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Hksar v Ho Loy

Judgment Cited authorities 9 Cited in Precedent Map Related
Vincent
Judgment Date23 March 2016
Subject MatterFinal Appeal (Criminal)
Judgement NumberFACC7/2015
CourtCourt of Final Appeal (Hong Kong)
FACC7/2015 HKSAR v. HO LOY

FACC No. 7 of 2015

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 7 OF 2015 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 280 OF 2014)

____________________

BETWEEN
HKSAR Appellant
and
HO LOY (何來) Respondent

____________________

Before: Chief Justice Ma, Mr Justice Ribeiro PJ,Mr Justice Tang PJ, Mr Justice Fok PJ and Mr Justice Spigelman NPJ
Date of Hearing and Judgment: 4 March 2016
Date of Reasons for Judgment: 23 March 2016

___________________________

REASONS FOR JUDGMENT

___________________________

Mr Justice Fok PJ:

1. This appeal arises out of the prosecution of the respondent cyclist for the offence of failing to comply with a requirement indicated by a traffic sign. Her conviction by the magistrate[1] was quashed on intermediate appeal to the Court of First Instance.[2] The Appeal Committee[3] granted the prosecution leave to appeal to this court on the basis that the following points of law of great and general importance were involved in the decision of the Court of First Instance, namely:

“In the context of the regulatory regime under the Road Traffic Ordinance Cap. 374 and its regulations governing road traffic offences and, in particular, in relation to the offence of failing to comply with a requirement indicated by a traffic sign contrary to Regulations 50(2) and 61(2) of the Road Traffic (Traffic Control) Regulations Cap. 374G (“the Regulations”):-

(1) How does the principle of legal certainty operate and what is the extent of its requirements?

(2) Whether or not misunderstanding or ignorance of the legal requirement as indicated by a traffic sign - when such requirement is expressly set out in the Regulations and the Road Users’ Code - can give rise to a reasonable excuse under Regulation 61(2) of the Regulations?”

2. As will be seen, it was not sought to be argued that the offence infringes the principle of legal certainty. Rather the focus of the appeal was instead on the nature and scope of the offence of failing to comply with the requirements of a traffic sign and the limits of the statutory defence of reasonable excuse. Specifically, does the meaning of a traffic sign depend on the cyclist’s subjective interpretation and, if not, does her mistaken belief in its meaning constitute a reasonable excuse for failure to comply with the requirement indicated by it?

3. At the conclusion of the hearing, the court allowed the appeal and made the orders set out in Section G below, indicating that our reasons for doing so would be handed down in due course. These are our reasons.

A. Background

A.1 The charge, location of the alleged offence and the applicable traffic signs

4. The charge was that, on 13 May 2013 at 10.12 am at Yu Tung Road Cycling Track near lamp post AC 1509, the respondent being a person riding a bicycle on a road did, without reasonable excuse, fail to comply with the requirement indicated by a traffic sign of the type shown in Figure No. 155 in Schedule 1 of the Regulations. Figure No. 155 (addressed in greater detail below) is a cycling restriction sign and indicates that cycling is prohibited beyond the sign and that cyclists must dismount and push their bicycle if they wish to proceed beyond the point of the sign.

5. Yu Tung Road in Lantau runs alongside the rear of the Lantau District Police Headquarters and Lantau North Police Station. Between the road and the police station there is a cycleway. The cycleway is intersected by a driveway which leads to the rear of the police station. At the time of the alleged offence, facing a cyclist in each direction on the cycleway, just before the point where the cycleway intersects the driveway, there is a road sign of the Figure No. 155 type and a road marking on the cycleway of the Figure No. 619 type with the word “End” in English and the words “終止” in Chinese. On the other side of the driveway, where the cycleway resumes, there is a road sign of the Figure No. 156 type and another road marking of the Figure No. 619 type.[4]

6. The forms, dimensions, requirements and information of the types of traffic signs (Figure Nos. 155 and 156) and road markings (Figure No. 619) referred to above are depicted in Annex I to this judgment and will be addressed further below. The actual traffic signs in the form of Figure Nos. 155 and 156 are shown in Annex II to this judgment.

7. The alleged offence took place beyond the Figure No. 155 sign which is next to lamp post AC 1509 which is situated alongside the cycleway just before the intersecting driveway. The respondent was stopped by a police sergeant (PW1) when she failed to dismount from her bicycle beyond that sign and continued to ride her bicycle into the driveway and before she had reached the continuation of the cycleway and the Figure No. 156 sign.

A.2 The respondent’s conviction by the magistrate

8. The magistrate accepted PW1’s evidence that the traffic sign in question was not covered by leaves or otherwise obscured from sight at the time. The respondent admitted that she failed to dismount from her bicycle when she reached the traffic sign. She accepted in cross-examination that the traffic sign was visible and that she was aware that it was always there. It was her defence that she was honestly and reasonably confused by the sign and thought that it meant cycling was permitted.

9. The magistrate did not accept that the respondent had a reasonable excuse for failing to comply with the requirement to dismount from her bicycle. He was not satisfied that a reasonable person would be honestly and reasonably confused by the traffic sign.[5] He did not find it reasonable for the respondent to make an assumption from the surrounding circumstances of the location as to what the sign meant, rather than by ascertaining its clear meaning from the Road Users’ Code (“the Code”).[6] The magistrate went further and, in effect, disbelieved her defence that she was honestly and reasonably confused by the traffic sign, finding instead that she “willfully neglected” the sign.[7]

10. Accordingly, the magistrate was not satisfied that the evidence adduced by the respondent could constitute evidence capable of raising a reasonable doubt that she acted in the honest and reasonable belief that the circumstances of her conduct were such that, if true, liability would not attach.[8] He therefore found that the prosecution had proved beyond reasonable doubt that the respondent, without reasonable excuse, failed to comply with the requirement indicated by the traffic sign in question and so convicted the respondent.[9] By way of sentence, the magistrate imposed a fine of $500.[10]

A.3 The basis on which the conviction was quashed by the judge

11. The judge approached the case differently to the magistrate. He began by identifying the two principal issues in the appeal before him as being: (1) whether the traffic sign in question (i.e. the Figure No. 155 sign) was ambiguous, unclear or confusing; and (2) whether a road user, including the respondent, was obliged in law to know the meaning of traffic signs.[11]

12. Before dealing with the first issue, in his review of the evidence at trial, the judge referred to a defence application, which the magistrate refused, to call an expert witness (Mr Steven Coward) on the issue of whether the design of the sign was ambiguous, unclear or confusing.[12] He also referred to evidence from which he concluded that it was acknowledged by both PW1 and the respondent that the sign was not generally understood by members of public.[13] Whilst upholding the magistrate’s decision to refuse to admit evidence that other road users were confused by the Figure No. 155 sign, the judge considered that part of the expert evidence of Mr Coward on the regulation of cyclists in Hong Kong and abroad would have been of assistance to the court.[14]

13. The judge then considered a complaint by the respondent that certain material,[15] in which it was noted that some traffic signs alongside cycle tracks might be quite confusing and might convey misleading information to cyclists and that traffic signs of the Figure Nos. 155 and 156 types were commonly misinterpreted as meaning the opposite of what they are intended to convey, was not disclosed by the prosecution. The judge held that the failure to disclose the Atkins China Report was a material irregularity since it was relevant material that might well have provided a train of inquiry to admissible evidence. He also held that, whilst not published at the time of trial, it might have been that there was information in the Audit Commission Report available in relation to its findings about the sign that could and should have been disclosed. He concluded that there had been material non-disclosure and that on this ground alone the conviction should be quashed.[16]

14. In light of the non-disclosed materials, the judge considered that Mr Coward’s opinions on cycling regulation in Hong Kong and abroad to be of assistance to the court and admitted his expert opinion on those specific matters into evidence on the appeal.[17]

15. The judge then returned to address the first principal issue he had identified, namely whether traffic signs of the Figure Nos. 155 and 156 types were confusing. He proceeded to consider what he thought the signs indicated to him and considered that road users might be in a state of confusion over the signs. He held, applying MacLeod v Hamilton[18] and R (Oxfordshire County Council) v Bus Lane Adjudicator,[19] that traffic signs should convey a clear and simple message in order to provide adequate information or notice to a road user to enable him appropriately to regulate his conduct. [20] He therefore concluded:

“55. I find Figures 155 and 156 to be ambiguous, unclear...

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