LEE KIN PONG v. HKSAR

FAMC No. 11 of 1997

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 11 OF 1997 (CRIMINAL)

(ON APPLICATION FOR LEAVE TO APPEAL

FROM HCMA No. 703 OF 1997)

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D E T E R M I N A T I O N

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Mr Justice Bokhary, P.J.:

1. This is the determination of the Appeal Committee in this application for a certificate under s.32(3) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 and for leave to appeal to the Court of Final Appeal against the dismissal by Pang J in the High Court on 15 November 1997 of the applicant's appeal against his conviction in the Magistrate's Court on 7 July 1997 of a traffic offence. The offence was of being the registered owner of a motor vehicle which was upon a road without having a valid licence displayed on it. That is an offence under regulations 25(1)(c)and 60(3) of the Road Traffic (Regulation and Licensing of Vehicles) Regulations.

2. There has never been any dispute as to the facts. The applicant is the registered owner of a motor cycle registration mark EV 2872. On 18 January 1997 a police constable came across that motor cycle parked on the road under a flyover at the junction of Hing Fong Road and Kwai On Road in the New Territories. As the constable noticed, the licence displayed on the motor cycle had expired on 6 June 1996.

3. Regulation 25(1)(c) provides, in so far as is material, that "no motor vehicle shall be upon or used on any road unless a valid licence in respect of the vehicle is displayed ... in the case of a motor cycle, in a conspicuous place on the left-hand side of the vehicle in such manner that it is clearly visible from that side of the vehicle." And regulation 60(3), in so far as is material, makes a person guilty of an offence if any vehicle of which he is the registered owner is "upon or used on any road" in contravention of regulation 25.

4. The point upon which the applicant seeks leave to appeal is that those regulations should be interpreted to mean that the registered owner cannot be guilty of an offence thereunder unless his motor vehicle without a valid licence is used on a road.

5. But regulations 25(1)(c) and 60(3) do not speak merely of motor vehicles which are used on a road. They speak instead of motor vehicles which are "upon or used on" a road.

6. It is obvious that the applicant feels very strongly about this matter. But unfortunately for him the presence in regulations 25(1)(c) and 60(3) of the word "upon" means that his point, however wide its implications would be if it were sound, has no real chance of success. In other words, it is not even reasonably arguable.

7. A licencing system such as this one is consistent with the right to own property.

8. Where in a criminal case leave to appeal to the Court of Final Appeal is sought on the basis that a point of law of great and

general importance is involved in the decision, the point must be at least reasonably arguable before leave can properly be granted.

9. Since the applicant's point is not even reasonably arguable, leave to appeal must be refused, and there is therefore no point in our granting a s.32(3) certificate first. Accordingly, this application is wholly dismissed.