HKSAR v. LEE WAI CHUNG

HCMA90/2004

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO.90 OF 2004

(ON APPEAL FROM STV166 OF 2003)

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REASONS FOR JUDGMENT

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1. This is an appeal against conviction only.

2. The appellant who was unrepresented both at trial and before me was convicted of an offence of failing to comply with a "no right turn" sign without reasonable excuse whilst being the driver of a private motor vehicle, contrary to regulations 59(1)(a) & 61(1) of the Road Traffic (Traffic Control) Regulations made pursuant to the Road Traffic Ordinance, Cap. 374.

3. The facts of the case as found by the magistrate were that the appellant whilst driving his vehicle from Wo Tong Tsui Street in Kwai Chung had made a right hand turn into Kin Hong Street contrary to a traffic sign at that intersection which prohibited such a right turn being made. Those facts were not in issue before the magistrate.

4. The appellant contended however that he made that right turn because he was unable to see either of the two signs which prohibited right turns at the intersection as they were both surrounded and obstructed by construction scaffolding and, accordingly, that he had a "reasonable excuse" as provided for by the Regulations.

5. One of the two "no right turn" signs ("the first sign") was located on Wo Tong Tsui Street on the approach to the intersection and about 30 metres before it, according to a plan produced before me today. The other sign ("the second sign") was located at the intersection again on the side of the road on the left-hand pavement as the driver arrived at the intersection. Wo Tong Tsui Street comprised a single lane each way at its intersection with Kin Hong Street.

6. It was apparently accepted during the hearing that the first sign on the approach to the intersection was partly at least obscured by scaffolding being used on a construction site next to it. For that reason apparently that sign was not relied upon for the purposes of the prosecution of the appellant.

7. The second sign was the one relied upon during the course of trial. It was located at the side of the intersection and bolted onto the construction scaffolding which had continued on into the intersection. It, too, was partly obscured by that same line of scaffolding and in fact was mounted quite high up on the scaffolding.

8. The magistrate's findings on this issue in his Statement of Findings are as follows :

"The issue was whether the defendant had a reasonable excuse. He said that he did as he could not see the sign. I found as a fact, that whereas from a certain angle as one approached the sign, it was partially obscured by a hoarding surrounding a construction site, there could be no doubt that it was easily visible as a motorist got closer to it. Further, there could be no excuse for the defendant failing to see the sign when he reached the junction itself. Although the sign was set somewhat higher than a similar sign further back from the junction it was not, I found, so high that a motorist could be forgiven for failing to see it. I found that the prosecution had disproved the defendant's claim of reasonable excuse."

9. The magistrate had concluded as a matter of fact that once the appellant's vehicle arrived at the junction the sign would have been visible to the appellant.

10. That conclusion by the magistrate was based upon photographic evidence produced before him. Some photographs were produced by the appellant at trial which appeared to show the relevant sign as being quite heavily obscured by the scaffolding as one approached the intersection. Other photographs, taken one month after the appellant's photographs, were produced at trial by the police and in them the sign was much more visible.

11. In this regard, the magistrate said at the time of the appellant's conviction :

"...I have here photographs taken by the police officer showing the signs in question. I also have photographs taken by yourself which show both the signs.

Concentrating on the second sign, your photograph shows it partially obscured by the hoarding at the side of the road surrounding the construction site. But it is apparent, from the photograph taken by the police officer, taken from the street itself where your car would have been as it approached the sign, that the sign was readily visible."

12. It must be said that, on the basis of the evidence before him, the magistrate's conclusions were perfectly proper and soundly reasoned.

13. Unknown to all parties at the time of trial however were the following facts.

14. Before and after the date of the present charged offence, a series of complaint letters had been sent by members of the public to the Transport Department complaining about the lack of visibility of the signs.

15. In response to those letters and before the police photographs had been taken for the purpose of the appellant's trial, steps had apparently been undertaken by the Transport Department to have the sign, the subject matter of this appeal, extended out over the roadway on an arm attached to the scaffolding upon which it had originally been directly attached. This had the effect, of course, of making that sign significantly more visible.

16. This was never brought to the attention of the magistrate at trial and given the quality of the photographs before him, it is not surprising he failed to notice that in one of the prosecutions' photographs there was an extension arm just able to be seen holding the sign out over the roadway.

17. The appellant has provided me with other photographs today with the consent of Ms Shine for the respondent which allow the original and more obscured positioning of the sign at the time of the charged offence when it was without the extension arm to be compared with its higher visibility once it was subsequently attached to the extension.

18. I cannot say that the magistrate, had he been aware of this matter, would inevitably have come to the same conclusion.

19. Accordingly, I order the conviction quashed and the sentence set aside. I do not order any re-trial.