HKSAR v. WISDOM KINGDOM LTD

HCMA 131/2014

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO. 131 OF 2014

(ON APPEAL FROM ESK 29 OF 2013)

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J U D G M E N T

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1. The Appellant is a company which was at the material time the registered owner of a motor vehicle (hereinafter called the vehicle). It was summonsed for contravention of the provision of section 4 of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 (hereinafter called the Ordinance).

2. In the Eastern Magistrates’ Court the Appellant did not admit the contravention.  After trial, the Deputy Special Magistrate (hereinafter called the Magistrate) found the contravention proved and imposed on the Appellant a total fine of $640.  Further, the Appellant was ordered to pay costs of $875. 

3. The Appellant appeals against both conviction and sentence.

4. The original trial was conducted in Chinese. Counsel representing the Appellant, Mr Daniel Hui, asked to present his appeal in English, for the reason that the case involved primarily legal argument, with little dispute on the facts.  There being no objection from the Respondent, I acceded to the request and indicated that in the circumstances I will prepare the judgment in English.  Both parties agreed.

Facts of the Case

5. The vehicle in question was a private car.  A police officer found that it was parked on the left lane of Gilman Street right in front of the white line before the traffic light.  Two to three cars parked behind the Appellant’s vehicle.  The vehicle stayed in the position despite the traffic light, as observed by the officer, changed from green to red, and then to green again.  At the driver seat of the vehicle was a man not of Chinese origin.  He was reading newspaper.  During the observation which lasted for about 2 minutes, other parked vehicles moved away.  The Appellant’s vehicle stayed. The officer approached the vehicle and knocked lightly on the window next to the driver seat.  There was no response.  The officer asked the driver what he was doing and explained to him about his contravention of the law. When the officer was issuing a fixed penalty ticket, the driver responded by saying in English, “You are not fair, why you just give me a ticket and other cars go away, why?” 

6. A Notice of payment of fixed penalty was issued to the registered owner of the vehicle.  There was no payment. 

7. As the Appellant was the registered owner of the vehicle, it was summonsed for the contravention.

Grounds of Appeal (Conviction)

8. Mr Hui, for the Appellant, put forward the following grounds of appeal :

(1) The conviction is unsafe or unsatisfactory in particular as :

(a) There is no evidence in relation to volume of traffic on the 2^nd lane;

(b) The Appellant’s vehicle was the leading parked vehicle, several vehicles parked behind it;

(c) The relevant part of the road was not sign-posted as a “No Waiting” area;

(d) There was a driver inside the vehicle.

(2) In deciding whether the element of “likely to cause an unnecessary obstruction”, the Magistrate failed to properly take into account the following matters :

(a) The ability and likelihood of the Appellant’s vehicle to move;

(b) Lack of evidence regarding the volume of traffic on the 2^nd lane;

(c) The absence of other vehicles being driven along the 1^st lane;

(d) All the surrounding circumstances.

(3) The Magistrate erred in failing to apply properly the relevant principles elucidated in R v Crawley [1994] 1 HKCLR 156 and HKSAR v Ball HCMA 175/2005.

(4) The Magistrate erred in failing to consider or consider properly the meaning of “unnecessary obstruction”.

(5) The Magistrate misdirected himself on the meaning of a green traffic light and wrongly held that the Appellant’s vehicle was required to go forward by such a green light.

Discussion and Consideration

9. The grounds are very much inter-related and I therefore do not propose to go through the grounds one by one.  I will focus on the discussion and consideration of the main issue in the case : whether it has been proved to the appropriate standard that the existence of the Appellant’s vehicle was likely to cause an unnecessary obstruction. 

10. In this regard, Mr Hui expressly said that if the Court finds the existence of the vehicle was likely to cause an obstruction, whether such obstruction was unnecessary is not in issue.

11. I will begin by setting out the following matters which concerns this offence but are not contentious in this appeal.

12. Firstly, despite obviously the vehicle was not driven at the time of the offence by the Appellant, which is a company, it is provided in section 14 of the Ordinance that :

“(1) Subject to section 3(2), the person liable for the fixed penalty under section 13 shall be the registered owner for the time being of the motor vehicle when the contravention is committed.

(2) In any proceedings for recovery of the fixed penalty it shall be no defence-

(a) that the contravention was committed without the knowledge or consent of the registered owner; or

(b) that at the time the contravention was committed the motor vehicle was driven by or was in charge of a person other than the registered owner:

Provided that it shall be a good defence for the registered owner to prove that, at the time the contravention was committed, the motor vehicle was taken and driven away without his consent by a person other than a driver employed by him or was stolen.”

13. It was indeed pursuant to this section that the Appellant was held liable to pay the fixed penalty.

14. Secondly, there is another limb of the offence : likely to cause danger to other persons using the road.  This limb was not relied upon by the prosecution in this case.

15. Back to the main issue, the Magistrate said in his Statement of Findings that one of the elements of offence is causing of obstruction by the vehicle[1]. Mr Hui submitted that the Magistrate erred in his understanding of the elements to be proved to substantiate the contravention as it is not necessary to prove that the vehicle has actually caused obstruction.  I entirely agree.  Section 4 of the Ordinance provides :

“No person shall cause or permit any motor vehicle to stand on a road in such a position or in such condition or in such circumstances as to be likely to cause any unnecessary obstruction of such road or danger to other persons using the road.”

Be that as it may, the Magistrate has made clear that the basis of his conclusion was that the parking of the vehicle there was likely to cause obstruction.[2]

16. In reaching his conclusion, the Magistrate had had regard to the following matters :

(1) The observation of the police officer which lasted about 2 - 3 minutes;

(2) The traffic light had turned green on two occasions during the observation;

(3) The Appellant’s  vehicle did not move during the observation;

(4) The position of the vehicle and that there were other vehicles behind it;

(5) What happened between the officer and the man in the driver seat;

(6) Generally speaking, traffic flow in that section of the road was not light and there were lorries loading and unloading goods;

(7) There was no “no waiting” sign;

(8) There was no yellow line painted on the road;

(9) Most vehicles parked also on the left lane have drivers in them but none of them blew horn or by any means requested the Appellant’s vehicle to move;

(10) Other vehicles moved away during the observation of the officer.

17. The Magistrate also made the following observations :

(1) There were only two lanes in that section of the road and the vehicle had occupied the left lane;

(2) The vehicle was parked in front of the traffic light, within 1 meter from the white line;

(3) All vehicles should move and not stop.

18. In presenting his grounds of appeal, Mr Hui outlined the circumstances at the scene.  What he said, as follows, were not in dispute.  The relevant part of Gilman Street was one-way, leading to Des Voeux Road Central.  It has two lanes.  All vehicles have to turn left when they reach the junction with Des Voeux Road Central.  There was a pedestrian crossing at the junction.  The traffic light and the white line situated at the far end of the pedestrian crossing from the junction[3].

19. Mr Hui then brought to the Court’s attention the following matters mentioned by the Magistrate in his Statement of Findings.  He made criticism when he went along and submitted that the Magistrate erred in saying what he did in the Statement of Findings.  I will set out these matters below and add my observation :

(1) In paragraph 23(iii), the Magistrate said vehicles must move forward when the green traffic light is on.

  Mr Hui criticized that this view is not consistent with the Road Users’ Code.  In the 2000 edition, the Code states the meaning of a green traffic light is “you may move across the junction or crossing provided that it is safe to do so.”[4]

  I accept that the Magistrate had gone too far in this regard.  However, the evidence that the traffic light has turned green two times is a matter which the Magistrate was entitled to take into account.  From the whole of the Statement of Findings, it is clear that the Magistrate did not reach his conclusion solely on the basis that the Appellant’s vehicle did not move when the traffic light turned green, he reached his conclusion after having considered a set of matters constituting the overall circumstances of the case.

(2) In paragraph 27, the Magistrate said the vehicle caused obstruction in the road as it was the first car stopped in front of the traffic light.

In my judgment, “caused obstruction” might have been an unfortunate choice of words in the course of the Magistrate’s consideration.  It is not necessary that an obstruction had actually been caused.  That an obstruction was likely to be caused is sufficient to amount to the contravention.  However, it is important to note, as I mentioned earlier, the Magistrate made it clear that the basis of his conclusion was the parking was likely to cause obstruction.

(3) In paragraph 31, the Magistrate said he disagreed with the submission that the absence of driver is a material matter in the consideration.

   In my judgment, whether the driver is present is in most cases a relevant factor to take into account in deciding whether an obstruction was likely to be caused.  A driver who is present may be alert to the circumstances and willing and ready to move the car to avoid the obstruction it would have caused if not moved.  I therefore cannot agree with the Magistrate.  Nevertheless, I note the Magistrate said later in the same paragraph, that the most important issue is whether the vehicle was likely to cause obstruction of the road.  He is right.

In consideration of the case, the Court cannot lose sight of the following evidence :

(a) All other vehicles moved away during the observation of the officer, it is a reasonable inference that notice of the presence of the officer by the other drivers was the cause;

(b) The driver was reading newspaper when the officer approached him;

(c) In the circumstances, it defines common sense to suggest that the driver would be able to promptly move the vehicle so as to avoid any actual obstruction.  Evidence indicates that, unless his attention was drawn to approaching vehicle by means of something amounting to a protest, he would not be able to notice the obstruction caused by his vehicle.  Whether such obstruction was more than de minimis, an issue to be discussed later, is of course a separate matter and needs to be considered taking into account the whole circumstances of each particular case.

(4) In paragraph 32, the Magistrate cited what Deputy High Court Judge Line (as he then was) said in HKSAR v John Edward Ball HCMA 175/2005[5] : “other road-users could not use that specific bit of road” and concluded what happened amounted to likely to cause obstruction in the road.

  Whether the conclusion of the Magistrate is accurate is to be decided by examination of the whole of the evidence, which I will do.  I respectfully agree that what Line J said in Ball is a matter to be taken into account.

(5) In paragraph 33, the Magistrate said drivers intending to move along the left lane are other road users contemplated in the legislation.  He found that parking of the Appellant’s vehicle in that manner prevented other road users to use the left lane.  This was one of the matters based on which the Magistrate found that it was likely to cause obstruction.

Mr Hui submitted that the Magistrate failed to take into account that other drivers could still have used the other lane and be able to turn left into Des Voeux Road Central.

  In my judgment, albeit drivers could use either lane to turn left, what the Magistrate said is again a matter he was entitled to take into account.  Other users of the road would be deprived of a choice.

20. In my judgment, the matters boil down to these - had the prosecution proved beyond reasonable doubt: the presence of the vehicle, in the circumstances of the case, was likely to cause an obstruction?

21. As to what amounts to obstruction, I respectfully agreed to what Glidewell LJ and Otton J said in Hirst and Agu v Chief Constable of West Yorkshire (QBD) (1987) 85 Cr. App. R. 143 :

“… … Unless the obstruction is so small that one can consider it comes within the rubic de minimis, any stopping on the highway, whether it be on the carriageway or on the footway, is prima facie an obstruction. To quote Lord Parker CJ in Nagy v Weston [1965] 1 All E.R. 75, ‘Any occupation of part of a road thus interfering with people having the use of the whole of the road is an obstruction.’”

22. Mr Hui submitted, citing Van Hing Transportation Company v Attorney General CACV9/1980 and R v William Alan Terence Crawley [1994] 1 HKCLR 156, that contravention of section 4 of the Ordinance comes under civil proceedings and it was in such context that “the rubic de minimis” could apply.  This submission does not affect the accuracy of the abovesaid decision as to what amounts to obstruction in this context.

23. Mr Hui also quoted passages in the judgment of Van Hing, Crawley and Ball, and submitted that the conclusion of the Magistrate cannot stand in the light of these decisions. The prosecution case in Van Hing and Ball was described respectively by the Court as fine line and borderline.  Mr Hui submitted that the evidence in the present case is even weaker that those cases. 

24. In Van Hing, the contravention was caused by a lorry parked in King’s Road preparatory to loading up of goods. The parking was meant to be brief.  It was parked in the left lane.  Other vehicles approaching from the rear had to slow, stop and change out to the second lane.  As a result a police officer seeing this had to direct the traffic for about 5 minutes.  After that he issued a fixed penalty ticket.  When he was doing so, the traffic remained congested with vehicles having to stop behind the lorry.  Silke J described this a fairly “fine line” case.

25. In Ball, a fixed penalty ticket was issued because a police officer found the car parked on a road.  At the hearing before the Magistrate, the Appellant said he parked his car only for five minutes or so to cross the road to visit some filling stations seeking repair of some damage to his car.  The road was described as wide with room to get by for another vehicle.  The case was described by the Court as a “border line” case.

26. Mr Hui also cited HKSAR v Smart Oil & Chemical Ltd HCMA498/2005 where the driver was found unable or unwilling to move the vehicle and argued that the present case was no comparison as the driver was inside the vehicle and there was no evidence that he was unable or unwilling to move the vehicle. 

27. Mr Hui stressed that there was no evidence about the traffic flow in the 2^nd left lane.  The Magistrate did not overlook this matter.  Indeed he took a generous but fair stand.  He expressly said that he would regard there was no obstruction on the 2^nd left lane as the basis of his consideration.

28. Mr Hui stressed the undisputed evidence that the road has no “no waiting” sign nor was there any yellow line painting on the road.  Again the Magistrate did not ignore these matters.  In any case, the contravention was not in relation to unlawful parking.  The issue is whether it was likely to cause unnecessary obstruction.

29. In all the circumstances, it is my judgment that the Magistrate cannot be said to have erred in concluding that the Appellant’s vehicle was likely to cause unnecessary obstruction.  In consideration, I bear in mind that Keith J said in Crawley :

“The FPTCO (the Ordinance) seeks to promote the free flow of traffic by providing a regime for the parking of vehicles.”

His Lordship also remarked :

“It is an unreasonable use of the road if a vehicle’s stationary presence on the road (albeit along with other vehicles) prevents yet other vehicles from using that stretch of the road.”

To these views I entirely agree.  In the present case, unless the Appellant’s vehicle moved, its existence deprived other road users in using the left lane when desired.  Subject to the rubic de minimis, it was likely to cause obstruction.  If the driver was sufficiently attentive to the traffic condition and was alert enough and be ready to move promptly to avoid obstruction, there might not be a contravention of the provision of section 4. However, the driver was reading newspaper not paying due attention to the surroundings including approaching traffic.  It appears that he did not even realise that the police officer had come to his vehicle.  The car stopped at the white line.  If there was a vehicle approaching on the left lane, the driver might not appreciate that the parked car was not going to move, in particular if the traffic light was red at the time.  He would naturally stop behind it and be obstructed when the light turned green.  Drivers arriving afterwards might do the same thing.  Although as a matter of fact there were other vehicles parked behind the Appellant’s, the Appellant’s vehicle cannot be said as not having played a part in causing this happening.  Not only was that a likelihood to cause an obstruction, there was also a likelihood of traffic confusion when other drivers came to realize that they were obstructed.  Notwithstanding that there was no direct evidence of the traffic volume on that road at the material time, it cannot be ignored that the incident took place during the business hours in the morning of a weekday, at a centrally located road in Central.  Even accepting that it is not the busiest street, use of the road by other drivers can reasonably be expected.  Moreover, the attitude displayed by the driver when he was approached by the police officer did not demonstrate readiness and preparedness to move.  In my judgment, the parking was likely to cause obstruction and it was not de minimis.

30. As mentioned earlier, Mr Hui expressly said that whether the obstruction is unnecessary is not in issue.  Even if it is, it is obvious to me that the obstruction was unnecessary.  At the trial, the Appellant did not call any witness nor was any evidence adduced about the need of parking the vehicle there and then.  The Statement of Findings does not reveal even any cross examination to this effect.  I do not mean to say that such evidence must have come from the defence.  There are bound to be cases where such evidence is disclosed in the prosecution case.  There is, however, nothing in the present case to show that the obstruction was necessary.

31. The conviction is neither unsafe nor unsatisfactory.  I dismiss the appeal against conviction.

Appeal against Sentence

32. The Magistrate imposed a fine of $320 and an additional penalty of $320.  The complaint is against the additional penalty imposed.  Mr Hui submitted that it was manifestly excessive or wrong in principle to impose such additional penalty.

33. The provision in relation to the additional penalty is section 20(3) of the Ordinance :

“Where a person served with a summons in proceedings under section 16(1) does not appear before the Magistrate or, having appeared, offers no defence or a defence which is frivolous or vexatious, the Magistrate shall order that person to pay the fixed penalty together with an additional penalty equal to the amount of the fixed penalty.”

34. The Magistrate said something along the line that he considered the Appellant had not raised any defence at all[6].  If he meant what he said, I cannot agree with him.

35. Mr Cliff Ip, Public Prosecutor, sought to support the decision of the Magistrate by submitting that the Appellant had not relied on any statutory defence set out in section 12, and Schedules 1 and 2 of the Ordinance nor did the Appellant’s submission satisfy any defence enunciated in case law.

36. As the trial, the Appellant did not rely on any defence as such.  What they did was seeking to argue that the prosecution failed to prove that it was likely to cause unnecessary obstruction.  As the prosecution bore the burden of proof, in the circumstances I am not of the view that the Appellant offered no defence in the context of this provision.

37. I have considered whether what the Magistrate actually meant was that he found the defence was frivolous or vexatious.  Having considered the whole of what he said in this aspect, in particular his remarks that the Appellant did not adduce any evidence and did not call the driver, I am inclined to think that the Magistrate meant what he had said and therefore conclude the Magistrate had not made a finding that the defence was frivolous or vexatious.

38. If the Magistrate had found that the defence was frivolous or vexatious, I do not think I will interfere with this finding. Once it is found that the defence was frivolous or vexatious, ordering of an additional penalty is mandatory.  However, such finding is a pre-requisite to the order.  Not knowing what the Magistrate’s finding would have been, I do not see there is sufficient basis for me to uphold the order of additional penalty.

39. I therefore allow the appeal against sentence to the extent that the order of additional penalty is quashed.