HKSAR v. TSANG WAI KEUNG

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

APPELLATE JURISDICTION

MAGISTRACY CRIMINAL APPEAL NO. 220 OF 1998

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J U D G M E N T

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1. The Appellant in this matter was convicted after trial on 16th February 1998 of contravening sections 7(1), 13 and 14(1) of the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237; namely parking his vehicle on an unauthorized section of public road. He now appeals against that conviction.

2. The sole prosecution witness was a traffic warden who said that she was on patrol on Des Voeux Road West when she noticed the Appellant's private motor car parked outside certain commercial premises on that road. Between the Appellant's private car and a kerb side was parked a goods vehicle. Put simply, the Appellant's car was double-parked. The warden testified that she went up to the car and found it empty. She saw nothing to indicate that the car had suffered any mechanical malfunction. She said that she waited for a period of time and then began to make out a penalty ticket. It was the warden's testimony that some 4 or 5 minutes passed from the time she first saw the vehicle to the time when the Appellant approached the vehicle. During this period of time she said that a fellow traffic warden regulated traffic.

3. The Appellant gave evidence on his own behalf. He said that he had earlier telephoned the proprietor of a shop on Des Voeux Road West to order certain foodstuffs. Apparently he had a regular order. Normally, when his vehicle stopped outside the shop, the proprietor brought out the foodstuffs which were placed into the Appellant's motor vehicle. On this occasion, however, he was unable to see the shopkeeper to gesture to him. He therefore ran into the shop to ask the shopkeeper to bring out the orders and returned immediately to his car followed shortly thereafter by the shopkeeper who was carrying the goods to be loaded into the vehicle. The Appellant produced a receipt for his purchases. According to the Appellant he was gone only some 30 seconds or so.

4. The Magistrate in his Statement of Findings found the traffic warden to be a truthful and accurate witness. He accepted her evidence that the Appellant's private motor vehicle had been stationary for some 4 or 5 minutes. He further accepted the testimony of the warden that there had been no signs of loading of the vehicle.

5. The Appellant, who appeared without the benefit of counsel, argued that the Magistrate misdirected himself by not considering the true meaning and intent of the word "parking" as it is defined in section 2 of the Road Traffic (Parking) Regulations, Cap. 374. That section, as it relates to parking, reads as follows: -

" 'Parking' subject to sub-regulation (2), means the standing of a vehicle, whether occupied or not, except when standing temporarily for the purpose of and while actually engaged in loading or unloading or picking up or setting down passengers."

6. The Appellant has argued that his vehicle was standing temporarily for the purposes of loading and accordingly, at that moment in time, it was not 'parked' within the meaning of the Road Traffic (Parking) Regulations.

7. Standing temporarily, in my judgment, has to mean standing for a limited period of time. What is a temporary differs according to the circumstances. In respect of road traffic, it must be judged according to the condition of the road and the flow of traffic at the time.

8. The Magistrate accepted the evidence of the traffic warden that the vehicle was parked at that spot for some 4 to 5 minutes. It is clear from the meaning and intent of his Statement of Findings that the Magistrate did not consider that period of time to be sufficiently limited or transient to fall into the definition that I have quoted. The Magistrate, having found that the Appellant's vehicle was not standing temporarily as that phrase is defined in the Regulations, it was unnecessary for him to proceed to consider the purpose of the standing and whether there was actually loading or unloading at the time.

9. The Appellant argued that the Magistrate was wrong to accept the evidence of the warden that the vehicle had been standing for such a long time. I have considered the transcript of the evidence in this regard. I regret, however, that I can find nothing in the evidence placed before the Magistrate and tested by cross-examination to suggest that the Magistrate's findings of fact were in any way unsafe or unsatisfactory.

10. I appreciate that the Appellant no doubt feels aggrieved that the Magistrate chose to believe the traffic warden and not himself. In this regard, I would refer the Appellant to a judgment of a fellow judge, Keith J. in Magistracy Appeal R. v. Hui Kee Fung (MCA 196 of 1994) in which the judge said as follows:-

"Appeals from decisions of Magistrates on questions of fact should not be regarded by litigants as simply another opportunity to re-try the facts. An appeal to the High Court is not a rehearing of the case. The judge does not even see the witnesses. It will be rare indeed for a judge to say that the findings of fact made by the Magistrate were so contrary to the weight of evidence that doubts as to the correctness of the Magistrate's findings exist. There may occasionally be cases in which a Defendant believes that he has been the victim of a miscarriage of justice, because the Magistrate has chosen to believe the witnesses who gave evidence against him and disbelieve him. But if there are no sustainable grounds of appeal, a belief in one's innocence is not sufficient to justify the invocation of an appellate process which treats the findings of fact made by a Court of First Instance as so sacrosanct as our system of criminal justice does."

11. In the circumstances the appeal must be dismissed.