HKSAR v. LAW SING HONG

[English Translation – 英譯本]

HCMA 438/2013

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO.438 OF 2013

(ON APPEAL FROM TMS 1981 OF 2013)

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J U D G M E N T

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1.  The Appellant was charged with one count of failing to furnish information relating to the identity of the driver, contrary to section 63(1)(a) and section 63(6)(a) of the Road Traffic Ordinance[1] (hereinafter referred to as “the Ordinance”). He appeared before the Tuen Mun Magistrates’ Courts and pleaded not guilty. After trial, the Special Magistrate (hereinafter referred to as “the Magistrate”) found the Appellant guilty and fined him $3,000. The Appellant is aggrieved with both the conviction and sentence, against which he appeals.

Summary of Facts

2.  The prosecution case can be summarized as follows:

(1) A private car displaying registration mark KM5732 was being driven on a road without complying with the traffic light signals.

(2) Through a video recording system, the police discovered the incident.  Based on the information provided by the Transport Department, the police sent out a Notice Requiring Identification of Driver (hereinafter referred to as “the notice”)[2] by post on 24 September 2012 to the registered owner of the vehicle (i.e. the Appellant).

(3) No reply was received from the Appellant. On 25 October 2012, the police sent a final reminder of the Notice Requiring Identification of Driver to the Appellant demanding him to send the notice in reply to the police officer [PC49900 LO--] [3] specified in the form within 7 days.

(4) By 9 November 2012, no reply to the notice was received. PW2 then telephoned the Appellant.  The latter informed him that he had already sent the notice to the police by email.

(5) On 28 November 2012, the officer in charge of the case gave a copy of the Appellant’s email to PW2.

(6) On 4 January 2012 [sic], the Appellant made a phone call to the police station. PW2 answered the call and explained to the Appellant that email would not be accepted since there was no authentic signature on it.

(7) Up to 25 January 2013, PW2 still had not received the notice in reply from the Appellant by post.  An application was therefore made for the issue of a summons against the Appellant.

Defence Case

3.  The Appellant exercised his right and elected not to give evidence. Nor did he call any witness.  He relied on the existing facts of the case in his defence.

The Magistrate’s Findings

4.  The Magistrate pointed out that there was no substantial dispute on the facts of this case.  What was left for the Magistrate to decide was, by and large, whether the notice of reply sent out by the Appellant by way of email complied with the legal requirements.

5.  The Magistrate concluded that such act failed to meet the legal requirements.  Accordingly, the Appellant was convicted.

Grounds of Appeal

6.  At the appeal hearing, the Appellant was unrepresented[4].  His grounds of appeal can be summarized as follows:

(1) The notice was not signed by any person authorized by the police.  Its legal effect, therefore, was in doubt.

(2) At trial, the Court accepted only the oral testimonies given by the witnesses in court, leaving out their witness statements.  In assessing the credibility of such testimonies, the Court failed to address the discrepancies between the oral testimonies and the witness statements.  The Appellant received these statements just before the start of the trial and could only afford time to glance through them.

(3) Upon receiving the notice, the Appellant had duly filled in the form and sent it as an attachment to the police by email on 27 September (Exhibit P5).

(4) It was unjust that the trial magistrate unreasonably linked up the provision governing instruments formulated by the government, i.e. section 63(4) of the Ordinance, with the charge.

(5) The Magistrate reckoned that by sending the reply in email, it was difficult to prove the authenticity of the sender’s signature.  Nonetheless, there was no need for the police to put down any signature when issuing notice.  This was unfair.

(6) The Magistrate was of the view that the email in reply failed to specify the police officer to whom it was addressed, which fell short of meeting the requirements.  The finding was in itself erroneous.

(7) There was a column in the notice asking for telephone number.  This was in disregard of the declarant’s personal privacy.

(8) It was unreasonable that prior to the imposition of the sentence, the Magistrate failed to direct the Appellant to make any submission in mitigation nor did he give the Appellant sufficient time to prepare for that.

Discussion

The first ground of appeal

7.  I agree that it is a desirable approach for the issuing officer of the document to sign on the document.  However, unless other irregularities subsist, the legal effect of the notice will not be affected despite the lack of signature.

The second ground of appeal

8.  Generally speaking, what the court has to consider is the evidence given by witnesses in court and not their witness statements. Needless to say, when there are discrepancies between the evidence in court and that of the witness statement, the court should take them into account when assessing a witness’s credibility.

9.  According to the Appellant, the statements of the witnesses were given to him just before the start of the trial.  Whether there is anything wrong with this approach is a matter depending on the circumstances in each case.  In the present case, it appeared that the Magistrate had given the Appellant time to go through the documents.  There were no indications of hurrying the Appellant in an undue manner.  The Appellant failed to provide sufficient information or justification to enable me to be satisfied that any injustice was caused.

The third to sixth grounds of appeal

10.  Since the issues involved in these four grounds are inter-related, they can be dealt with together.

11.  In the present case, the following material facts were undisputed:

(1) The police issued the notice to the Appellant on 24 September 2012.

(2) On 27 September, the Appellant sent an email to the police using the general enquiries email address listed on the Police Force’s website.  The Appellant attached the scanned version of the duly completed notice to the email.  He also queried the necessity of providing the telephone number.

(3) On 11 October, a police inspector surnamed CHAN replied the Appellant by email in relation to his query on telephone number.  The email did not touch on any other matters relating to the notice.

(4) On 25 October, the police sent a final reminder to the Appellant.

(5) On 22 November, the Appellant sent an email to the inspector surnamed CHAN.  The contents were essentially saying that a person who claimed himself as PC49900 called telling him the police had not received his reply.  The Appellant indicated that he would send the notice again as an attachment.

(6) On 28 November, PC49900 received from the officer in charge of the case a copy of the Appellant’s email.

12.  As can be seen from the above facts, it was not a case where the Appellant failed to reply to the notice.  The question is whether what he did satisfied the legal requirements.

13.  First and foremost, I must underline here what I have to examine is not whether the Appellant had complied with the requirements of the notice or not, it is whether what he did satisfied the legal requirements or not.

14.  The relevant legal provisions are set out in section 63 of the Ordinance.

15.  The Ordinance empowers the police, subsequent to the occurrence of a specified traffic accident, to issue a notice to the registered owner of the vehicle.  Section 63(4) of the Ordinance reads, a notice

“shall [5] 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.”

16.  From the manner the provision is expressed, the literal meaning of the words seems to confine the way the authority deals with the matter.  Nonetheless, the legislative intent is apparent. By defining the contents of the notice, it imposes requirements on the recipient.

17.  What are required can only be the matters set out in section 63(4) of the Ordinance.

18.  These matters are:

(1) Upon receiving the notice, the person shall furnish, within 21 days after the date of the notice, to a police officer specified therein;

(2) A written statement, in such form as may be specified in the notice;

(3) Providing the following information of the driver of the vehicle involved:

(i) Name

(ii) Address

(iii) Driving licence number.

(4) The recipient is to sign on the said statement.

19.  The Appellant complained that it was unjust for the Magistrate to link the provision up with the charge. Such complaint is obviously untenable.  The fourth ground of appeal fails.

20.  The fifth ground of appeal was a complaint about the requirement that the one who replied to the notice had to sign. It fails also as it is clear from the Ordinance that the police shall require the person who replied to sign.

21.  Regarding the sixth ground of appeal, I share the view of the Magistrate.  Under section 63(4) of the Ordinance, the police have the power to require the person to return the notice to the police officer who signed there.

22.  The Appellant’s email was indeed not addressed to that particular police officer. As a result, it can hardly be said that the legal requirements were met.

23.  Notwithstanding that, there was a special element in the facts of this case.  The requirement in the notice reads: “to identify the driver…… by completing items…… to the undersigned [6] police officer.”

24.  The police officer did not sign on the notice (Defence Exhibit D2) served on the Appellant.

25.  The legality of the notice, in my view, would not be affected if it was not signed.  However under circumstances where the police officer failed to sign, then all the blame could not be attributed to the recipient just because he sent the reply to another police officer.  It would be unjust to accuse him of breaching the requirement solely based on this.

26.  On the other hand, does a reply in email format satisfy the legal requirements?

27.  I think not. Section 63(4) of the Ordinance provides that the police shall require the reply to be a written statement in a format as specified in the notice.

28.  The format specified was to send the completed form by post using the enclosed envelope and affixing the postage stamp thereon.  Even if some people were of the opinion that such approach was not in tune with the times, the police did have the power to set out such requirements.  A reply falling short of that meant it failed to satisfy the legal requirements.

29.  It was submitted by Ms Jennifer FOK, SPP(Acting), for the Respondent that section 64 of the Ordinance was relevant to the consideration of the present issue.  Looking at section 64, obviously the legislative intent was that a signed reply to the notice might be adduced as evidence in court.  She pointed out that it was difficult to authenticate a signature on an electronic scanned copy with modern-day technology and that it would be difficult to tell whether it had been altered.

30.  I agree with this point of view.  The legislation is intended to require the registered owner, when replying to the notice, to sign on the form.  The form, in the format specified by the police, shall be mailed to the specified police officer.

31.  Regarding the seventh ground of appeal, there was a column in the notice demanding the person to whom it was addressed to fill in the telephone number.  The provision, however, did not empower the police to ask for this piece of information.  Nevertheless, it was also indicated in the notice that it was not mandatory.  I shall leave it to the authority to consider whether the manner in which it is expressed can be more precise or not.

32.  For the above reasons, I dismiss the appeal and affirm the conviction.

Appeal against sentence

33.  To support his appeal against sentence, the Appellant advanced the following grounds:

(1) The Magistrate did not give him the opportunity to make mitigation submission.

(2) The sentence was excessive.

34.  I have perused the transcript.  The Magistrate was aware of the Appellant’s financial situation.  However, he did not make it clear to the Appellant of his right to make submission in mitigation.

35.  I gave the Appellant the opportunity to make his mitigation submission.  The gist of his submission was: he did not have an income and relied on several thousand dollars his daughter gave him each month. Her contribution was not a regular one and he did not receive any recently.

36.  The Magistrate imposed a fine of $3000 on the Appellant. She [sic] took into account:

- The Appellant’s financial situation. (He did not have an income and relied on the support of his daughter.)

- He had a clear record.

- Not for the sake of evading the liability of jumping red lights.

- His grounds of defence could be considered as issues concerning the interpretation of the relevant legal provisions and they were not frivolous.

37.  The matters which the Magistrate considered were matters she should consider.  However, it appeared she had failed to place sufficient weight on these matters when deciding the amount of the fine.  In my judgment, the sentence can be adjusted downward considering the special circumstances of the case.

38.  The fine can be varied to $800 considering the financial situation of the Appellant.

39.  The appeal against sentence is allowed, and the amount of the fine is ordered to be varied to $800.

40.  A fine of this amount is imposed purely because of the special circumstances of the case.  The relevant legal provisions and rules are now well established and similar offenders cannot expect the court to deal with them so leniently in future.