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Secretary For Justice v Richard Ethan Latker

Judgment Cited authorities 13 Cited in Precedent Map Related
Vincent
Judgment Date29 January 2009
Year2009
Judgement NumberHCMA521/2008
Subject MatterMagistracy Appeal
CourtHigh Court (Hong Kong)
HCMA000521/2008 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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BETWEEN

SECRETARY FOR JUSTICE Appellant
and
RICHARD ETHAN LATKER Respondent

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Before: Hon Ma CJHC, Stuart-Moore VP and Stock JA in Court

Date of Hearing: 26 September 2008

Date of Handing Down Judgment: 29 January 2009

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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...

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