SECRETARY FOR JUSTICE v. RICHARD ETHAN LATKER

HCMA 521/2008

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

MAGISTRACY APPEAL NO. 521 OF 2008

(ON APPEAL FROM KCS NO. 33295 OF 2007)

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J U D G M E N T

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Hon Ma CJHC :

Introduction

1.  This appeal by way of Case Stated raises principally the following point of some importance : does section 63 of the Road Traffic Ordinance, Cap. 374 (“the RTO”), which requires the registered owner of a motor vehicle in certain situations to disclose the identity of the driver of that vehicle, breach constitutional protections guaranteed under the Bill of Rights (namely, the right to silence and the privilege against self-incrimination)?  I shall refer to these protections simply as the right to silence.  This right is a facet of the right to a fair trial guaranteed under the Bill of Rights.  There are other issues which I shall presently identify but the main issue is the one just articulated.  The reference to the Bill of Rights is of course to the Hong Kong Bill of Rights contained in Part II of the Hong Kong Bill of Rights Ordinance, Cap. 383.

2.  The proceedings arise from a prosecution under section 63 of the RTO.  The relevant facts are not in dispute.  At about 6:05 pm on 30 July 2007, a vehicle (JY9387) was captured by a digital red light camera (installed by the police) showing that it had gone through a set of red lights while northwest-bound on Sau Mau Ping Road at the junction with Sau Ming Road.  The registered owner of the vehicle is the Respondent in these proceedings, Mr R E Latker.

3.  By a Notice Requiring Identity of Driver dated 2 August 2007 (issued under section 63(1) of the RTO), the Respondent was requested by the police to identify within 21 days, the driver of the vehicle (JY9387) at the relevant time to which I have referred above.  This was stated to be on the basis that the driver of the vehicle was suspected of having committed a traffic offence, namely, failing to comply with traffic signals.  At the back of this document was a warning that the maximum penalty for failure to comply was a fine of $10,000 and 6 months’ imprisonment.  No reply to the Notice having been received, a final reminder was sent to the Respondent on 3 September 2007.  A month later, the police telephoned the Respondent indicating that he would be prosecuted if he did not reply.  The Respondent said that he was willing to co-operate “provided that he was not compelled to forfeit rights protected by the Basic Law” (the quoted words are from the Agreed Facts).

4.  An information was laid on 20 November 2007 charging the Respondent with his failure to respond to the demand from the police for details of the driver of the vehicle at the relevant time.

5.  At the hearing of this traffic summons on 21 February 2008 before Mr D I Thomas, the Respondent pleaded not guilty.  Although the facts as I have outlined above were not in dispute, the Respondent gave evidence, essentially telling the Magistrate that he regarded the matter as one of principle and that it was a matter of “civil cowardice” if he agreed to provide the particulars sought regarding the identity of the driver.

6.  The hearing before the Magistrate largely comprised submissions made by the prosecution and the Respondent (who appeared in person) on the main constitutional issue with which we are concerned : whether section 63 of the RTO was consistent with the Bill of Rights.  The Magistrate, in a Verdict delivered on 8 May 2008 held that section 63 contravened the Bill of Rights, therefore ceased to have effect and accordingly found the Respondent not guilty.  The summons before him was dismissed.  The prosecution then applied to the Magistrate for a review and having heard submissions, affirmed his previous ruling and dismissed the application for review.

7.  The Secretary for Justice (the Appellant) then applied to the Magistrate to state a case on a point of law, pursuant to section 105 of the Magistrates Ordinance, Cap. 227, to enable an appeal to be brought.  The Case Stated is dated 11 June 2008, with an Addendum made on 16 June 2008.

8.  On 27 June 2008, in view of the importance of the matters raised in the Case Stated, Lam J directed that the appeal be heard by the Court of Appeal.  At the hearing on 26 September 2008, the Appellant was represented by Mr Kevin Zervos, SC and Mr David Leung.  The Respondent continued to be unrepresented.  Mr Daniel Wan was the amicus curiae appointed by the court, although his appointment was resisted by the Respondent.  In fact, the Respondent applied to have the appointment rescinded but this was refused by the court on the day.  I shall have more to say about this later in the judgment.

The legislative scheme

9.  Sections 63 and 64 of the RTO, under that part headed “Enforcement”, state : -

“63.  Obligation to give certain information

(1)  Where the driver of a vehicle is suspected of having committed an offence under this Ordinance or, where owing to the presence of a vehicle on a road an accident occurs, any person, including both the registered owner and the person suspected of being the driver of the vehicle, shall on demand made within 6 months after the date of the alleged offence or accident give to a police officer in the manner prescribed in this section the name, address and driving licence number -

(a)  in the case of an alleged offence, of the driver of the vehicle at the time of the alleged offence;

(b)  in the case of an accident, of the driver of the vehicle at the time of the accident or of the last driver of the vehicle prior to the accident,

and his relationship, if any, to any such driver.

(2)  A demand under subsection (1) may be made orally or by means of a notice served personally or by post on the person on whom it is made.

(3)  Where a demand under subsection (1) is made orally to any person he shall -

(a)  if he was the driver of the vehicle at the time of the alleged offence or accident, or was the last driver of the vehicle prior to the accident-

(i)  give immediately his name and address; and

(ii)  give the number of his driving licence to a specified police officer within 21 days after the date of the demand; and

(b)  if he was not the driver of the vehicle at the time of alleged offence or accident, or was not the last driver of the vehicle prior to the accident, give the information required under subsection (1) to a specified police officer either orally or in writing within 21 days after the date of the demand.

(4)  A notice served under subsection (2) shall require the person to whom it is addressed -

(a)  to furnish, within 21 days after the date of the notice, to a police officer specified therein, a written statement, in such form as may be specified in the notice, giving the name, address and driving licence number -

(i)  in the case of an alleged offence, of the driver of the vehicle at the time of the alleged offence;

(ii)  in the case of an accident, of the driver of the vehicle at the time of the accident or of the last driver of the vehicle prior to the accident,

and his relationship, if any, to any such driver; and

(b)  to sign the said statement.

(5)  In proceedings for an offence under subsection (6)(a), it shall be a defence for the defendant to show that he did not know, and could not with reasonable diligence have ascertained, the name or address or driving licence number of the driver of the vehicle at the time of the alleged offence or accident or of the last driver of the vehicle prior to the accident, as the case may be.

(6)  Subject to subsection (5), any person who -

(a)  contravenes subsection (1); or

(b)  knowingly makes a false statement in supplying particulars required under subsection (1),

commits an offence and is liable to a fine of $10,000 and to imprisonment for 6 months.

(7)  Where a person is convicted of an offence under subsection (6) and the offence of which he is convicted is an offence in connection with the giving to a police officer of the name, address and driving licence number of the driver of a vehicle at the time of an alleged offence, the court before whom that person is convicted shall have regard to the facts of the alleged offence in considering -

(a)  the amount of any fine, or period of imprisonment, to impose; and

(b)  the period, if any, for which to order such person to be disqualified,

for the offence under subsection (6).

(8)  In this section ‘alleged offence’ (被指控罪行) means the suspected offence referred to in subsection (1).

64.  Proof in summary proceedings of identity of driver

If, in any summary proceedings for an offence under this Ordinance, there is produced to the court a statement which -

(a)  purports to have been signed by the defendant;

(b)  was furnished in accordance with a notice served on him under section 63(2); and

(c)  states that the defendant was the driver of the vehicle at the time of the offence,

the court shall admit the statement as prima facie evidence that the defendant was the driver of the vehicle at the time of the offence.”

10.  Insofar as relevant to the issues in the present proceedings, the following features of the statutory scheme are to be noted : -

(1)  The request to provide the necessary information arises only where the driver of a vehicle is suspected of having committed an offence under the RTO or where, as a result of the presence of a vehicle, an accident occurs on a road : section 63(1).  In the present case, the request was made on the basis of an offence suspected of having been committed.

(2)  The obligation to provide the necessary information is on “any person” and this specifically includes the registered owner and the suspected driver at the relevant time : section 63(1).

(3)  The information required to be provided to a police officer who demands it, whether this demand is made orally or in writing, is limited to the name, address and driving licence number of : -

(a)   in the case of an alleged offence under the RTO, the driver of the vehicle at the time of the alleged offence; or

(b)  where an accident occurs, the driver of the vehicle at the time of the accident or of the last driver of the vehicle prior to the accident.

The registered owner is also obliged to provide details of his or her relationship, if any, with such driver.  See sections 63(1), (2), (3) and (4).  Beyond these stated matters, no further information is required to be given.  In other words, the type of demand for information under this section is a limited one; a wide ranging inquiry is not permitted.

(4)  The information obtained from an inquiry under section 63 can be used for both criminal and civil proceedings.  As far as criminal proceedings are concerned, the reference in section 63(1) to an “alleged offence” being committed as being one of the pre-conditions for a demand being made, is a sufficiently clear indication that it was expressly envisaged that any information that was obtained can be used in such proceedings.  Further, section 64 actually states that any information provided by a defendant in summary proceedings under the RTO to the effect that he was the driver of a vehicle at the relevant time, will constitute prima facie evidence that the defendant was the driver at the material time.  As for civil proceedings, while nothing in the Ordinance refers to the use that can be made in civil proceedings of any information obtained under section 63, it is clear from the reference in that provision to an “accident” having taken place (the alternative pre-condition before a demand for information can be made) that this is inclusive of civil proceedings.  Moreover, the request to provide information (where the relevant driver is not the registered owner) to explain the relationship between the registered owner and the driver, is perhaps more relevant in the civil context than in the criminal.

(5)  The failure to provide the necessary information under section 63 (where, as in the present case, no information is provided at all or where false information is provided) constitutes a criminal offence : section 63(6).  However, it is a defence to show that the registered owner did not know or could not with reasonable diligence have ascertained the relevant information that is demanded : section 63(5).

(6)  The maximum penalty on conviction is a fine of $10,000 and imprisonment for 6 months : section 63(6).  Disqualification is also a possible penalty : section 69(1)(b).  In considering the appropriateness and level of any penalty, the court is required to have regard to the facts of the underlying alleged offence : section 63(7).  In other words, where an offence under the Ordinance is suspected to have taken place and the requisite information is not provided by the registered owner, the court, when sentencing, must have regard to the seriousness of the underlying suspected offence.  Thus, the failure on the part of a registered owner to provide information when there is suspected a death caused by dangerous driving would attract a different penalty than, say, where there has been a minor infringement of traffic laws.

11.  As will be developed later in this judgment, one of the important features of the statutory scheme that must be considered when dealing with the constitutional questions posed in this appeal, is the penalty upon conviction under section 63(6).  Not only is there the possibility of a fine, there is also the possibility of imprisonment (a maximum of 6 months).  Here, it is convenient to deal briefly with the legislative history : -

(1)  The origin of section 63 is section 9 of Vehicles and Road Traffic Ordinance 1947 (which was modelled on section 113 of the English Road Traffic Act 1930).  The provision of information was restricted to the situation where the driver of the vehicle was suspected of having committed an offence.  The penalty for failure to comply was a fine not exceeding $500 and imprisonment for a term not exceeding 6 months (section 15).  It is to be noted that this penalty was one that applied across the board for all offences under the Ordinance for which no individual penalty was stipulated.

(2)  Under the Road Traffic Ordinance 1957, the relevant provision relating to the provision of information became section 26.  Under section 26(2), however, the only penalty for contravention was a fine of $500; the imprisonment provision no longer applied.  It is not clear just what was the reason for this latter omission.

(3)  Under the Road Traffic (Amendment) (No.2) Ordinance 1973, the relevant provision became section 9.  Under section 29(5), the penalty was stipulated to be a fine of $2,000 and imprisonment for 6 months.

(4)  The debates in the Legislative Council on the penalty aspect shed some light on the reason for the increased penalty (to include once again the possibility of imprisonment). The Financial Secretary said at the second reading of the Bill on 3 January 1973 (see Hong Kong Hansard : Reports of the Legislative Council Sitting on 3 January 1973 at page 311) : -

“Finally, it would appear that many traffic offenders have been encouraged by the low maximum fine of $500 for contravening the provisions of section 29 to ignore them in cases where compliance would render the driver of the vehicle liable to a much higher penalty for a serious traffic offence.”

This was a direct reference to those serious offences under the Road Traffic Ordinance where heavier fines or terms of imprisonment existed.  Clearly, the provision requesting information was seen as not having been sufficiently effective.

(5)  This theme was developed when the Ordinance was amended in 1980 to insert the equivalent of the present section 63(7), namely, the duty on the court to have regard to the facts of the alleged offence underlying the request for information.  There was also added the possibility of disqualification.

(6)  In the Legislative Council debate on this issue, the following was stated by the Attorney General on 17 April 1980 (see Hong Kong Hansard : Reports of the Legislative Council Sittings on 9 July 1980 at page 998-1000) : -

“Question proposed.

THE ATTORNEY GENERAL : - Sir, when the Secretary for the Environment moved the second reading of this Bill on 17 April 1980, he explained that its objective was to strengthen the law to deal with persons who avoid prosecution for serious traffic offences by refusing to disclose who was the driver at the time the offence was committed.

The problem is that the penalty for failing to disclose the name of a driver involved is frequently much less than is the penalty imposed for the offence itself.  Furthermore, the court has no means at present of judging the gravity of the conduct which probably motivated the driver or owner to refuse to give his name.

.....

But if people are to be discouraged from refusing to give the name of the driver when they know it perfectly well because they consider the penalty for the driving offence is likely to be much higher than for the failure to disclose the name, then it is essential in my view that the Bill should retain the provision (contained in the proposed new subsection 5(A)(b) requiring the courts to have regard to the underlying facts of the traffic offence when passing sentence for the offence under section 29.”

(7)  The Ordinance was finally amended in 1982 to legislate for the present levels of penalty.

The decision of the Magistrate

12.  As stated earlier, the Magistrate considered that section 63 breached the Bill of Rights and was therefore unconstitutional.  The Respondent was accordingly acquitted and this was maintained by the Magistrate after a review.

13.  The reasons contained in the Verdict come to some 53 pages.  In it, the Magistrate went through extensive case authority and analyzed them.  It will be necessary in this judgment to deal with some of these authorities.  The Magistrate’s analysis can be summarized in the following way : -

(1)  The Magistrate was of the view, first, that section 63 affected the right to silence referred to earlier (this comprising the right to silence and the privilege against self-incrimination).  The Magistrate regarded Article 11 of the Bill of Rights as having been breached.

(2)  The Magistrate seemed, however, to assume that these rights were absolute in that once it was shown that there was a violation of these rights, then the relevant provision had to be struck out.  He criticized the approach of the Judicial Committee of the Privy Council in Brown v Stott (Procurator Fiscal, Dunfermline) and another [2003] 1 AC 681 in questioning whether the right to silence was an absolute one not capable of any derogation whatsoever.  Essentially, the Magistrate was of the view that the power in section 63 to compel the provision of information was too “draconian” and that the right to silence, being absolute, was breached by this section.

(3)  The Magistrate in any event applied what is known as the proportionality test.  He was of the view that this test was not satisfied either.

(4)  His reasoning proceeded along the following lines : -

(a)  No evidence was put before the court to indicate the scale of any problem (meaning the aspect of road safety and the danger caused by motor vehicles) so as to justify what the Magistrate clearly saw as a very wide power in the hands of the police.

(b)  While the legislation of other jurisdictions compelled information to be provided only in respect of the more serious traffic offences, by contrast, section 63 applied to all traffic offences, both major and minor.  This, therefore, according to the Magistrate, distinguished the case of Brown v Stott from the present.

(c)  Section 63 was objectionable also in that it compelled the provision of more information than merely the identity of the relevant driver.  This was a reference to the requirement to provide information going to the relationship between the driver of the vehicle and the registered owner.

(d)  Next, the degree of compulsion was found to be excessive.  The penalty of imprisonment for 6 months was seen to be too draconian.  The Magistrate said, “No other jurisdiction, at least in the case cited to me, have such a draconian penalty”.

(e)  The Magistrate thought it also objectionable that under section 63(1), the period within which a demand for information could be made was 6 months from the date of the alleged offence.  This was regarded as excessive.

(f)  Altogether, the right to a fair trial was accordingly violated.

14.  It will be necessary presently to analyze the effect of section 63 from a constitutional angle.  For the time being, I would just make this further observation.  The Magistrate was also of the view he was entitled not to follow the case of Attorney General v Tsang Wai Keung (1996) 7 HKPLR 163, a decision of Patrick Chan J (now Chan PJ).  That case is virtually on all fours with the present.  A question therefore arises as to whether the Magistrate should have been bound by that decision.  This is one of the questions raised in the Case Stated.

The questions raised in the Case Stated

15.  The seven questions raised in the Case Stated can, for convenience, be abbreviated to the following (the actual questions are contained in the Addendum annexed to this judgment) : -

(1)  Did the Magistrate have the jurisdiction to deal with the constitutional issue in the first place?

(2)  Was the Magistrate correct, after arriving at his views on the constitutionality of section 63, simply to dismiss the summons?

(3)  If the Magistrate was wrong to dismiss the summons, what ought he have done instead?

(4)  On the constitutional issue, was the Magistrate correct in regarding himself not bound by Tsang Wai Keung?

(5)  Still on the constitutional issue, did section 63 affect the right to a fair trial?

(6)  On the assumption that the right to a fair trial was affected, was the Magistrate correct to hold that section 63 therefore ceased to have effect?

(7)  If the Magistrate was wrong in holding that section 63 ceased to have effect, was he nevertheless correct in further holding that in any event, it did not provide a proportionate response to a social problem?

The issues in this appeal

16.  Issues 15(1) to (3) can be said to involve procedural issues.  Issues 15(4) to (7) go to the main issue in this appeal : the constitutionality of section 63 of the RTO.

17.  I propose to deal first with the constitutionality issue.  This issue can be broken down to the following sub-issues : -

(1)  The court’s approach in determining the constitutionality of statutory provisions.

(2)  Does section 63 affect the right to silence?

(3)  If constitutional rights are engaged, does section 63 involve a derogation of them and if so, can such derogation be justified by reference to the proportionality or justification tests?

18.  On the procedural issues, the following questions arise : -

(1)  Whatever the merits, did the Magistrate have jurisdiction even to deal with the constitutional issue?

(2)  Even if jurisdiction existed, what in any event ought the Magistrate have done once he arrived at the conclusion he did?

The Constitutionality issue

A. The court’s approach

19.  Where, as in the present case, a constitutional challenge is mounted in relation to a criminal offence, the approach of the courts, as shown by the cases, is in general as follows : -

(1)  First, the relevant offence (whether or not contained in statutory form) must be analyzed to see whether a constitutional right (to be found in the Basic Law or the Bill or Rights) is engaged in the first place.  If no such right is engaged, that is the end of the challenge.

(2)  Secondly, on the assumption a right or rights are engaged, the next inquiry then is to see whether the relevant right or rights have been infringed.  Again, if the answer is in the negative, this is also the end of any constitutional challenge.

(3)  Thirdly, if, however, there has been an infringement, the court then has to examine whether such infringement can be justified.  Where a criminal offence is involved, the burden is on the prosecution (the Secretary for Justice) to demonstrate that the infringement of constitutionally protected rights is justified (in a non-criminal context, usually in Judicial Review proceedings, the burden will be on the relevant decision maker which may or may not be the Government).

(4)  Where justification cannot be shown, the relevant offence will not survive a constitutional challenge.

20.  The following additional points on justification of an infringement of constitutional protected rights should be made : -

(1)  Some rights are absolute, not capable of any derogation.  Where, therefore, such rights are infringed, no justification for their derogation or qualification can ever be shown.  The right that no one shall be arbitrarily deprived of his life (Article 2(1) of the Bill of Rights) or that no one shall be held in slavery (Article 4(1) of the Bill of Rights) are perhaps ready examples of this.  I shall have more to say about this aspect below.

(2)  Where, however, the constitutional right is not absolute (meaning that derogation or qualification is possible in certain circumstances), the court’s approach is to see whether the circumstances of the case will allow a derogation or qualification.  Here, the court applies what is known as ‘proportionality test’.  If this test is satisfied, then the justification of an infringement of the constitutional right in question will be demonstrated.

(3)  The proportionality test has been formulated by the Court of Final Appeal as follows : -

(a)   The derogation from (or, as it is sometimes, referred to in the cases, the ‘restriction to’ or the ‘encroachment on’) the constitutional right must be shown, first, to be rationally connected to one or more legitimate purposes or aims.  There are two steps here : first, the identification of a legitimate purpose or aim (the societal justification) and secondly, the determination of a rational connection between the relevant restriction or qualification and that purpose or aim.

(b)  Next, it must also be shown that the derogation is no more than is necessary to accomplish the legitimate purposes or aims in question.

See, for example, the approach of the Court of Final Appeal in HKSAR v Lam Kwong Wai (2006) 9 HKCFAR 574, at 593 (paragraph 21).  This was a case brought to our attention by the Respondent but there are many others.

(4)  The burden, I would reiterate, is on the prosecution to satisfy this test and therefore provide the necessary justification.  Another facet of this burden in many cases (and this is relevant in the present :  see paragraph 13(4)(a) above) is the obligation to provide evidence to the court to advance any argument based on legitimate purposes : - see, for example, Kwok Hay Kwong v Medical Council of Hong Kong [2008] 3 HKLRD 524, at 537-8 (paragraph 24).  However, whether or not evidence is actually required in any given case must naturally depend on the circumstances.  The point, as articulated by Stock JA in Dr Kwong Kwok Hay v Medical Council of Hong Kong (No 2) [2007] 4 HKC 446, at 453-4 (paragraph 18)(the same case at an earlier stage when additional evidence was sought to be adduced prior to the appeal proper), is really this : -

18.  Where there is an infringement on the freedom of expression (or, for that matter, on any other fundamental freedom) but it is argued that the infringement is lawful, it is for the body imposing the restriction – in this case, the Council – to show a justifiable societal objective for the restriction, and that the restriction goes no further than is necessary to achieve that objective.  It is difficult, if not impossible, to envisage an infringement that could be justified without a clearly explained rationale, even though the depth of the explanation required will vary according to the nature of the restriction and its context.”

21.  Where a constitutional right is capable of derogation or qualification, the court must closely examine the circumstances to see whether such derogation or qualification can be justified in the application of the proportionality test.

B. Does section 63 affect the right to silence?

22.  I have already gone through an analysis of section 63 of the RTO to describe its true meaning and effect : - see paragraphs 9 to 11 above.

23.  Two articles of the Bill of Rights are said to be infringed, namely, Articles 10 and 11 : -

Article 10

Equality before courts and right

to fair and public hearing

All persons shall be equal before the courts and tribunals.  In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.  The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgment rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

Article 11

Rights of persons charged with or

convicted of criminal offence

(1)  Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

(2)  In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality -

(a) – (f) .....

(g)  not to be compelled to testify against himself or to confess guilt.

(3) – (6) .....”

24.  Article 11(2)(g), although a direct reference to the right to silence, is, however, not relevant to the present proceedings.  It has been held by the Court of Final Appeal that this Article is only engaged where a person has actually been charged with an offence (and therefore facing the determination of a criminal charge against him or her) :  see HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, at 171H-I (per Ribeiro PJ), a passage referred to with approval recently in  Koon Wing Yee v Insider Dealing Tribunal [2008] 3 HKLRD 372, at 399-400 (paragraph 80).  Further, in the context of a provision similar to section 63, Tsang Wai Keung is authority for this proposition as well (there, the court dealt with section 62A of the Cross Harbour Ordinance, Cap. 203, an almost identical provision to section 63.)  In the present case, the Respondent had not been charged with any offence at the time he was asked to provide the necessary information under section 63.

25.  On the other hand, Article 10 is relevant.  It is clear that the right to silence with which this appeal is concerned is an important facet of (or, as sometimes described, implied under) the right to a fair trial guaranteed under Article 10 of the Bill of Rights.  The decision of the Court of Final Appeal in Lee Ming Tee confirms this.  This is also the position in the United Kingdom (see Brown v Stott) and in the European Court of Human Rights (see O’Halloran v United Kingdom (2008) 46 EHRR 397).

26.  In the judgment of Stock JA below (a draft of which I have read), some arguments are referred to as to whether the right to silence (and therefore the right to a fair trial) is even engaged.  This was a point alluded to by Mr Wan.  Ultimately, the conclusion reached by Stock JA is that the right is engaged.  For my part, I agree, certainly in those cases where the notice is directed to the registered owner of a private vehicle.  In the present case, it will be recalled the initial notice that was sent to the Respondent (see paragraph 3 above) stated that an offence was suspected, namely failure to comply with traffic signals.  Once the identity of the driver of the vehicle was provided, it seems to me almost inevitable that a charge would have been laid.  Accordingly, like Stock JA, I would incline towards the conclusion that the right to silence (and therefore Article 10 of the Bill of Rights) was engaged.

27.  Fundamental rights being engaged, the crucial questions then become whether any derogation or qualification is possible in the first place and if so, whether section 63 provides such a permissible derogation or qualification in the present case.

C. If constitutional rights are engaged, does section 63 involve a derogation of them and if so, can such derogation be justified by reference to the proportionality test?

28.  Some Articles in the Bill of Rights contain provisions expressly allowing for derogation. Examples include the right to liberty (Article 5 – “No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law”), and the freedom of opinion and expression (Article 16 – these freedoms may be restricted where such are “provided by law and are necessary – (a) for the respect of the rights or reputations of others; or (b) for the protection of national security or of public order (ordre public), or of public health or morals.)  Other provisions, however, do not expressly allow any form of derogation.  Again, by way of example, Article 3 provides that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.  Article 4 states, without qualification, that no one shall be held in slavery.

29.  Where no express qualification is permitted, it does not necessarily follow that no derogation can be permitted under any circumstances.  As stated earlier, some rights may well be absolute, others perhaps not.  In the application of the proportionality test, derogation or qualification of non-absolute rights may be permitted.

30.  It should not be understood from the above that all rights in the Bill of Rights are capable of some form of derogation in the application of the proportionality test.  Each case must be looked at individually when the occasion arises.

31.  And so I turn to the right to a fair trial contained in Article 10 of the Bill of Rights (Article 11 being for the reasons already gone into, not engaged in the present case).  The right to silence is, as already stated, a facet of the right to a fair trial.

32.  From the previous study of section 63, it is clear at first blush that this facet of the right to a fair trial is infringed in the following way.  Where an offence under the RTO is suspected of having been committed, the person who was the relevant driver of the vehicle at the time of the offence, if he is also the registered owner, must (under compulsion of a fine or imprisonment) disclose his identity.  There is no infringement as far as drivers who are not the registered owners are concerned and we are not concerned in this appeal with the constitutionality of section 63 as far as that class is concerned.  Nor are we concerned with the situation (envisaged in section 63) of the requirement to provide details of the driver when only an accident occurs (without an offence having been committed or suspected to have been committed).

33.  Although the right to a fair trial contained in Article 10 does not provide expressly for exceptions and is absolute, it is nevertheless clear as a matter of principle that certain facets of this right (such as the right to silence) are not absolute and are capable of derogation or qualification.  There are so many aspects of what is meant by a fair trial that were no derogation permitted at all of these facets, the very concepts of a fair trial and the administration of justice can themselves be threatened.  Access to the court is one obvious example of a facet of the right to a fair trial.  Yet, certain categories of persons are denied free and unrestricted access to the courts, such as vexatious litigants (see here the decision of the Court of Final Appeal in Ng Yat Chi v Max Share Ltd (2005) 8 HKCFAR 1.

34.  In Lee Ming Tee, the Court of Final Appeal held that another facet, the privilege against self-incrimination, was not absolute.  The decision dealt with the statutory requirement to provide information to inspectors appointed under the Companies Ordinance, Cap. 32 by the Financial Secretary (section 145(3A) of the Ordinance).  In the judgment of Ribeiro PJ (with which the other judges concurred), reliance was placed on Brown v Stott and in particular on the following passage contained in the judgment of Lord Hope of Craighead at 719G-720B : -

“... But the European court and the European Commission have interpreted the article broadly by reading into it a variety of other rights to which the accused person is entitled in the criminal context.  Their purpose is to give effect, in a practical way, to the fundamental and absolute right to a fair trial.  They include the right to silence and the right against self-incrimination with which this case is concerned.  As these other rights are not set out in absolute terms in the article they are open, in principle, to modification or restriction so long as this is not incompatible with the absolute right to a fair trial.  As Starmer, European Human Rights Law, p 182, para 4.75, has observed, where express restrictions are provided for by the Convention there is no room for implied restrictions.  But where the European court has read implied rights into the Convention, it has also read in implied restrictions on those rights.

The test of compatibility with article 6(1) which is to be applied where it is contended that those rights which are not absolute should be restricted or modified will not be satisfied if the modification or limitation ‘does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved’ : Ashingdane v United Kingdom 7 EHRR 528, 547, para 57.”

35.  The judgment of Ribeiro PJ was approved in the judgment of Sir Anthony Mason in Koon Wing Yee at 400 (paragraph 83).  Reference was also made to O’Halloran.  Both Brown v Stott and O’Halloran involved the consideration of provisions similar to section 63.

36.  Given that the right to silence is not absolute and therefore capable of qualification, what are the relevant matters to be considered by the courts?  In Koon Wing Yee, Sir Anthony Mason said this at 400-1 (paragraph 83) : -

“83.  The protection given by art.10 of the BOR to the privilege against self-incrimination is not absolute.  A derogation from it can be justified, in accordance with the principles enunciated by this Court in cases culminating in Lam Yuk Fai v HKSAR.  In Lee Ming Tee, Ribeiro PJ pointed out that the direct use of compulsorily obtained self-incriminating materials could be justified if it was not a disproportionate response to a serious social problem and ‘did not undermine the accused’s right to a fair trial viewed in the round’.”

37.  Essentially, the critical question confronting the court when determining whether or not the right to silence can be derogated from or qualified is this : what is the fair balance to be struck between, on the one hand, the demands and interests of the general community and, on the other, the fundamental rights of the individual?  This brings sharply into focus those aspects which the judgment of Sir Anthony Mason in Koon Wing Yee (see paragraph 36 above) has emphasized when considering provisions such as section 63 : (a) what is the social problem that is the rationale for the provision in question; (b) does the provision provide a disproportionate response to that problem when seen against an individual’s rights to a fair trial (in the words of Ribeiro PJ) “in the round”?

38.  In the consideration of these two aspects, the following matters become relevant for the court to identify : -

(1)  The social objectives of the legislation in question.  In other words, the identification of the public interest at stake.

(2)  The extent of the interference with fundamental rights.

(3)  The safeguards in place for the protection of the individual.

(4)  The penalties involved in non-compliance.

39.  At the end of the day, the court must be satisfied that the derogation from the right to silence can be justified and that a fair balance has been struck, before upholding the constitutionality of legislation such as section 63.

40.  In my judgment, section 63 provides an acceptable balance struck between the public interest and the fundamental rights of the individual.  My reasoning follows those various aspects mentioned in paragraph 38 above.

41.  First, the public interest lies very much in the effective regulation of motor vehicles and their use.  The Preamble to the RTO states that the Ordinance is to provide for the regulation of road traffic and the use of motor vehicles.  In Hong Kong, as in many parts of the world, motor vehicles are prevalent and the potential dangers posed by them, self-evident.  The high incidence of traffic accidents and the injuries caused by motor vehicles (not to mention fatalities) are a perennial cause for concern.  The dangers are exacerbated by the vast numbers of people exposed to motor vehicles and, Hong Kong being a dense city, many roads are relatively narrow.  The margin for error when driving motor vehicles is accordingly small.

42.  One of the criticisms made by the Magistrate of the prosecution in the present case was the absence of evidence going towards the extent of the problems caused by motor vehicles.  While admittedly unsatisfactory statistics were produced, there could not be, with respect, any doubt of the extent of the problems caused by motor vehicles.  As I have said, this is self-evident in Hong Kong.

43.  In Brown v Stott, this aspect was articulated by Lord Bingham of Cornhillin the following way (at 704G-H) : -

“  The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies.  The need to address it in an effective way, for the benefit of the public, cannot be doubted.”

44.  These words are of equal application in Hong Kong.  As Lord Steyn said in the same case at 709H : “It is a notorious fact that vehicles are potential instruments of death and injury”.  Lord Hope of Craighead put it in this way (at 722C) : - “Public safety is at the heart of the matter”.  Lord Clyde at 728E said  : - “The importance of securing safety on the roads and of minimizing the risks of accidents and injuries caused by motor vehicles is too obvious to require elaboration”.

45.  A particular scenario which the cases have used as an example to address the social objectives of the legislation has been the ‘hit and run’ situation : - see Tsang Wai Keung at 168A, 170C-E; Brown v Stott at 728G-H.  Indeed, it is a good example, for within it are encapsulated the widespread dangers caused by motor vehicles, which, I emphasize, pose genuine and obvious risks in Hong Kong.

46.  I do not of course lose sight of the argument that if inroads can be cut into the right to silence in this way, then surely such inroads ought, logically, also to apply to other (perhaps even more serious) criminal offences?  And yet, such further inroads would generally be unacceptable.  One then asks rhetorically : why should there be an exception as far as motoring offences are concerned?  After all, an offence such as that contained in section 36 of the RTO (causing death by dangerous driving) is an extremely serious offence, attracting a maximum sentence of 10 years’ imprisonment.

47.  In my view, the answer lies perhaps in the sheer numbers of motor vehicles on the road and the exposure of most members of the population to them, therefore necessitating an effective regulatory system to govern their use.  Extremely serious social problems would be caused if there was an absence of such a system.

48.  Secondly, I deal with the extent of the intrusion into fundamental rights caused by section 63.  Here, the intrusion is a relatively limited one.  The inquiry essentially goes to a single aspect, namely, the identity of the relevant driver (also of course his address and licence number, but these really just go towards identity).  It is right to point out there is also the inquiry as to the relationship between the registered owner and the driver (a point emphasized by the Magistrate in the present case) but this inquiry, as I have earlier indicated, really goes towards civil liability rather than the criminal aspect with which we are principally concerned.  In any event, the additional inquiry here is not unduly intrusive either.  There is no question of a prolonged series of questioning or interrogation (an aspect that would be objectionable : see Saunders v United Kingdom (1996) 23 EHRR 379).

49.  The emphasis on the length of the questioning as a consideration was made in cases such as Brown v Stott (at 705B-D) and Koon Wing Yee (at 399 (paragraph 78)).

50.  Thirdly, on the aspect of safeguards, it is at once important to point out that where an offence under the RTO is involved, the identity of the driver is but one aspect of it (albeit an important aspect).  The prosecution will still have to prove all the constituent elements of any given offence.  Further, although the answers given by a person as to the identity of the relevant driver at the time of an alleged offence will be admissible in criminal proceedings, this constitutes only prima facie evidence which can be contradicted (see section 64 of the RTO).

51.  It is also pertinent to bear in mind that although it is an offence not to provide particulars of the relevant driver when requested to do so, this is not an absolute offence.  A defence of lack of knowledge is available : see section 63(5).

52.  Fourthly, I turn to the question of the penalties for non-compliance.  The failure or refusal to provide the necessary particulars without reasonable excuse is punishable by a maximum fine of $10,000 and imprisonment for 6 months.  It is relevant in this context to bear in mind as well the fact that the obligation contained in section 63 to provide the relevant information applies in relation to any suspected offence under the RTO, not just the more serious ones.  A perusal of Part V of the RTO demonstrates at once the range of offences.

53.  In these two respects can be seen two of the distinctions between the legislation in Hong Kong and that in the United Kingdom, (which was considered by the Privy Council in Brown v Stott).  In the United Kingdom, the inquiry as to the identity of the relevant driver does not apply to every offence under the equivalent road traffic legislation.  Excluded are the most minor offences and offences of a more regulatory nature (such as those in relation to driving instruction).  Included are, however, not only the most serious traffic offences (such as causing death by dangerous or careless driving) but also less serious ones such as a failure to comply with traffic signals.  The second distinction is in relation to penalty.  Here, a custodial sentence for non-compliance is not an available option.  These points were emphasized in Brown v Stott : see 691H-692C, 705C-D, 728E-F and 732A.

54.  I do not, however, regard the fact that the available sentencing options in Hong Kong, being heavier than in the United Kingdom or some other jurisdictions, as being in any way sufficiently weighty to tip the scales : -

(1)  The reason for having the custodial sentencing option can be seen from the legislative history : see paragraph 11 above.  This is a matter on which the court should be more ready to accord to the legislature some margin of appreciation.  In other words, there appear to be good public policy reasons for the imposition of custodial sentences.

(2)  It is of course not in every case that a custodial sentence will be imposed; only in the more serious situations.  The need to examine the seriousness of the underlying traffic offence is relevant here : - see paragraph 10(6) above (referring to section 63(7) of the RTO).

(3)  Hong Kong is not in any event unique in providing for the possibility of a custodial sentence for this type of offence.  Mr Zervos and Mr Wan referred us to the legislation of a number of jurisdictions in which this was a sentencing option : Western Australia, New South Wales, South Africa and Ireland, among others.

55.  Nor do I place much weight on the argument that section 63 applies irrespective of the nature of the underlying traffic offence under the RTO, be it a serious or a minor offence.  Once one accepts that all offences under the RTO are part of an overall regulatory scheme to govern effectively the use of motor vehicles in Hong Kong and to protect the public from harm, it is of little consequence whether serious or minor offences are affected by section 63.

D. Conclusion on the constitutionality issue

56.  For the above reasons, I am of the view that section 63 is constitutionally justified and that the right to a fair trial is not infringed.

57.  I am reinforced in my conclusions by the fact that provisions similar to section 63 have been upheld in other jurisdictions : in European jurisprudence, see O’Halloran; in the United Kingdom, see Brown v Stott.  It was also the position in Hong Kong prior to the Magistrate’s ruling in the present case : see Tsang Wai Keung.  Any distinctions are, in my view, not of any significance.

58.  The Magistrate’s extensive analysis of the relevant authorities and arguments, with respect, mainly proceeded on the premise that the right to silence and the privilege against self-incrimination were absolute.  His reliance on one of the dissenting judgments in O’Halloran (the judgment of Judge Pavloschi) demonstrates this.  This was the fundamental error in his reasoning.  He was (as we are) bound by the decisions of the Court of Final Appeal in Lee Ming Tee and Koon Wing Yee to the effect that these rights are not absolute.  It is fair to point out that the Magistrate did deal with the alternative position on the assumption that the two rights were capable of derogation or qualification.  As regards proportionality, the main factor that influenced the Magistrate was the lack of evidence going to the use of section 63.  This really went to the question of whether that provision was a necessary tool in the public interest.  As discussed above, the necessity for it can quite easily be demonstrated.

59.  Lastly, I should also mention another point of difference identified by the Magistrate between section 63 and the equivalent legislation in the United Kingdom.  The Magistrate had originally been under the impression that in the United Kingdom, the demand for information can only made a maximum of 28 days from the date of an alleged offence, while by contrast under section 63, the period is 6 months.  As can be seen by the content of Question (7) of the Case Stated, the Magistrate accepted he was in error.  The reference to 28 days in the UK legislation is to the period within which a request for information about the identity of a driver must be answered : see section 172(7) of the Road Traffic Act 1988 (as amended by the Road Traffic Act 1991).  The relevant period in Hong Kong is 21 days : see sections 63(3) and (4) of the RTO.  It is not clear what the position is in the United Kingdom regarding the applicable period of time from the date of the offence within which a demand can be made (if there is a time limit at all).  Even if the corresponding period were less than the applicable period under the RTO, any difference is not significant at all in my view.  The Magistrate stated that there was no evidence put before him as to why a period of 6 months was deemed necessary particularly (as he put it) “when memories will have been eroded after the passage of months”.  It is reasonably clear that the reason why 6 months was considered appropriate by the legislature has to do with the time needed, in some cases, for proper investigation to be carried out (for example, a hit and run situation when there are no witnesses).  Fading memories may be relevant when one is dealing with a period of years, but not so much in terms of months.  As regards the period within which a response must be given, there is little difference between a period of 28 days and one of 21.

60.  I am satisfied that “in the round”, the right to a fair trial has not been infringed to such an extent that the provision is unconstitutional.  The public interest in having a provision such as section 63 is, in my judgment, overwhelming.  The “serious social evil” to which it is directed is not to be underestimated.

The procedural issues

61.  I now turn to those procedural issues raised in the Case Stated.  These have already been identified in paragraph 18 above.

A. Whatever the merits, did the Magistrate have jurisdiction even to deal with the constitutional issue?

62.  The point raised here by the Appellant is one that is based on cases such as R v Wicks [1998] AC 92.  Essentially, it is that a constitutional challenge (such as in the present case) ought to be (and can only be) canvassed in separate Judicial Review proceedings.  The argument is predicated on the assumption that the legality of the demand made by the police to the Respondent under section 63 (the constitutionality issue) was separate from the offence itself (namely, the failure to respond).  The proper course, according to the Appellant, was to challenge the legality of the notice in Judicial Review proceedings.

63.  This point can be disposed of shortly.  It is no answer to a constitutional challenge to say that the point can also be taken in other proceedings when, on a criminal charge, the defendant wishes to challenge the legality of the very provision under which he or she has been charged.  As Lord Irvine of Lairg said in Boddington v British Transport Authorities [1999] 2 AC 143, at 162G, while the question is ultimately one of statutory construction whether a constitutional challenge is integral to the defence to a statutory offence, only clear words could take away the right of a defendant in criminal proceedings to challenge the lawfulness of a provision where his prosecution is premised on its validity.  In the present case, there can be no doubt that the Respondent’s prosecution was premised on section 63 being a valid provision.

64.  This court has, since the conclusion of arguments in the present appeal, handed down its Judgment in Secretary for Justice v Ocean Technology Limited and Others, unreported, HCMA 173 of 2008, 12 December 2008.  I agree with the observations of Stock JA in relation to this issue (see paragraphs 162 to 163 below).

B. Even if jurisdiction existed, what in any event ought the Magistrate have done once he arrived at the conclusion he did?

65.  Where, as in the present case, a magistrate has made a finding to the effect that a provision is unconstitutional and a prosecution is premised on that provision, the correct approach is to be found in Yau Yuk Lung.

66.  The approach that was applicable in the present instance, given that the Appellant wished to challenge the Magistrate’s finding of unconstitutionality, was to enable the Secretary for Justice to apply to him to state a case under section 105 of the Magistrates Ordinance and then adjourn the case pending the resolution of the Case Stated : - see 361D-362D (paragraphs 67-71) (per Ribeiro PJ).  The Magistrate ought not to have dismissed the summons.

The role of the amicus curiae

67.  As indicated earlier, at the outset of the hearing before us (and even before), the Respondent made clear his objections to the appointment of an amicus curiae and to Mr Wan in particular.  Long written submissions were provided to the court going to this issue.  The position adopted was that the Respondent saw himself as being sufficiently versed in the relevant legal arguments to provide the court with the requisite assistance; that aside, it was questionable whether Mr Wan was in perception sufficiently impartial (the assertion here was that he was not on account of his having acted for the Government in a number of high profile cases).  The Respondent fully accepted there was no question of Mr Wan’s integrity being impugned in any way; it was purely an argument based on perception.

68.  The role of an amicus curiae is to provide the court with the necessary assistance in cases (and particularly in public law cases involving difficult or important points of law or principle) where this may be lacking for any reason.  The absence of legal representation for one or more of the parties provides an obvious example especially in a case of constitutional significance where an amicus curiae may be considered to be appointed.  Mr Wan has provided an impartial view of the applicable legal principles.  While no doubt, the Respondent has made an in-depth study of the subject, he is not a lawyer.  Mr Wan has in the present case provided the court with much assistance.

69.  Lastly, in this context, I ought to deal with the Respondent’s argument that Mr Wan was, from a perception point of view, not sufficiently partial.  This submission was based on a lack of awareness of the role and duties of barristers.  The training of barristers ensures that generally, they are able to act fearlessly for whomsoever they may be asked to represent.  Where called upon by the court to act as an amicus curiae, a barrister is equally able to assume an impartial role.  In the present instance, there was no question of Mr Wan being unable to provide, objectively and fairly, the assistance required by the court.

Conclusion

70.  For the foregoing reasons, the questions posed in the Case Stated can be answered as follows (the questions, summarized in paragraph 15 above, are contained in the Addendum) : -

(1)  Question 1

      Yes.  The Magistrate did have jurisdiction to deal with arguments on the validity or constitutionality of section 63 of the RTO.

(2)  Question 2

      Yes.  Although the Magistrate had jurisdiction to dismiss the summons, in accordance with the decision in Yau Yuk Lung, he ought to have enabled the Appellant to apply for a case to be stated, acceded to an applicaton to state a case and adjourned the proceedings pending the outcome of the appeal.

(3)  Question 3

      Yes.  The correct approach was as set out in Secretary for Justice v Yau Yuk Lung.  In the circumstances, where the prosecution clearly intended to challenge the Magistrate’s ruling on the constitutionality issue, he ought to have adjourned the hearing of the summons before him.

(4)  Question 4

      Yes.  Attorney General v Tsang Wai Keung, being a decision of the High Court decided on virtually the same point before him, the Magistrate ought to have followed it.

(5)  Question 5

      Yes.  The Magistrate was in error in holding that section 63 had an adverse effect on the right of the Respondent to a fair trial in breach of Article 11(2)(g) of the Bill of Rights (or of Article 10).  Article 11 of the Bill of Rights was, in any event, not relevant.

(6)  Question 6

      Yes.  The Magistrate was in error to hold that section 63 of the RTO ceased to have effect.

(7)  Question 7

      Yes.  The Magistrate erred in his findings on proportionality.

71.  For my part, I would allow the appeal, set aside the order of the Magistrate dismissing the charge and remit the case to another Magistrate for trial de novo in accordance with the law as stated above.

Hon Stuart-Moore V-P :

72.  Richard Latker (the respondent) was the registered owner of a car which travelled through a red traffic light.  The offence was captured on camera and the respondent was duly sent a notice requiring him to furnish the details of the person who had been driving his car at the material time.  When the respondent failed to reply, he was sent a written reminder.  When he again made no reply, he was telephoned by a police officer.  It was then, somewhat incongruously, that the respondent said he would cooperate fully in the investigation provided he was not compelled to forfeit rights which were protected by the Basic Law.

73.  Arising from these undisputed facts, the respondent then found himself faced with a summons alleging that:

“... whereas the driver of a vehicle displaying registration mark JY 9387 was suspected of having committed an offence, namely ‘failing to comply with traffic signal’ under this ordinance on 30^th July 2007 at Sau Mau Ping Road (northwest bound) at junction with Sau Ming Road, YOU being the registered owner of the said vehicle during the alleged offence, did on 24^th August 2007, fail on demand made by means of a notice served on you by post on 2^nd August 2007 to furnish a signed written statement in the form specified in the notice giving the name, address and driving licence number of the driver of the said vehicle at the time of the alleged offence and your relationship, if any, to such driver, within 21 days to the specified officer, namely Police Constable 55413.

CONTRARY TO: sections 63(1)(a) and (6)(a) Road Traffic Ordinance, Cap. 374.”

74.  At the conclusion of the trial, the magistrate acquitted the respondent having found that:

“109.  ... The draconian nature of the power under section 63 of the Road Traffic Ordinance coupled with the lack of any evidence or material whatsoever to justify the continued existence of that power mean that the undoubted violation of the defendant’s right to silence and his privilege against self-incrimination must result in a trial that cannot, in any sense whatsoever, be said to be fair.

110.  Accordingly, I hold that the power in section 63 is ‘Bill [of Rights Ordinance] inconsistent’. That being the case, the section has ceased to have any effect. ...”

The magistrate’s reference to the Bill of Rights Ordinance (Cap. 383) was a specific reference to Articles 10 and 11 and, in particular, to Article 11(2)(g) which states:

“(2)  In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality-

......

(g)  not to be compelled to testify against himself or to confess guilt.”

75.  However, in arriving at his conclusion that section 63 of the Road Traffic Ordinance, Cap. 374 (RTO), was unconstitutional, the magistrate departed from the approach taken by P Chan J in Attorney General v Tsang Wai-keung [1996] 7 HKPLR 163 which was closely analogous to the instant case.  The magistrate referred to a large body of case law on associated topics following that decision when seeking to justify his departure from precedent.  Ultimately, he placed considerable reliance on the dissenting judgment of Judge Pavlovschi of Moldova, one of two judges to dissent from the majority in the court of seventeen judges in the European Court of Human Rights decision in O’Halloran and Anor v United Kingdom [2007] All ER (D) 07 (Jul) (also reported in [2007] Crim LR 897).

76.  This leads me to answer straightaway the short point raised in Question 4 of the Case Stated, namely, “whether the magistrate was in error in holding that the case of Attorney General v Tsang Wai-keung no longer represented good law for the reasons [he set out in his findings] and was no longer binding upon him”.  Tsang Wai-keung was a decision of the High Court which has not been overturned, or even criticised so far as we are aware.  As such, this should have been followed by the magistrate unless any obvious error in that decision could be identified.  Here there was none. 

77.  The principle involved in Tsang Wai-keung was in all respects the same as that with which we are presently concerned and provided an authority directly on point.  That case was concerned with a contravention of section 62A of the Cross-Harbour Tunnel Ordinance, Cap. 203, which is otherwise, for all practical purposes, an offence that is set out in identical terms to section 63 of the RTO.  The maximum penalty on conviction is also the same.  P Chan J held that section 62A was a “rational and proportionate response to a serious social problem”.

78.  It follows, therefore, that while the magistrate may have felt himself to be in personal disagreement with the conclusions reached in Tsang Wai-keung, he was nevertheless obliged to follow that decision.  Although that decision was reached prior to 1 July 1997, as this was a decision of a judge of the High Court it remained binding on the magistrate “unless it could be shown to be ousted by higher authority or found to be per incuriam”.  (See: Owen John Inglis v Loh Lai-kuen Eda (Permanent Magistrate) [2004] 4 HKC 220 at paragraph 13).

79.  Mr Zervos SC also took us to the judgment in A Solicitor v The Law Society of Hong Kong [2008] 2 HKLRD 576 where (at 585, footnote 2) Li CJ described the doctrine of precedent in these terms:

“The doctrine of precedent involves a decision of a superior court being binding on a lower court.  The doctrine of precedent also includes the doctrine of stare decisis which involves a superior court being bound by its own previous decision.  See Sir Anthony Mason :‘The Use and Abuse of Precedent’(1988) 4 Australian Bar Review93 at pp. 95 and 98.”

Later in that judgment (at paragraph 19), Li CJ continued:

“The doctrine of precedent is a fundamental feature of our legal system based on the common law.  It gives the necessary degree of certainty to the law and provides reasonable predictability and consistency to its application. ...”

80.  These passages (above) are an echo of what is set out in Halsbury’s Laws of England (4^th ed., Reissue) Vol 37, paragraph 1237:

“Ratio decidendi.  The use of precedent is an indispensable foundation upon which to decide what is the law and its application to individual cases; it provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. The enunciation of the reason or principle upon which a question before a court has been decided is alone binding as a precedent. This underlying principle is called the ratio decidendi, namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives rise to the decision. What constitutes binding precedent is the ratio decidendi, and this is almost always to be ascertained by an analysis of the material facts of the case, for a judicial decision is often reached by a process of reasoning involving a major premise consisting of a pre-existing rule of law, either statutory or judge-made, and a minor premise consisting of the material facts of the case under immediate consideration.”

81.  The 4^th Question set out in the Case Stated must, in my view, be answered in the affirmative.

82.  Turning now to the 1^st Question posed in the Case Stated, namely, “whether the magistrate was correct in holding that he had jurisdiction to rule on the validity and/or constitutionality of [section 63 of the RTO]”, again it seems to me that the answer is plain.

83.  In my opinion, the magistrate had jurisdiction, following the same reasoning provided by the House of Lords in Boddington v British Transport Police [1999] 2 AC 143.  In that case, a stipendiary magistrate had rejected a defendant’s challenge to the validity of a bye-law.  The defendant’s appeal to the Divisional Court by way of Case Stated was dismissed but, on appeal to the House of Lords, it was held that a defendant was not precluded from raising at his trial the contention that a bye-law was ultra vires.  Lord Steyn’s judgment (at 165-166) contained the following passage:

“It is a truth generally acknowledged among lawyers that the complexity of a civil or criminal case does not depend on the level of the hierarchy of courts where it is heard. On a given day a bench of magistrates may have to decide a more difficult case than an appeal being heard by the Appellate Committee of the House of Lords. Magistrates are the bedrock of the English criminal justice system: they decide more than 95 per cent of all criminal cases tried in England and Wales. Frequently they are called upon to decide complex questions of fact and, with the aid of the justices’ clerk, difficult questions of law. For example, in criminal cases justices may have to exercise control over proceedings through the abuse of process jurisdiction; they may have to decide issues of fact on which they heard conflicting scientific evidence; they may have to deal with intractable problems of similar fact evidence or sensitive questions under the Police and Criminal Evidence Act 1984; they may have to decide whether as a matter of law undisputed or disputed conduct by a defendant is or may be a criminal offence; and so forth. The working assumption has been that every court of criminal jurisdiction including magistrates’ courts must decide all issues of fact or law which need to be determined in order to establish the guilt or innocence of a defendant. ...” [Emphasis added]

84.  Later (at 173), Lord Steyn continued:

“There is no good reason why a defendant in a criminal case should be precluded from arguing that a byelaw is invalid where that could afford him with a defence. Sometimes his challenge may be defeated by special statutory provisions on analogy with the decision in Reg. v. Wicks [1998] A.C. 92. The defence may fail because the relevant statutory provisions are held to be directory rather than mandatory. It may be held that substantial compliance is sufficient. But, if an issue as to the procedural the validity of a byelaw is raised, the trial court must rule on it.”

85.  I would answer the 1^st Question, therefore, in the affirmative.

86.  This answer leads conveniently to the 2^nd Question posed in the Case Stated which was that if the magistrate did have the jurisdiction to rule on the constitutionality of section 63 of the RTO, did he have “jurisdiction to dismiss the summons as per Bokhary PJ at paragraph 51 (920J to 921C) in the case of Secretary for Justice v Yau Yuk-lung [(2007) 3 HKLRD 903]”.

87.  In my opinion, the short answer to the 2^nd Question, at least so far as it concerns the jurisdiction to dismiss the summons, is ‘Yes’.  This follows naturally from the reasoning given in the answer to the 1^st Question. 

88.  However, there is a proviso which should be borne in mind before a formal dismissal is entered.  The magistrate ought first to have adopted the approach which Ribeiro PJ propounded in Secretary for Justice v Yau Yuk-lung.  This is set out between paragraphs 64 to 71 where the references to ‘section 27’ and the ‘Ordinance’ relate to the Magistrates Ordinance, Cap. 227.  Using the same emphasis as Mr Wan, Ribeiro PJ stated as follows:

“64.  Where an information charges a defendant with an offence which is held to be unconstitutional, there is plainly a ‘defect in the substance ... of the information’ so that s 27 is engaged.  Leaving aside for the moment what should happen if the prosecution should wish at that point to challenge such determination, the scheme of s 27(1) requires the magistrate next to consider, subject to sub-s (2), either amending the information or dismissing it.  Subsection (2), which is given precedence, prescribes in mandatory terms that the magistrate should amend the information, removing the option of its dismissal, if an amendment can be made without causing injustice or where any potential injustice would be cured by the procedural measures referred to in s 27(2)(b). 

... If no suitable alternative offence can be found, or if the evidence is insufficient to support a suggested charge, amendment (assumed in the present context to take the form of substituting the offence charged) would not be a genuine option.  In such cases, and in cases where a proposed amendment cannot be made without injustice, s 27(1) requires the magistrate to dismiss the information.

......

68.  A decision that a statutory provision is unconstitutional is of the gravest import and generally calls for examination by the higher courts.  It is therefore important to consider the correct procedural approach where a challenge to constitutionality is made in the magistrates’ courts. 

69.  If the challenge fails, no particular problems arise.  If the defendant is convicted of the offence as charged, the challenge to constitutionality can be renewed on appeal or, where appropriate, on a judicial review.  However, if the challenge to constitutionality succeeds, the position is more complicated.  As s 27 is engaged, the magistrate would be expected to follow the procedures prescribed by that section: considering whether an amendment can be made without injustice, and so forth.  But if that course is followed without interruption and the trial proceeds on the basis of a substituted offence (especially to the point of an acquittal), difficulties may lie in the way of any challenge to the ruling that the offence originally charged is unconstitutional.  Moreover, if that ruling is held on appeal to have been wrong, the opportunity of proceeding against the defendant on the original charge is likely to have been lost.

70.  In my view, where the prosecution wishes to question a determination of unconstitutionality, the magistrate should generally, before proceeding to consider possible amendment as prescribed by section 27, accede to an application to state a case pursuant to section 105 of the Ordinance in respect of that determination, adjourning the proceedings pending the outcome of such appeal.  Section 105 materially states as follows:

‘Within 14 clear days after the hearing and determination by a magistrate of any complaint, information, charge or other proceeding which he has power to determine in a summary way, either party thereto or any person aggrieved thereby who desires to question by way of appeal any conviction, order, determination or other proceeding as aforesaid on the ground that it is erroneous in point of law, or that it is in excess of jurisdiction, may apply in writing to the magistrate to state and sign a case setting forth the facts and the grounds on which the conviction, order or determination was granted and the grounds on which the proceeding is questioned, for the opinion of a judge ...’

71.  Adoption of this procedure enables the question of constitutionality to be examined at the highest levels of court while preserving the position in the magistrates’ court.  If the magistrate’s decision is overturned, the appellate tribunal may remit the case for trial de novo on the original charge before another magistrate.  And if the magistrate’s ruling is affirmed, the appellate court may either remit the matter to the trial magistrate to consider possible amendment or it may itself effect an amendment pursuant to s 27 and then remit the matter for trial de novo on the substituted charge.  As is pointed out in HKSAR v Tse So So, a judgment of this Court handed down on the same day as the present judgment, this approach to amendment by an appellate court was followed (although not in relation to a constitutional challenge) in Fai Ma Trading Co Ltd v LS Lai (Industry Officer) and (in the context of an incomplete review under s 104 of the Ordinance) in Poon Chau Cheong v Secretary for Justice.” [Emphasis added]

89.  The procedure suggested by Ribeiro PJ was no doubt for reasons of the kind foreshadowed in Boddington v British Transport Police (above) where Lord Slynn of Hadley (at 164G) said:

“The risk of divergent decisions by magistrates is of course present but if a decision by a court of criminal jurisdiction that a byelaw or administrative act pursuant to it is ultra vires is of importance to a prosecuting authority the latter can always challenge it. It is indeed a matter for consideration whether some simple form of reference by magistrates’ courts to the Divisional Court of questions of invalidity could not be set up.”

In Hong Kong, following the procedure outlined by Ribeiro PJ, there exists a simple means by which the opinion of a magistrate on an issue of a constitutional nature can be examined in the higher courts when that opinion is the subject of challenge by the prosecution.

90.  The 3^rd Question in the Case Stated dealt with the position “if the magistrate did not have the jurisdiction” to rule on the validity and/or the constitutionality of section 63 of the RTO, “whether the magistrate otherwise failed to follow the procedure as set out in Secretary for Justice v Yau Yuk-lung (above)”. 

91.  Leaving aside the preamble to this Question, an affirmative answer obviously follows from the answer given to the 2^nd Question.

92.  I have earlier dealt with the 4^th Question.  The 5^th Question was closely related to it.  Its terms were these:

“If the case of Attorney General v Tsang Wai-keung [(1996) 7 HKPLR 163] is no longer binding upon the magistrate, ... [was] the magistrate in error in holding that the section and its application had such an adverse effect upon the fairness of the trial that the rights of the respondent under Article 11(2)(g) of the Bill of Rights Ordinance could not be given full and due weight, particularly when judicial opinion has accepted to a degree that the giving of the information demanded is, in effect, an involuntary admission of guilt to an underlying offence.”

93.  The 5^th Question in the Case Stated can be dealt with extremely briefly as it is prefaced with the words: “If the case of the Attorney General v Tsang Wai-keung is no longer binding upon the magistrate ...”.  As Tsang Wai-keung’s case was, for the reasons already given, binding on the magistrate, it is not necessary to analyse in detail what remains of the question namely, “whether the magistrate was in error in holding that section [63 of the RTO] and its application had such an adverse effect upon the fairness of the trial that the rights of the respondent under Article 11(2)(g) of the Bill of Rights Ordinance could not be given full and due weight, particularly when judicial opinion has accepted to a degree that the giving of the information demanded is, in effect, an involuntary admission of guilt of an underlying offence”.

94.  I would merely add that it is difficult to see how the respondent’s rights under Article 11 of the Bill of Rights, on the summons he faced, were in any sense compromised when he had provided none of the information he was obliged to give if he was aware of the driver’s identity.  The offence lay in his failure to provide that information.

95.  As to the proposition raised in the 5^th Question, Ribeiro PJ, in HKSAR v Lee Ming-tee and Anor [2001] 4 HKCFAR 133, at 171, said:

“Article 11(2)(g), on the other hand, only applies to persons who face a criminal charge and the immunity then conferred is only a testimonial immunity, namely, the right ‘not to be compelled to testify against himself or to confess guilt’.  It is therefore of a much narrower scope than the common law privilege against self-incrimination ...”

96.  Article 10 of the Bill of Rights, however, might properly be said to have relevance to the 5^th Question as this deals with every person’s absolute right to a fair hearing.  This important concept obviously incorporates the well-established general right to silence on the part of a person accused of committing a criminal offence.  The right to silence is not, however, absolute and, as Ribeiro PJ in Lee Ming-tee and Anor (above), stated (at 179E):

“... in the constitutional, legislative and common law context of the HKSAR, and in line with the approach adopted in Brown v Stott [2001] SLT 59, the impact of directly or derivatively using compulsorily obtained evidence on the fairness of a trial and on the presumption of innocence must be assessed, not in absolute terms, but by balancing the competing public interests, and not by focusing on one aspect, ... in isolation, but by taking the trial process as a whole.”

97.  The present case is specifically concerned with the requirement of the respondent to provide details of the driver at the time when the vehicle registered to him committed a traffic offence.  Mr Zervos placed reliance on the decision of the Court of Human Rights in O’Halloran and Anor v United Kingdom [2007] All ER (D) 07 (Jul) (Approved judgment), (also reported at [2007] Crim LR 897), where more or less the same points were taken on behalf of the 2^nd applicant as those in the instant case.  The headnote helpfully sets out the matter in these terms.

“Section 172 of the Road Traffic Act 1972, so far as material, provides: ‘... (2) Where the driver of a vehicle is alleged to be guilty of an offence to which this section applies - (a) the person keeping the vehicle shall give such information as to the identity of the driver as he may be required to give by or on behalf of a chief officer of police ... (4) A person shall not be guilty of an offence by virtue of paragraph (a) of subsection (2) above if he shows that he did not know and could not with reasonable diligence have ascertained who the driver of the vehicle was ...’

Vehicles of which the applicants were the registered keepers were caught on a speed camera driving in excess of the applicable speed limit. Each of the applicants received [a] notice of intended prosecution. They were informed that, as registered keepers of their vehicles, they were required to provide the full name and address of the driver at the time and on the occasion specified; that failure to provide the information was a criminal offence under s 172 of the Road Traffic Act 1988; and that the penalty for failure to give information was a fine of up to £1,000, and disqualification from driving or an endorsement of three penalty points on their driving licence. The first applicant confirmed that he was the driver at the relevant time and was charged with speeding. Prior to trial he sought to exclude the confession contained in his reply to the notice of intended prosecution. His application was refused and he was convicted of the offence. The second applicant on receiving the notice wrote to the police invoking his right to remain silent and the privilege against self-incrimination. He refused to supply the information [and] was summoned for failing to comply with s 172. He was convicted. Both applicants complained to the European Court of Human Rights that they had been subjected to compulsion to give incriminating evidence in violation of the right to remain silent and the privilege against self-incrimination in contravention of art 6 of the European Convention on Human Rights. The fourth section of the Court to which the applications had been allocated declared them admissible and relinquished jurisdiction in favour of the Grand Chamber.

The court ruled (by a majority):

The right to remain silent and the right not to incriminate oneself were not absolute rights and the right to require an actual or potential suspect to provide information which contributed or might contribute to his conviction by direct compulsion would not automatically result in a violation of art 6 of the Convention. While the right to a fair trial under that article was an unqualified right, what constituted a fair trial could not be the subject of a single unvarying rule, but had to depend on the circumstances of the particular case. In order to determine whether the essence of the applicant’s right to remain silent and privilege against self-incrimination had been infringed, it was necessary to focus on the nature and degree of compulsion used to obtain the evidence, the existence of any relevant safeguards in the procedure, and the use to which any material so obtained was put.

In the instant case, the compulsion was of a direct nature; s 172 of the 1988 Act imposed a specific duty on the registered keeper of a vehicle to give information about the driver of the vehicle in certain circumstances. Although both the compulsion and the underlying offences were criminal in nature, the compulsion flowed from the fact that all who owned or drove motor cars knew that by doing so they subjected themselves to a regulatory regime. A further aspect of the compulsion in the instant case was the limited nature of the inquiry which the police were authorised to undertake. Section 172(2)(a) applied only where the driver of the vehicle was alleged to have committed a relevant offence and authorised the police to require information only as to the identity of the driver. Moreover, the section did not sanction prolonged questioning about facts alleged to give rise to criminal offences, and the penalty for declining to answer was moderate and non-custodial. No offence was committed if the keeper of the vehicle showed that he did not know and could not with reasonable diligence have known who the driver of the vehicle was. The offence was thus not one of strict liability and the risk of unreliable admissions was negligible. As to the use to which the statements were put, it remained for the prosecution to prove the offence beyond reasonable doubt in ordinary proceedings, including protection against the use of unreliable evidence and evidence obtained by oppression or improper means. The identity of the driver was only one element in the offence of speeding, and there was no question of a conviction arising in the underlying proceedings in respect solely of the information obtained as a result of s 172(2)(a). It followed that the essence of the applicants’ right to remain silent and their privilege against self-incrimination had not been destroyed. Accordingly, there had been no violation of art 6(1) of the Convention.”

98.  In the body of the judgment (at paragraph 57), it is stated that:

“Those who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles, and in the legal framework of the United Kingdom, these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.”

99.  In my view, the answer to the substantive part of the 5^th Question is ‘Yes’ and I take the view also that Article 11(2)(g) of the Bill of Rights Ordinance had no application.

100.  The 6^th Question is closely related to the 5^th and is equally briefly answered.  Its terms were that if section 63 of the RTO “does have the effect” suggested by the 5^th Question, “whether the magistrate was in error in holding that, thereby, the section ceased to have any effect”.

101.  Plainly, it must follow from my earlier conclusions that the answer is ‘Yes’.

102.  Lastly, turning to the 7^th Question, this was prefaced by the words: “If the Magistrate was in error as set out in [the 6^th Question] ...” before continuing:

“... whether the magistrate was in error in holding that the section is not a proportionate response to a perceived social problem, considering that no evidence was submitted to the magistrate of the scale and extent of that perceived problem, that there is, in [section 63 of the RTO], no distinction drawn between minor and more serious offences, that the section provides for imprisonment as a punishment in addition to a fine and discretionary disqualification from holding or obtaining a licence to drive, that the section allows for a question to be put other than who was the driver at the material time and that the section allows for the demand for information to be made up to six months after the commission of an alleged offence (the magistrate accepts that he was in error in his verdict in asserting that, in England and Wales, the demand for information can only be made up to twenty-eight days after the commission of the alleged offence; such time limit refers to the period within which a response is to be given by the registered keeper of the vehicle).”

103.  The question as to whether section 63 of the RTO is to be regarded as a “proportionate response” to the serious social problem which would exist if drivers of motor vehicles could not be identified by this means was considered in Attorney General v Tsang Wai-keung (above) in the context of section 62A of the Cross-Harbour Tunnel Ordinance, which was, as I have indicated earlier, in all other respects identical to section 63 of the RTO for practical purposes.  P Chan J recognized this when stating (at 170C):

“Furthermore, even if s.62A is inconsistent with art 11(2)(g), I also take the view that it is a rational and proportionate response to a serious problem. This provision is an extension of the equivalent provision s.63 of the Road Traffic Ordinance to the tunnel area in connection with tunnel offences. The purpose behind this provision is quite clear. If this provision is not effective, a driver would be able to avoid or escape responsibility by hit and run. There would then be little or no way in which the police or the authority can detect the real culprit of such a crime. This would result in the police being helpless to deal with such irresponsible drivers. Victims of traffic accidents would find themselves without any hope of claiming against the real culprit. They can of course pursue the registered owner but their chances would be weakened because of the inability to locate or identify the driver. In these circumstances, I should think that it is necessary for the police or the relevant authority such as the Cross Harbour Tunnel Company to retain such power. In my view, it is a reasonable and sensible provision. Even if it has the effect of curtailing part of the right of silence, I shall think that this is amply justified in view of the serious consequences arising from this social problem.”

104.  Similar sentiments were expressed by Lord Bingham of Cornhill in Brown v Stott [2003] 1 AC 681 at 704G when stating that:

“The high incidence of death and injury on the roads caused by the misuse of motor vehicles is a very serious problem common to almost all developed societies. The need to address it in an effective way, for the benefit of the public, could not be doubted. Among other ways in which democratic governments had sought to address it was by subjecting the use of motor vehicles to a regime of regulation and making provision for enforcement by identifying, prosecuting and punishing offending drivers.”

105.  It is not without significance, also, that while (unlike the United Kingdom) the maximum sentence for an offence contrary to section 63 of the RTO is 6 months’ imprisonment, it is highly improbable that for an offence, as here, of crossing a controlled junction against a red light, contrary to regulation 18 of the Road Traffic (Traffic Control) Regulations, Cap. 374G, a court would contemplate any sentence other than a fine coupled possibly with disqualification.  Whilst it is true that for an offence contrary to regulation 18, a maximum of 3 months’ imprisonment may be imposed on a first offender pursuant to regulation 61 (and up to 6 months’ imprisonment may be imposed for subsequent offences of this kind), proportionality, in this context, has to be looked at realistically.  Offences brought under the provisions of section 63 of the RTO will sometimes be related to substantive offences under the RTO of a far more serious kind than a red light infringement.

106.  In my opinion, the 7^th Question is to be answered in the affirmative.

107.  Accordingly, I am in full agreement with the affirmative answers given by Ma CJHC to all the Questions posed in the Case Stated.

108.  I, too, would allow the appeal and I concur with the consequential orders proposed by Ma CJHC.

Hon Stock JA :

The right in issue

109.  The right to silence and the privilege against self-incrimination are elements of the right to a fair trial. The right to silence and the privilege against self-incrimination may in certain circumstances be qualified, but not if in doing so the right to a fair trial is compromised, for the right to a fair trial is absolute. See Koon Wing Yee v Insider Dealing Tribunal [2008] 3 HKLRD 372 at paras. 81 to 83; HKSAR v Lee Ming Tee & Another (2001) 4 HKCFAR 133, 173J; Brown v Stott [2003] 1 AC 681 at 693D-E, 704D-F, 709B, 712A, 719E; O’Halloran & Francis v United Kingdom ECHR Grand Chamber, 29 June 2007; [2007] All E R (D) 07; [2007] Crim L R 897, at para. 53; R v S and another [2008] EWCA Crim 2177 para. 17.

110.  Once it is appreciated that the right to silence and the privilege against self- incrimination are but aspects of the right to a fair trial, the core issue in this case may more precisely be identified.

111.  That issue is whether the requirement of s. 63 (1) of the Road Traffic Ordinance, Cap 374, to provide information pursuant to a notice, contravenes the right of a person to a fair trial so as to infringe the protection afforded by art. 14(1) of the International Covenant on Civil and Political Rights (ICCPR) to which constitutional effect is given by art. 39 of the Basic Law; the terms of which protection we see repeated in art. 10 of the Bill of Rights.

112.  Since the Case Stated as well as argument before us have referred to arts. 10 and 11 (2) (g) of the Bill of Rights, rather than to the corresponding articles of the ICCPR, it is to the Bill of Rights numbering to which I will refer.

Was Article 10 engaged in this case ?

113.  For reasons provided by the Chief Judge I agree that this case did not engage art. 11(1)(g) of the Bill of Rights.

114.  It is clear enough that on a proper construction of the Ordinance the privilege against self-incrimination – where it is engaged in a particular case – is, by s. 63, abrogated. Whether such abrogation is permissible in the present context is another (and in this case, the prime) issue.

115.  But the first question that must be asked is whether art. 10 itself was engaged in this case, the issue to which we were alerted by Mr Wan’s submissions.

116.  The charge that was leveled against the respondent was of contravening the requirement of a registered owner of the vehicle to provide the identity, if known to him, of the driver of a vehicle at the time of an alleged motoring offence. The notice issued to him, with which he is said to have failed to comply, made no express allegation against him, nor intimated (save to such extent as may be implied from the circumstances of the case - as to which more later) that there was suspicion that he had committed the offence in question. At the time the notice was issued, and at the time of its expiry and of his alleged failure to comply with its requirements, no summons or charge accusing him of the traffic offence had been issued or laid.

117.  It could not reasonably be suggested that the respondent’s right to a fair hearing of the particular charge leveled against him, namely, that of failing to provide the name, address and driving licence number of the driver of the vehicle was in any way affected for there could be no question in those proceedings of using against him any information obtained from him by statutory, or other, compulsion.

118.  That, however, is not determinative of the issue, for it would be idle to ignore the fact that when the respondent was asked the question, proceedings for the substantive traffic offence were contemplated.

119.  Article 10 of the Bill of Rights Ordinance in its relevant part for present purposes stipulates that:

“In the determination of any criminal charge against him ... everyone shall be entitled to a fair ... hearing... by a competent, independent and impartial tribunal established by law.”

120.  That provision is to precisely the same effect as art. 6(1) of the European Convention.  The point is that in this context the right to a fair trial includes ‘the right of anyone charged with a criminal offence ... to remain silent and not to contribute to incriminating himself’: Funke v France (1993) 16 EHRR 297. This begs the question of the meaning, for the purpose of the provision, of the word ‘charged’.  The European Court has, in a series of cases, stated that the word "charged" in art. 6(1) has an autonomous meaning:

“That concept is ‘autonomous’; it has to be understood within the meaning of the Convention and not solely within its meaning in domestic law.  It may thus be defined as ‘the official notification given to an individual by the competent authority of an allegation that he has committed a criminal offence’, a definition that also corresponds to the test whether ‘the situation of the [suspect] has been substantially affected’.”

Serves v France (1997) 28 EHRR 265 at 283.

121.  This wider or autonomous meaning of the word ‘charged’ is reflected in the European cases which establish that ‘where the investigation is criminal rather than administrative ... the privilege against self-incrimination applies even in the early stages’: Emmerson, Ashworth and Macdonald Human Rights and Criminal Justice, 2d ed., para. 15-80; in other words, at the investigation stage where the information sought from a suspect is or could be used in subsequent judicial proceedings against him or her. The common law rationale for extending the privilege against self-incrimination beyond the trial stage to the pre-trial investigatory stage is touched upon by Lord Hoffmann in R v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and another [2000] 2 AC 412 at 419:

“As Lord Mustill said in Reg. V. Director of Serious Fraud Office, Ex Parte Smith [1993] A.C. 1, 30-31, the expression "privilege against self-incrimination" or "right to silence" is used to refer to several loosely linked rules and principles of immunity, differing in scope and rationale.  Perhaps the best known example is the rule that a person on trial should not be compelled to undergo inquisition by the prosecution or the court. Such methods were brought into disrepute by the practices of the prerogative courts of the 16th and 17th centuries and have since been regarded as inconsistent with a fair trial. But the rule plainly has nothing to do with the present case which is not concerned with the trial process at all.  There are also associated principles which confer the right to silence or privilege against self-incrimination during the pre-trial investigation, such as the exclusion of involuntary confessions and the prohibition on the questioning of suspects without caution or after charge.  These latter prohibitions are prophylactic rules designed to inhibit abuse of power by investigatory authorities and to preserve the fairness of the trial by preventing the eliciting of confessions which may have doubtful probative value.”

122.  The phrase in that passage that ‘... the rule plainly has nothing to do with the present case which is not concerned with the trial process at all,’ is a reference to the fact that in that case the applicants, upon whose sites were found large quantities of chemical waste, were served with a notice requiring them to disclose particulars of all those who had supplied waste to the applicant company, who had carried waste for the company and other related details and that, when local authority would not provide an undertaking that the answers given would not be used in a subsequent prosecution, the applicants refused to provide the information and a summons was issued alleging an offence of failing, without reasonable excuse, to comply with the requirement of the notice. It was held that because the notice did not form part of any adjudication or proceedings in which the applicants were charged but merely requested factual information, necessary to safeguard public health rather than for any admission of wrongdoing, the applicants were not entitled to refuse to provide information on grounds of self-incrimination.

123.  The material difference, for immediate purposes, between that case and the present is that in Green there had been statutorily-approved compulsory questioning by investigators entrusted with, and conducting, an investigation designed primarily for regulatory purposes, whereas in the present case the inquiry was conducted solely in order to seek information or evidence in order to support a criminal charge. This is a distinction discussed and emphasised in Human Rights and Criminal Justice, above, at paras. 15-79 and 15-80 and in R v Kearns [2003] 1 Cr App R 7.

124.  In Kearns, an official receiver was appointed to administer the bankruptcy of Mr Kearns. The official receiver required Mr Kearns to account for the withdrawal from his bank account of a substantial sum between the presentation of the bankruptcy petition and the bankruptcy adjudication. The failure, without reasonable excuse, to provide the requested information constituted an offence.  Mr Kearns failed to provide information and was prosecuted.  The Court of Appeal held against Mr Kearns’ argument that the offence- creating provision contravened his right to a fair trial, as guaranteed by art. 6 of the European Convention. The Court was persuaded to this view primarily by the fact that the demand for production of information was made in the course of an extra-judicial procedure, namely, an investigation of the estate of a bankrupt and was not made in order to provide evidence to prove a case against Mr Kearns. There was, at the time of the demand, no ‘charge’ against the bankrupt, no matter how widely that word was construed for the purposes of its autonomous meaning under art. 6 (see para. 54).

125.  At para. 53 of the judgment is a summary of the effect of the Strasbourg and UK cases in the course of which, and insofar as is relevant to the immediate point, Aikens J said:

“(5) A law will not be likely to infringe the right to silence or not to incriminate oneself if it demands the production of information for an administrative purpose or in the course of an extrajudicial enquiry.  However if the information so produced is or could be used in subsequent judicial proceedings, whether criminal or civil, then the use of the information in such proceedings could breach those rights and so make that trial unfair.

(6) Whether that is the case will depend on all circumstances of the case, but in particular (a) whether the information demanded is factual or an admission of guilt, and (b) whether the demand for the information and its subsequent use in proceedings is proportionate to the particular social or economic problem that the relevant law is intended to address.”

126.  There can be no question but that the inquiry in the present case was not made for an administrative or extra-judicial purpose.  It was made in the course of an investigation into the commission of a criminal offence and the purpose of seeking the information was, undoubtedly, to obtain evidence which would enable a charge to be laid. The issue therefore comes down to the question whether the respondent was, at the time the inquiry was made of him, a person charged within the wide meaning to be attributed to that word for the purpose of art. 10.

127.  The effect of the majority view in Weh v Austria (2005) 40 EHRR 37 is that a person in the respondent’s position at the time the notice was served upon him is not a person charged for the purpose of art. 6 of the Convention.

128.  The allegation in Weh was that the driver of a motor vehicle, which was registered in the applicant's name, had exceeded the speed limit on 5 March 1995. The prosecuting authorities instituted criminal proceedings for that offence against ‘unknown offenders’. It then ordered the applicant as the registered owner of the vehicle to disclose who had been driving it and he provided false information. For the offence of providing false information, he was prosecuted and convicted.  He argued that the obligation to divulge the name of the driver of the vehicle violated his privilege against self-incrimination. That contention brought into play the question whether he was a person charged, as contemplated by art. 6 (1). On this question, the Court split 4-3.

129.  The Court said, at paras. 41-44, that:

“A perusal of the Court’s case law shows that there are two types of cases in which it found violations of the right to silence and the privilege against self-incrimination.

First, there are cases relating to the use of compulsion for the purpose of obtaining information which might incriminate the person concerned in pending or anticipated criminal proceedings against him, or - in other words -  in respect of the offence with which that person has been "charged" within the autonomous meaning of Art. 6(1).

Secondly, there are cases concerning the use of incriminating information compulsorily obtained outside the context of criminal proceedings in a subsequent criminal prosecution.

However, it also follows from the Court’s case law that the privilege against self-incrimination does not per se prohibit the use of compulsory powers to obtain information outside the context of criminal proceedings against the person concerned.”

130.  The majority emphasized, at para. 49, that the question whether the privilege was engaged and violated was a case-specific issue. It went on to say this, at paras. 50 to 54:

“The heart of the applicant’s complaint is that he was punished for failure to give information which may have incriminated him in the context of criminal proceedings for speeding.  However, neither at the time when the applicant was requested to disclose the driver of his car nor thereafter were these proceedings conducted against him.

Thus, the present case is not one concerned with the use of compulsorily obtained information in subsequent criminal proceedings.

Moreover, the present case differs from the group of cases in which persons, against whom criminal proceedings were pending or at least anticipated, were compelled on pain of a penalty to give potentially incriminating information. In JB [(2000) 30 EHRR CD328] mixed tax-evasion and tax-assessment proceedings had already been opened against the applicant when he was requested to provide information on investments made by him. In Funke [(1993) 16 EHRR 297] and in Heaney and McGuiness [(2001) 33 EHRR 11] criminal proceedings were anticipated, though they had not been formally opened, at the time the respective applicants were required to give potentially incriminating information. In Funke the customs authorities had a specific suspicion against the applicant, in Heaney and McGuiness the applicants had been arrested on suspicion of terrorist offences.

In the present case the proceedings for speeding were conducted against unknown offenders, when the authorities requested the applicant under [the relevant statutory provision] to disclose who had been driving his car on March 5, 1995. There were clearly no proceedings for speeding pending against the applicant and it cannot even be said that they were anticipated as the authorities did not have any element of suspicion against him.

There is nothing to show that the applicant was "substantially affected" so as to consider him being "charged” with the offence of speeding within the autonomous meaning of Art. 6(1). It was merely in his capacity as the registered car owner that he was required to give information.  Moreover, he was only required to state a simple fact - namely who had been the driver of his car- which is not in itself incriminating.” (Emphasis added).

131.  The minority took a different view. At para. O-11 they said:

“The present case differs in the majority's opinion from the group of cases in which persons, against whom criminal proceedings were pending or at least anticipated, were compelled on pain of a penalty to give potentially incriminating information.  Even if we agree that the applicants in the various cases were not in an identical situation, we cannot find that a distinction between the cases in respect of the existence of a "criminal charge" is justified.  Looking behind the appearances at the reality of the situation, criminal proceedings for speeding were with some probability contemplated against the applicant.  In our opinion the request under [the statutory provision] was no more than a preliminary to such proceedings against the applicant.  When the applicant was requested to disclose who had been the driver of his car at a specific time when it had been speeding, he was in a situation in which he was compelled on pain of a fine... to give potentially incriminating information or to be punished for remaining silent.  There is little doubt that the proceedings for speeding which were so far conducted against unknown offenders would have been turned into proceedings against the applicant had he admitted to having driven the car and, thus, furnished the prosecution with a major elements of the case against him.  In these circumstances the applicant was in our opinion "substantially affected" and therefore "charged" within the autonomous meaning of Art. 6(1) with the offence of speeding, once the request to divulge the driver of the car was made.”

132.  Whether art.10 is engaged will always be a case-specific question.  I am inclined to the view that the minority’s approach is the more realistic in a case such as the present where a notice under s 63 is addressed to the registered owner of a private vehicle. This was a case of an ordinary private car, rather than that of a lorry or van or taxi or vehicle bearing a company logo, which latter categories of vehicle are more likely to be driven by an employee than by the registered owner.

133.  Section 63 contemplates the service of a notice on ‘any person, including both the registered owner and the person suspected of being the driver of the vehicle.’ There will be cases where there is no suspicion against the person upon whom a notice under s. 63 is served, where the notice is served because, and only because, it is thought that the recipient has information about the identity of the driver. I do not think that that is the reality where the police are investigating a road traffic offence by the driver of a standard private vehicle, because in the majority of cases the person most likely to have been the driver of such a vehicle is its owner and I consider it unrealistic to suggest that in such cases the authorities do not have an ‘element of suspicion’ against the registered owner.  The fact that the statutory provision itself refers to ‘the registered owner and the person suspected of being the driver of the vehicle’ does not, I think, affect this reality. I have some difficulty as well with the notion advanced by the majority that the ‘simple fact’ of providing the identity of the driver is not in itself incriminating. In the sense that it is not proof of the traffic offence, that must be correct, but the identity of the driver is an important item of proof in the prosecution that will inevitably follow in a case such as the present where a camera has photographed the vehicle jumping traffic lights.

134.  It is accordingly my opinion that in the present case art. 10 was engaged.

The respondent’s contention

135.  The next and prime question is whether the requirement imposed by s.63 contravenes the right to a fair trial.  It is a question that merits attention even if the conclusion at para. 134 above is incorrect, for not to address it would merely postpone the issue which is at the heart of the Case Stated to the inevitable case of the person who, in response to a s.63 notice, identifies himself as the driver and takes the point at the trial of the traffic violation charge.

136.  The respondent asserts that ss. 63 and 64 of the Ordinance, if given the sanction of the courts, undermine fundamental constitutional liberties and that such sanction would set a precedent for similar intrusion whenever it is suggested that there is a serious societal problem occasioned by a particular type of criminal offence. He accepts that the right to silence and the privilege against self-incrimination may be qualified where there are compelling grounds for so doing but he argues that the appellant, upon whom the burden lies, has not demonstrated that such grounds exist to justify the scheme imposed by ss. 63 and 64 of the Ordinance; that the measures thus taken by this legislation go significantly further than those sanctioned by the case law of other jurisdictions to which we have been taken; and that there are less intrusive routes by which the same objective might be achieved, that have not been examined – as far as one knows – by the authorities in Hong Kong.

The nature of the rights

137.  ‘The privilege against self-incrimination is deeply rooted in the criminal law’: R v S, above, at para. 16 in which Sir Igor Judge, Lord Chief Justice, added a citation from Saunders v UK (1996) 23 EHRR 313 that that privilege as well as the right to silence ‘ .. are generally recognized international standards which lie at the heart of the notion of a fair procedure under art. 6... the right not to incriminate oneself, in particular, presupposes that the prosecution in the criminal case seek to prove their case against the accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.  In this sense the right is closely linked to the presumption of innocence contained in art. 6(2).’

138.  That said, qualification of the right to silence and of the privilege against self-incrimination is not rare. Sections 63 and 64 of the Road Traffic Ordinance do not herald a new mechanism or inroad. The Lord Chief Justice continued (at para. 17) :

“It is well understood that the principle is subject to numerous statutory exceptions which limit, amend, or abrogate the privilege in specified circumstances.  Thus, notwithstanding the privilege, individuals may sometimes be required to answer questions or provide information or documents which may incriminate them.  As Lord Mustill explained in R v Director of Serious Fraud Office ex parte Smith [1993] AC 1 ... in relation to the general immunity against answering incriminating questions:

‘Few would dispute that some curtailment of the liberty is indispensable to the stability of society; and indeed in the United Kingdom today our lives are permeated by enforceable duties to provide information on demand...’

In some cases the use which may be made of any such information or answers in the course of distinct criminal proceedings is closely limited ... and in others the answers may provide direct evidence to support a subsequent prosecution (for example, s 172 of the Road Traffic Act 1988). In the Police and Criminal Evidence Act 1984 detailed structures are created to govern the provision of intimate samples (such as samples of blood and pubic hair) and non-intimate samples (such as non-pubic hair) and the need for and consequences of the absence of consent (where consent is required) or non-compliance (where it is not). In short, statutory provision has been made both to enable information provided or answers given in response to a statutory obligation to do so to be used in evidence in support of a subsequent prosecution, and for the failure or refusal to comply with a request for information, properly made, itself to constitute a criminal offence with consequent sanctions.”

139.  The privilege against self-incrimination and the right to silence are constituent elements of a fair trial as are other rights such as the presumption of innocence, the right of access to court, and equality of arms: Brown v Stott above at pp. 693- 697. Whilst these rights may be qualified in demonstrably necessary circumstances, the right to a fair trial is absolute, and ‘the public interest can never be invoked to deny that right [to a fair trial] to anybody under any circumstances.’: per Lord Hope in Brown v Stott at p. 719E. See also, to the same effect, the speech of Lord Bingham at p. 693D.

The test

140.  The test for acceptability of the direct use of compulsorily obtained self-incriminating materials has been stated by Ribeiro PJ in HKSAR v Lee Ming Tee & another (2001) 4HKCFAR 133: it is whether the measure is a proportionate response to a serious social problem that does not undermine the accused’s right to a fair trial in the round. His Lordship cited the opinion of Lord Hope in Brown v Stott, at p. 720, that the test of compatibility with art. 6(1) would not be satisfied ‘ if the modification or limitation "does not pursue a legitimate aim and if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be achieved": Ashingdane v United Kingdom (1985) 7 EHRR 528 at para. 57.’ In Brown v Stott, Lord Bingham said, at p. 704, that ‘[l]imited qualification of these rights is acceptable if reasonably directed by national authorities towards a clear and proper public objective and if representing no greater qualification than the situation calls for.’  Necessarily engaged in this assessment must be ‘ the nature and degree of compulsion used to obtain the evidence; the weight of the public interest in the investigation and punishment of the offence at issue; the existence of relevant safeguards in the procedure; and the use to which any material so obtained is put’: see Jalloh v Germany (2007) 44 EHRR 32 at para. 117.

141.  What constitutes a fair trial is a matter that must be determined in the context of the particular case, a point emphasised by Lord Bingham in Brown v Stott at p. 693E and later at p. 704D-F:

“What a fair trial requires cannot, however, be the subject of a single, unvarying collection of rules.  It is proper to take account of the facts and circumstances of particular cases, as the European Court has consistently done.

...

The general language of the Convention could have led to the formulation of hard- edged and inflexible statements of principle from which no departure could be sanctioned whatever the background or the circumstances. But this approach has been consistently eschewed by the court throughout its history.  The case law shows that the court has paid very close attention to the facts of particular cases coming before it, giving effect to factual differences and recognizing differences of degree.’

Precedent

142.  We have seen in the cases to which the Chief Judge, Stuart-Moore VP and I have referred that the European Court as well as the United Kingdom domestic courts have consistently upheld direct use of compulsorily obtained evidence about the identity of a driver pursuant to a notice to the registered owner or keeper of a vehicle. The justifications accepted by those courts have been rehearsed in the judgment of the Chief Judge. In short, the courts have been impressed by the following considerations :

(1)  that ‘[t]hose who choose to keep and drive motor cars can be taken to have accepted certain responsibilities and obligations as part of the regulatory regime relating to motor vehicles and ... these responsibilities include the obligation, in the event of suspected commission of road traffic offences, to inform the authorities of the identity of the driver on that occasion.’: O’Halloran, para. 57. See also Brown v Stott at pp. 795G-H.

(2)  the limited nature of the inquiry. It is ‘restricted to the putting of a single, simple question’ (Brown v Stott at p. 705B); as compared with, say, Saunders, in which a raft of questions were authorized, or Orkem v Commission of the European Communities [1989] ECR 3283, referred to at p. 425 of Green, in which the Commission sent Orkem ‘ a wide ranging questionnaire’; or a series of questions as in Koon. The Court in O’Halloran at para. 58, noted that the s. 172 Road Traffic Act inquiry was ‘ markedly more restricted than in previous cases in which applicants have been subject to statutory powers requiring production of "papers and documents of any kind relating to operations of interest to [the] department” (Funke.. ), or of "documents etc. which might be relevant for the assessment of taxes” (J.B. v Switzerland [ ECHR Second Section, 3 May 2001]..) [or as in the case of ] Heaney and McGuiness [where] the applicants were required to give a "full account of [their] movements and actions during any specified period...”, and in that of Shannon, information could be sought ... on any matter which appeared to be investigated to relate to the investigation.. .’ In Brown v Stott, Lord Bingham noted, at p. 705B-C that although an admission of driving might provide proof of one fact necessary to convict, the answer of itself could not incriminate since it was not without more an offence to drive a car (see also Weh above at para. 54 to the same effect); and Lord Steyn, at p. 710E, referred to ‘the narrowness of the interference’ for the provision was:

“... directed at obtaining information in one category, namely, the identity of the driver at the time when an offence was allegedly committed ... information [that was] usually peculiarly within the knowledge of the owner. .. [The section] does not authorise general questioning by the police to secure a confession to an offence.  On the other hand, [the section] does, depending on the circumstances, in effect authorise the police officer to invite the owner to make an admission of one element in a driving offence. It would, however, be an abuse of the power under [the provision] for the police officer to employ improper or overbearing methods of obtaining the information.  He may go no further than to ask who was the driver at the given time.  If the police officer strays beyond his power under [the section] the judge will have ample power at trial to exclude the evidence.  It is therefore a relatively narrow interference with the privilege in one area which poses widespread and serious law enforcement problems.”

(3)  the moderate and non-custodial nature of the penalty.: Brown v Stott, p. 705C; O’Halloran, para. 58, though I note that such moderate penalties have not been a universal hallmark of compulsory measures that have passed the test. I have in mind Green, where the maximum penalty available was an unlimited fine and two years’ imprisonment; and

(4)  in the case of Brown v Stott, that the offences covered by the statutory provision were limited to a schedule of offences that excluded the less serious and more regulatory in nature, such as driving instruction offences, the wearing of protective headgear, vehicle licensing offences: see Lord Bingham at pp. 691H to 692B.

The present provisions

143.  The considerations that motivated the European Court as well as the UK courts to uphold a compulsion on a keeper of owner of a vehicle to disclose the identity of a driver and the evidential use of information thereby obtained, hold good in the case of s. 63 of the Ordinance, save that failure to comply with a notice permits of a custodial penalty and that the type of ‘less serious and more regulatory’ offences which are excluded by the English legislation are not here excluded.

144.  These differences, in particular the introduction of the custodial sanction, are emphasized by the respondent and I accept that it is no answer to say in a vacuum that that is a relatively low custodial maximum, for that would devalue the premium that is placed on liberty of the individual, and there is a serious difference between the threat of imprisonment and the threat of a fine. The threat of imprisonment carries a degree of compulsion that is materially greater; the degree of compulsion is relevant to the fairness of a trial at which evidence obtained thereby is admitted; and that category of compulsion requires particular justification.

145.  As the Chief Judge has pointed out, the terms of s.63 (7) of the Ordinance look to some consonance between the penalty imposed for a s. 63 offence and the penalty merited by the alleged traffic violation, on the assumption it were proved, to which the notice relates. The degree of compulsion is, for that reason, qualified in the less serious cases. So, for example, in a case of causing death by dangerous driving, of which regrettably there have been a number of well-publicized instances in this jurisdiction in recent times, where the maximum penalty for the driving offence is 10 years imprisonment, the degree of compulsion on a person served with a s. 63 notice is not, I suggest, likely to be viewed as incommensurate whereas a six month term threatened in relation to a standard speeding offence, unqualified by the dictates of s. 63(7), might be.

146.  What the degree of compulsion is in a particular case is a different matter and it is for the tribunal in each instance to address that issue, for the provision of s. 64 which renders evidence obtained as a result of a notice prima facie admissible does not derogate from the power of a court to exclude an admission if the circumstances in which it was obtained in a particular case are found to be oppressive. This point was made in Brown v Stott at p. 705C-D:

“There is in the present case no suggestion of improper coercion or oppression such as might give rise to unreliable admissions and so contribute to a miscarriage of justice, and if there were evidence of such conduct the trial judge would have ample power to exclude evidence of the admission.”

The question of exclusion on such grounds is one for the trial tribunal in the particular proceedings: see Green above and also Director of Public Prosecutions v Wilson [2002] RTR 6.

147.  In this regard, I note the terms of the notice served on the respondent which I assume to be in standard form. It informs the recipient that he is required by law to identify the driver and, in bold print, that non-compliance with the notice constitutes an offence and renders the offender liable to a fine of $10000 and imprisonment for 6 months and to disqualification from driving. Although that is referred to in one of the two warnings as ‘ the maximum penalty’, there is no reference in the notice to the terms or effect of s. 63(7) of the Ordinance, that in determining the penalty the court is specifically required to have regard to the facts of the alleged underlying traffic offence. Whether it might be found in a particular trial of someone for, say, a minor traffic violation who has identified himself in response to a notice drawn in those terms, that in the context of that case the degree of compulsion represented by the unqualified reference to a term of six months imprisonment is unduly oppressive, is a matter for the particular case. This affects, not the constitutionality of the statutory provisions, but the effect that the notice in its current form might have in a particular case.

148.  The magistrate from whom this appeal lies was much troubled by the absence of evidence before him justifying the legislative measure under attack. In so far as there is implicit in his reasons for verdict that restrictions upon freedoms require justification and that such justification is not to be taken from a bland say –so of those seeking to uphold the restrictions that there is a problem, he was, in my view, entirely correct. What evidence is required will, however, be a subject-specific matter and it would appear that he did not have before him the legislative history to which the Chief Judge has referred including the debates in the Legislative Council that ware part of that history.

149.  Had the imposition of a custodial sanction been born of a whim or of a mere estimate of what was necessary, there would be much force in the magistrate's suggestion that no justification had been advanced. But the history that we have discloses a debate in 1973 in which specific problems were particularized. The Financial Secretary pointed out that ‘ways of avoiding the operation of the [information-requiring provisions then in force] are widely known and utilised by traffic offenders in Hong Kong’ and that, furthermore, ‘it would appear that many traffic offenders have been encouraged by the low maximum fine .. to ignore [the requirements of a notice] where compliance would render the driver of the vehicle liable to a much higher penalty for a serious traffic offence.’ Similar problems were mentioned by the Attorney General in a debate in July 1980 and it is clear from that debate that issues of principle had indeed been considered by the Administration, including the criticism that the provisions then under discussion ‘would, in effect, require the courts to punish persons for offences which might not have been properly proved.’ Consideration had been given to a requirement that information in the hands of a vehicle owner be disclosed to the magistrate, rather than to the police but that was considered undesirable as inviting a confrontation between the court and the defendant, and reference was again made to the need to discourage people from refusing to give the name of the driver, when they knew it perfectly well, because the penalty was likely to be higher for the driving offence than for the failure to disclose the name. In 1984, the Secretary for Transport explained the rationale for the extension of the time within which a demand for disclosure could be made in the case of traffic accidents.

150.  It is not therefore as if the Administration and the legislature has provided no cause for the particular steps taken, and it is noteworthy that specific justification has been given for the introduction of the custodial sanction. The fact that the matter has been discussed and that reason has been provided does not of itself absolve the court of its responsibility to determine whether there is societal justification for the qualification to the right to silence and the privilege against self-incrimination and whether the measures taken are proportionate and liable of themselves to undermine the right to a fair trial. But it seems to me that, given the problems that have been encountered, the penalties available for the substantive traffic offences, the terms and objective of s. 63(7), the power of the tribunal to exclude the evidence if the circumstances in which it has been obtained in a particular case were oppressive so as to render its admission unsafe, the significantly limited nature of the questioning permitted, and the fact that the provisions are directed at a class of persons who have subscribed to a regulatory regime, the provisions do not, in my judgment, violate the protection intended to be afforded by art. 10 of the Bill of Rights.

Alternatives

151.  Both the respondent and the magistrate have relied on the suggested availability of alternatives which are said to be less intrusive than the statutory provisions with which we are concerned. This is a perfectly valid issue to pursue, since those who seek to justify restrictions upon fundamental rights are bound to show that the restrictions go no further than are necessary for the protection of legitimate interests although in this regard, the court, whilst not resiling from its task as ultimate arbiter of the issues of legal certainty, necessity and proportionality, will accord to the legislature a margin of appreciation whereby the court will not impose rigid and inflexible standards upon the legislature's attempts to resolve difficult problems: Attorney General of Hong Kong v Lee Kwong Kut [1993] AC 951, 975.

152.  The respondent has contended that developed countries elsewhere have managed to control traffic and deter dangerous driving without resorting to measures of the kind with which this case is concerned.  He took us, for instance, to the example of Maryland, USA, where, if an owner fails to identify the driver, the owner is made responsible for the traffic violation and if he fails to pay the fine he is precluded from renewing the vehicle's registration until such time as the fine is paid. This is one, albeit not the only, suggested alternative.

153.  Much the same argument was raised, but to no ultimate effect adverse to the legitimacy of the particular provision, by those acting for the applicants in O’Halloran: see para. 41. The point was specifically addressed in Brown v Stott. Lord Steyn, at p. 710B-D, remarked that:

“The real question is whether the legislative remedy in fact adopted is necessary and proportionate to the aims sought to be achieved.  The legislature could have decided to do no more than to exhort the police and prosecuting authorities to redouble their efforts.  It may, however, be that such a policy would have been regarded as inadequate.  Secondly, the legislature could have introduced a reverse burden of proof clause which placed a burden on the registered owner to prove that he was not the driver of the vehicle at a given time when it is alleged that an offence was committed.  Thirdly, and this was the course actually adopted, there was the possibility of requiring information about the identity of the driver to be revealed by the registered owner and others.  As between the second and third techniques it may be said that the latter involves the securing of an admission of a constituent element of the offence.  On the other hand, such an admission, if wrongly made, is not conclusive.  And it must be measured against the alternative of a reverse burden clause which could without further investigation of the identity of the driver lead to a prosecution.  In their impact on the citizen the two techniques are not widely different.  And it is rightly conceded that a properly drafted reverse burden of proof provision would have been lawful.”

He added at p. 711D-E that:

“It really then boils down to the question whether in adopting the procedure enshrined in section 172(2), rather than a reverse burden technique, it took more drastic action than was justified.  While this is ultimately a question for the court, it is not unreasonable to regard both techniques as permissible in the field of the driving of vehicles.  After all, the subject invites special regulation; objectively the interference is narrowly circumscribed; and it is qualitatively not very different from requiring, for example, a breath specimen from a driver.”

154.  The argument was advanced again in Charlebois v Director of Public Prosecutions [2003] EWHC 54 Admin, where the traffic violations in issue were exceeding the speed limit and failing to stop at a red light.  The owner or keeper of the vehicle refused to provide the information pursuant to notices issued under s. 172(2) of the Road Traffic Act 1988 and he contended that the creation of the offence of failing to comply with a requirement to provide the information was a disproportionate response to the problem of maintaining road safety; and that the proper approach to cases of this kind was to proceed against the keeper. This suggested route was said by Hooper J, as he then was, to be one that would ‘cause considerable practical difficulties if it was intended to endorse the keeper's licence or disqualify the keeper from driving.’ He added, at paras. 12 and 13 that in his judgment, ‘ ... the use of section 172((2)...for alleged offences of speeding and going through a red light is a proportionate legislative response to the problem of maintaining road safety,’ and he did not agree with the submission made on behalf of the appellant that such offences were not serious offences and were only of a regulatory nature. This is a sentiment echoed in Mawdesley v Chief Constable of Cheshire [2004] 1 WLR 1035 at p. 1047, para. 41:

“Speeding may present the gravest danger to the public.  It cannot sensibly be argued that it is disproportionate to admit an incriminating answer to a section 172 request in the speeding case, but not in a drink/driving case.”

155.  It seems to me that the alternative of a reverse onus provision, whilst possibly acceptable as an alternative from a constitutional viewpoint, nonetheless also makes an inroad into established rights, and does not, merely because it is an alternative, render the route chosen to be impermissible given, in particular, the societal imperatives behind the route chosen and the characteristics of it to which I have referred at para. 150 above.

Miscellaneous points

156.  In his reasons for verdict, the magistrate said that the figures which had been provided to him - which were out of date - showed that in the year to which the figures related ‘ only’ 500 prosecutions were launched under the section and he concluded from that that; ‘if only a few thousand notices have been issued and served for example, that would seem to indicate that there is, in reality, no need for the section.’  I fail, with respect, to follow the logic of that statement. The fact that a few thousand notices had been issued shows that in the year in question there were a few thousand cases – no small number - in which the law enforcement authorities would, absent a legislative scheme along the lines of that under scrutiny, have been unable to commence a meaningful investigation into an alleged traffic violation, perhaps some serious.

157.  The magistrate concluded that the minority opinion of Judge Pavlovschi in O’Halloran ‘deals ruthlessly with the shallowness and lack of logic of the opinion of the majority’ and ‘ drove [a] bulldozer through the flimsy shanty dwelling that the majority had painfully constructed from the straw case of Jalloh.. .’  Given the status of that Court, the experienced and respected composition of the majority and the fact that the opinion which he labels as shallow followed that of the Privy Council in Brown v Stott, that characterization is bold.

158.  The magistrate presumably endorses that judge’s view expressed in O’Halloran that where there are so many breaches of road traffic prohibitions ‘it clearly means that something is wrong with the prohibition.  It means that the prohibition does not reflect a pressing social need, given that so many people choose to breach it even under the threat of criminal prosecution.  And if this is the case, maybe the time has come to review speed limits and to set limits that would more correctly reflect people's needs. ... it is difficult for me to accept the argument that hundreds of thousands of speeding motorists are wrong and only the government is right. ... I think that in such situations any Contracting State to the Convention has just two options - either to prosecute offenders in full compliance with the requirements of Article 6 or, if that is not possible owing to the huge number of offences committed by the population, to decriminalise an act which is so widely committed that it can be considered as normal rather than exceptional.  In my view there should be no "third way" in the field of criminal liability.’ That is not a view that I am prepared to endorse. It is also not one that is likely to commend itself to the victims of traffic accidents, and its characterization by the magistrate as a judgment that is founded upon ‘logical and persuasive bricks’ is surprising.

159.  The ‘slippery slope’ fear expressed by the respondent merits respect yet must be viewed against the fact that the right of silence and the privilege against self-incrimination have been subject to numerous statutory exceptions, so that the exceptions with which we are concerned in this case do not provide for something new; that the qualification of the rights at stake in this case are limited; that there are established hurdles which have to be surmounted before qualification to such rights in any context receive sanction of the court; and that  parameters are carefully examined on a subject-specific basis. I do not see that the conclusion to which we have arrived in this case departs from established principle.

160.  I would myself prefer, as a general rule when addressing derogations from rights, to avoid an approach or test articulated in terms of a ‘fair balance’ between ‘.. on the one hand, the demands and interests of the general community and, on the other, the fundamental rights of the individual.’  (see paras. 37, 39 and 40 above). A test expressed in those terms runs the danger, in my opinion, of undermining the primacy of fundamental freedoms which, after all, reflect the interests of the general community. In cases where fundamental freedoms are absolute, no derogation is permitted, so no question of ‘balance’ can arise. Where the freedom is not absolute, the starting point is always the freedom and any derogation from it must, both as to the need for derogation and its extent, be fully justified, albeit on societal grounds, by he who seeks to derogate.

161.  Although this does not affect my agreement with the Chief Judge’s conclusions as to the disposal of this appeal, I feel I ought to add that I do not myself read the magistrate as having proceeded in his analysis on the premise that the right to silence and the privilege against self-incrimination were absolute (see paras. 13(2) and 58 above).

Jurisdiction

162.  I do not accept the appellant’s argument that it was not open to the respondent at the trial for the alleged offence contrary to s. 63 to challenge the validity of the s. 63 notice. If taken together with a similar argument advanced by the Secretary for Justice in the recent appeal in Secretary for Justice v Ocean Technology Limited & others, HCMA 173 of 2008, 12 December 2008, unreported, this heralds a trend of submissions from that quarter, I would discourage the trend and emphasise the principles summarised by Levison J in Bunney v Burns Anderson Plc [2007] EWCH 1240 at para. 47 that :

“...

(iv)  Where a defendant to a claim wishes to challenge a public law decision as part of his defence, the court does not have any discretion to refuse to allow him to do so, unless either the raising of the defence is an abuse of process or it has no reasonable prospect of success;

(v)  It will have no reasonable prospect of success if, as a matter of construction of the statute under which the impugned act was done, the legislation forbids any challenge (or the particular type of challenge that the defendant wishes to make) to be made otherwise than by judicial review;

(vi)  In considering statutory schemes which enable decisions to be made under them there is a strong presumption, based on the importance of the rule of law, against concluding that the only permissible means of challenge is by judicial review.”

163.  The decision in Ocean Technology is not to be read as precluding constitutional challenges to offence-creating provisions as part of the defence to a charge alleging the commission of that offence. Indeed, the decision in Ocean Technology did just that: it addressed the constitutionality of the offence-creating provision but in so doing concluded that upon a proper construction of the Ordinance in question, the validity of the licensing scheme was not a constituent part of that offence. In this case, by contrast, it could hardly be suggested that the validity of the notice under s. 63 is not a constituent element of the offence.

The nature of the questions posed

164.  I wish to add a comment about the form of the questions framed for the Case Stated. Questions for a Case Stated are questions of law for the determination of the appellate court. They should be drawn as succinct and precise questions. They should be stated neutrally as clear questions and not drawn argumentatively. Some of the questions posed by the present Case Stated did not follow the appropriate form. For example, there is in a Case Stated no room for the lengthy prelude to the first question posed which seeks to support the conclusion which the magistrate reached by reference to statements said to have been made ‘ in robust terms’ in a cited case. The reasoning for the magistrate’s decision will be apparent enough from the rest of the Case without a refrain of that reasoning in the questions. If argument becomes acceptable in the context of a question, then it would require the argument on both sides; the question is not the appropriate place for this.

The questions

165.  In relation to the questions posed by the Case Stated, I respectfully agree with the answers to them provided by the Chief Judge.  In relation to Question 5, art. 11(2)(g) was not engaged but, for the purpose of this appeal, this court has instead examined the question by addressing the statutory provision in the light of art. 10.  It is to be noted that Question 5 refers to s. 63 ‘and its application’.  My opinion is that the provisions of s. 63 do not infringe art. 10, but that it is open to a court in a particular case to conclude that the circumstances in which an answer was obtained to a s. 63 notice were oppressive and ought for that reason to be excluded (see paras. 146 and 147 above).

Conclusion

166.  For these reasons, I too would allow the appeal and make the orders proposed by the Chief Judge.

Hon Ma CJHC :

167.  Accordingly, the appeal is unanimously allowed.  We also order that the order of the Magistrate dismissing the charge against the Respondent be set aside and that the case be remitted to another Magistrate for trial de novo in accordance with the law as stated above.