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HCMA98/2010
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
(Appellate Jurisdiction)
MAGISTRACY APPEAL NO. 98 OF 2010
(ON APPEAL FROM ESS 3383 OF 2009)
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BETWEEN
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HKSAR |
Respondent |
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TANG KA NIN (鄧嘉年) |
Appellant |
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Before : Deputy High Court Judge P. Li in Court
Date of Hearing : 19 May 2010
Date of Handing Down Judgment : 7 July 2010
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J U D G M E N T
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1. The appellant was convicted of speeding by more than 45 km/h, under section 41(1)(a) of the Road Traffic Ordinance, Cap. 374 (“RTO”). He was fined $2,100 and disqualified for six months. He appealed against the conviction.
2. The prosecution alleged that on 3 January 2009, the appellant drove a private car (JL3383) within the Western Harbour tunnel area at a speed of 107 km/h. His speed was detected by a police officer using a laser gun. The speed limit at that area was 50 km/h.
3. The Deputy Special Magistrate rejected the argument that the summons should have been brought under section 7 of the West Harbour Crossing Bylaw, Cap. 436D (“WHCB”). She accepted the evidence of the police officers and convicted the appellant.
4. The appellant raises two grounds of appeal :
(a) The summons should have been laid under the WHCB.
(b) The conviction was against the weight of the evidence.
GROUND (A)
5. I understand the argument of the appellant as follows :
(a) Section 26 of Western Harbour Crossing Ordinance, Cap. 436 (“WHCO”) provides that the RTO apply to the tunnel area save to the extent of any inconsistency with any regulations or bylaws made under WHCO.
(b) Sections 41 of RTO and section 7[1] of WHCB create offences of speeding respectively.
(c) Section 41 of RTO provides that a defendant is liable :
(i) to a maximum fine of $4,000[2];
(ii) to incur 10 driving offence points[3]; and,
(iii) to a mandatory minimum disqualification for six months.[4]
(d) Section 25 of WHCB provides that a defendant in breach of section 7 is liable to a maximum fine of $5,000. By virtue of Cap. 375, a defendant will also incur ten driving offence points if speeding over 45 km/h.[5]
(e) The WHCB or WHCO is silent as to the power to disqualify.
(f) Section 41 of RTO is therefore inconsistent with section 7 and section 25 of WHCB in the power to disqualify.
(g) By virtue of section 26 of WHCO, section 41 of RTO does not apply to speeding offences in the tunnel area.
(h) Within the tunnel area, it is the intent of the legislature that only WHCB applies.[6]
Legislative intent
6. The wording of section 26 of WHCO[7] is plain and clear. The provisions of RTO are applicable to the tunnel area save in the extent of any inconsistency with any regulations or bylaws made under WHCO.
7. Apart from section 26 of WHCO, there are other provisions in WHCO or WHCB which provide that other ordinances apply to the tunnel area.
8. Section 32 of WHCO confers power to the Western Harbour Crossing Company to make bylaws. Section 32(7) provides that :
“without prejudice to any Ordinance relating to the prosecution of criminal offences or to the powers of the Secretary for Justice in relation to the prosecution of criminal offences, prosecutions under any bylaw made under this section may be brought in the name of the Company.”
9. While the subsection confers the power to the Company to prosecute offences under WHCB, it does not exclude the power of the Secretary for Justice to prosecute criminal offences in general.
10. Further, section 26 of WHCBprovides that :
“nothing in this Bylaw shall be taken to restrict, derogate from or otherwise interfere with any power conferred or duty imposed by or under any law upon any person in the service of the Government.”
11. It is clear from this section that the WHCB does not exclude the power and duties of other government servants in the tunnel area.
12. Given the above, I am sure that section 26 of WHCO only excludes RTO to the extent of any inconsistency. It does not confer an exclusive power tothe regulations or bylawsmade under WHCO in the tunnel area.
Is there‘inconsistency’?
13. Counsel for the appellant argues that section 7 and section 25 of WHCB are silent in relation to the power to disqualify. However, section 41 of RTO provides for a mandatory minimum disqualification of six months for speeding over 45 km/h. This is the inconsistency caught by section 26 of WHCO. Counsel submits that section 41 of RTO is therefore not applicable. In the circumstances, the appellant should have been summonsed under section 7 and section 25 of WHCB which only attract a maximum fine of $5,000.
14. In deciding this point, it is necessary to look at the wording of the empowering provisions. There are two related sections :
(a) Section 32(4) of WHCO provides that :
“bylaws made under this section may provide that a contravention of any specified provision thereof shall be an offence and may provide penalties therefore not exceeding a fine of $5,000.”
(b) Section 25 of WHCB provides that :
“any person who contravenes sections 5, 6, 7...or 24 shall be guilty of an offence and shall be liable on conviction to a fine at level 2.”
15. The two sections only deal with the power to fine. They are silent on the power to disqualify or incurrence of driving-offence points. The wordings of both sections, however, do not exclude other modes of penalty.
16. In fact, by virtue of the Road Traffic (Driving-offence Points) Ordinance, Cap. 375, a person who breaches section 7 of WHCB will incur 10 driving-offence points. This is an additional mode of penalty for breach of WHCB.[8] Incidentally, counsel for the appellant has no dispute in relation to this power albeit that both WHCB and WHCO are also silent in this aspect.
17. It is also common ground that the provisions under RTO, which create offences of careless driving, dangerous driving causing death and driving under the influence of alcohol etc.[9], are enforceable within the tunnel area. The WHCO and its bylaws and regulations however are silent in relation to these offences.
18. If the argument of the appellant were right, the provisions creating the offences mentioned above would be inconsistent with WHCB as the Bylaws were silent about these offences. Those provisions would not be applicable in the tunnel area. This interpretation would create absurd situations.
19. In my view, there is nothing objectionable that two provisions under different ordinances cover the speeding offence in question. There is no unfairness to the person who committed the speeding offence.
HKSAR v Lau Yin Chun, Lucilla HCMA444/2004
20. In Lau Yin Chun, the appellant was summonsed under section 7 of WHCB for speeding at a speed of 116 km/h in the tunnel area. The Special Magistrate disqualified her for six months using the power under section 69(1)(h) of RTO. The appeal against the disqualification order was allowed. Nguyen J decided that section 69(1)(h) did not empower a court to disqualify a defendant who was summonsed under section 7 of WHCB. That section only applied to criminal offences not included in section 69(1)(a) to (g), and when a motor vehicle was used during the commission of those offences or to escape apprehension.[10]
21. I do not think paragraph 4 of the judgment supported the appellant’s argument in the present appeal. On the contrary, it envisaged the application of RTO if the offence was serious.[11]
22. Having considered the above, I disagree with Counsel for the appellant. The fact that section 7 of WHCB was silent in the power to disqualify does not amount to ‘inconsistency’ under section 26 of WHCO. Section 41 of RTO is applicable to the tunnel area. I reject ground (a).
GROUND (B)
23. Since the accuracy of the laser gun may be affected by a small movement of 0.5 cm to 1 cm, the appellant argues that the heavy traffic at the scene must have affected its accuracy.
24. PW1, the operator of the laser gun, was cross-examined in detail in relation to the operation of the laser gun during the trial. He disagreed that the heavy traffic in the vicinity would shake the laser gun which was mounted on a tripod. He also disagreed that he might have mistaken another vehicle as the appellant’s vehicle.
25. The Deputy Special Magistrate had carefully considered the evidence of all prosecution witnesses especially PW1. She was satisfied that the reading obtained at that time was accurate.[12]
26. In my view, the Deputy Special Magistrate could not be criticized for accepting the evidence of PW1. Her conclusion was safe. I reject ground (b) also.
CONCLUSION
27. Given the above, I dismiss the appeal. I order that the appellant to surrender his driving licence to Eastern Magistrates’ Court within seven days from the date of this judgment.
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( Patrick Li ) |
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Deputy High Court Judge |
Mr Martin Hui, SPP of Department of Justice, for HKSAR
Mr Giles Surman, instructed by Messrs Ho, Tse, Wai & Partners, for the Appellant
[1] In conjunction with section 25, WHCB.
[2] By virtue of section 113C(3) of the Criminal Procedures Ord., Cap. 221, the maximum is now $5,000.
[3] Section 4, and schedule, RTO (Driving-offence Points) Ord., Cap 375.
[4] Section 41 (3)(b) & (4)(a) RTO.
[5] Section 4, and schedule, RTO (Driving-offence Points) Ord., Cap 375.
[6] Paragraph 15(j) of the appellant’s skeleton submission.
[7] “(1) Save to the extent of any inconsistency with any regulations made under section 22 or bylaws made under section 32, the provisions of the Road Traffic Ordinance (Cap 374) shall apply to the roads in the tunnel area as if they were roads within the meaning of that Ordinance.”
[8] See section 4 and Schedule of Cap. 375.
[9] Sections 36 to 39A, RTO.
[10] Para 9 and 10 of the judgment.
[11] “It is common ground between the parties on appeal that prosecutions for offences committed contrary to the Bylaws made under the Ordinance can be initiated by the Company in the name of the Company …..It is also common ground that if an offence not covered by the Bylaws is committed by a person, for example, dangerous driving or careless driving, which the company considers sufficiently serious, then the matter may be referred to the police who, after inquiries, may initiate a prosecution under the Road Traffic Ordinance or indeed any other ordinance if an offence other than a driving offence was committed.”
[12] Paragraphs 101(a) to (c), page 90, Appeal Bundle.
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