine is, in the circumstances of this case, what a reasonable person would expect the Appellant to do and whether the situation is that even if these things have been done, it may still be futile.  In my opinion, the Magistrate mainly examined whether what the Appellant had done was enough or reasonable, rather than in the circumstances of this case, what a reasonable person would expect the Appellant to do to ascertain the relevant information.  Having carefully considered the submissions made by Acting Senior Public Prosecutor Ms Chan and taking into account that the Magistrate in the Statement of Findings mainly focused on assessing what efforts were made by the Appellant, I think the Magistrate did not address the real  root of the problem when considering the statutory defence and he placed too much emphasis on whether the Appellant had exercised reasonable diligence rather than considering whether the circumstances were that even with reasonable diligence, the necessary information still could not be ascertained.

54.  Therefore, I consider that the Magistrate’s findings are not safe.

55.  Magistracy appeals are conducted by way of re-hearing, I am entitled to examine the evidence that has been produced in the trial to determine whether upholding the original conviction is unfair or not.

56.  In my opinion, it is not appropriate in the circumstances of this case to do so because the Appellant was not represented in the trial and since the Magistrate did not accurately grasp the requirements of the statutory defence, I could hardly expect him to properly inform the Appellant of the relevant legal requirement[37] and properly assist him to adduce evidence if necessary.

Conclusion

57.  In view of the Magistrate’s flaw in dealing with the statutory defence, I would allow the appeal, quash the conviction and set aside the sentence.

Remarks

58.  The wording of the relevant ordinance in this case, as compared with some ordinances, is that although the English versions are the same, the Chinese versions are different. The Department of Justice should consider whether any follow-up actions should be taken.

(Translator’s note: words in italics are English in original.)