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HKSAR v Wisdom Kingdom Ltd

3 June 2014

Court of First Instance

CFI

Magistracy Appeal No 131 of 2014

HCMA 131/2014

Citations: [2014] HKEC 913 English Judgment

Presiding Judges: Deputy Judge A Wong

Phrases: Criminal law and procedure - road traffic offences -

causing/permitting motor vehicle to stand on road in such
circumstances as to be likely to cause unnecessary
obstruction of road
Criminal sentencing - road traffic offences - fixed penalty
offence - in absence of finding that defendant put forward
frivolous or vexatious defence, whether imposition of
additional penalty justified - Fixed Penalty (Traffic
Contraventions) Ordinance (Cap.237) s.20(3)

Counsel in the Case: Mr IP Wai-kee, Cliff, PP of Department of Justice, for the

respondentMr Daniel Hui, instructed by Henry Wan & Yeung
for the appellant

Cases cited in the HKSAR v Smart Oil & Chemical Ltd (unrep., HCMA 498/2005)
judgment:
Van Hing Transportation Co v Attorney General (unrep., CACV
9/1980)

HKSAR v Ball John Edward (unrep., HCMA 175/2005, [2005] HKEC

653)

Hirst and Agu v Chief Constable of West Yorkshire (QBD) (1987) 85

Cr App R 143

R v Crawley [1994] 1 HKCLR 156

R v William Alan Terence Crawley [1994] 1 HKCLR 156

Judgment:
Deputy Judge A Wong
1. The Appellant is a company which was at the material time the registered owner of a motor vehicle
(hereinafter called the vehicle). It was summonsed for contravention of the provision of section 4 of
the Fixed Penalty (Traffic Contraventions) Ordinance, Cap. 237 (hereinafter called the Ordinance).
2. In the Eastern Magistrates' Court the Appellant did not admit the contravention. After trial, the
Deputy Special Magistrate (hereinafter called the Magistrate) found the contravention proved and
imposed on the Appellant a total fine of $640. Further, the Appellant was ordered to pay costs of
$875.
3. The Appellant appeals against both conviction and sentence.
4. The original trial was conducted in Chinese. Counsel representing the Appellant, Mr Daniel Hui,
asked to present his appeal in English, for the reason that the case involved primarily legal argument,
with little dispute on the facts. There being no objection from the Respondent, I acceded to the
request and indicated that in the circumstances I will prepare the judgment in English. Both parties
agreed.
Facts of the Case
5. The vehicle in question was a private car. A police officer found that it was parked on the left lane
of Gilman Street right in front of the white line before the traffic light. Two to three cars parked behind
the Appellant's vehicle. The vehicle stayed in the position despite the traffic light, as observed by the
officer, changed from green to red, and then to green again. At the driver seat of the vehicle was a
man not of Chinese origin. He was reading newspaper. During the observation which lasted for about
2 minutes, other parked vehicles moved away. The Appellant's vehicle stayed. The officer
approached the vehicle and knocked lightly on the window next to the driver seat. There was no
response. The officer asked the driver what he was doing and explained to him about his
contravention of the law. When the officer was issuing a fixed penalty ticket, the driver responded by
saying in English, "You are not fair, why you just give me a ticket and other cars go away, why?"
6. A Notice of payment of fixed penalty was issued to the registered owner of the vehicle. There was
no payment.
7. As the Appellant was the registered owner of the vehicle, it was summonsed for the contravention.
Grounds of Appeal (Conviction)
8. Mr Hui, for the Appellant, put forward the following grounds of appeal :

(1)
The conviction is unsafe or unsatisfactory in particular as :

(a)
There is no evidence in relation to volume of traffic on the 2nd lane;

(b)
The Appellant's vehicle was the leading parked vehicle, several vehicles parked behind it;

(c)
The relevant part of the road was not sign-posted as a "No Waiting" area;

(d)
There was a driver inside the vehicle.

(2)
In deciding whether the element of "likely to cause an unnecessary obstruction", the
Magistrate failed to properly take into account the following matters :
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(a)
The ability and likelihood of the Appellant's vehicle to move;

(b)
Lack of evidence regarding the volume of traffic on the 2nd lane;

(c)
The absence of other vehicles being driven along the 1st lane;

(d)
All the surrounding circumstances.

(3)
The Magistrate erred in failing to apply properly the relevant principles elucidated in
R v Crawley [1994] 1 HKCLR 156
and
HKSAR v Ball HCMA 175/2005
.

(4)
The Magistrate erred in failing to consider or consider properly the meaning of
"unnecessary obstruction".

(5)
The Magistrate misdirected himself on the meaning of a green traffic light and wrongly held
that the Appellant's vehicle was required to go forward by such a green light.

Discussion and Consideration

9. The grounds are very much inter-related and I therefore do not propose to go through the grounds
one by one. I will focus on the discussion and consideration of the main issue in the case : whether it
has been proved to the appropriate standard that the existence of the Appellant's vehicle was likely to
cause an unnecessary obstruction.
10. In this regard, Mr Hui expressly said that if the Court finds the existence of the vehicle was likely
to cause an obstruction, whether such obstruction was unnecessary is not in issue.
11. I will begin by setting out the following matters which concerns this offence but are not contentious
in this appeal.
12. Firstly, despite obviously the vehicle was not driven at the time of the offence by the Appellant,
which is a company, it is provided in section 14 of the Ordinance that :

(1)
"Subject to section 3(2), the person liable for the fixed penalty under section 13 shall
be the registered owner for the time being of the motor vehicle when the contravention
is committed.

(2)
In any proceedings for recovery of the fixed penalty it shall be no defence-
 that the contravention was committed without the knowledge or consent of the
registered owner; or

(b)
that at the time the contravention was committed the motor vehicle was driven by or
was in charge of a person other than the registered owner:

Provided that it shall be a good defence for the registered owner to prove that, at the
time the contravention was committed, the motor vehicle was taken and driven away
without his consent by a person other than a driver employed by him or was stolen."

13. It was indeed pursuant to this section that the Appellant was held liable to pay the fixed penalty.
14. Secondly, there is another limb of the offence : likely to cause danger to other persons using the
road. This limb was not relied upon by the prosecution in this case.
15. Back to the main issue, the Magistrate said in his Statement of Findings that one of the elements
of offence is causing of obstruction by the vehicle1. Mr Hui submitted that the Magistrate erred in his
understanding of the elements to be proved to substantiate the contravention as it is not necessary to
prove that the vehicle has actually caused obstruction. I entirely agree. Section 4 of the Ordinance
provides :
"No person shall cause or permit any motor vehicle to stand on a road in such a position or in
such condition or in such circumstances as to be likely to cause any unnecessary obstruction of
such road or danger to other persons using the road."
Be that as it may, the Magistrate has made clear that the basis of his conclusion was that the parking
of the vehicle there was likely to cause obstruction.2
16. In reaching his conclusion, the Magistrate had had regard to the following matters :

(1)
The observation of the police officer which lasted about 2 - 3 minutes;

(2)
The traffic light had turned green on two occasions during the observation;

(3)
The Appellant's vehicle did not move during the observation;

(4)
The position of the vehicle and that there were other vehicles behind it;

(5)
What happened between the officer and the man in the driver seat;

(6)
Generally speaking, traffic flow in that section of the road was not light and there were
lorries loading and unloading goods;

(7)
There was no "no waiting" sign;
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There was no yellow line painted on the road;

(9)
Most vehicles parked also on the left lane have drivers in them but none of them blew horn
or by any means requested the Appellant's vehicle to move;

(10)
Other vehicles moved away during the observation of the officer.

17. The Magistrate also made the following observations :

(1)
There were only two lanes in that section of the road and the vehicle had occupied the left
lane;

(2)
The vehicle was parked in front of the traffic light, within 1 meter from the white line;

(3)
All vehicles should move and not stop.

18. In presenting his grounds of appeal, Mr Hui outlined the circumstances at the scene. What he
said, as follows, were not in dispute. The relevant part of Gilman Street was one-way, leading to Des
Voeux Road Central. It has two lanes. All vehicles have to turn left when they reach the junction with
Des Voeux Road Central. There was a pedestrian crossing at the junction. The traffic light and the
white line situated at the far end of the pedestrian crossing from the junction3.
19. Mr Hui then brought to the Court's attention the following matters mentioned by the Magistrate in
his Statement of Findings. He made criticism when he went along and submitted that the Magistrate
erred in saying what he did in the Statement of Findings. I will set out these matters below and add
my observation :

(1)
In paragraph 23(iii), the Magistrate said vehicles must move forward when the green traffic
light is on.

Mr Hui criticized that this view is not consistent with the Road Users' Code. In the 2000
edition, the Code states the meaning of a green traffic light is "you may move across the
junction or crossing provided that it is safe to do so."4

I accept that the Magistrate had gone too far in this regard. However, the evidence that the
traffic light has turned green two times is a matter which the Magistrate was entitled to take
into account. From the whole of the Statement of Findings, it is clear that the Magistrate did
not reach his conclusion solely on the basis that the Appellant's vehicle did not move when
the traffic light turned green, he reached his conclusion after having considered a set of
matters constituting the overall circumstances of the case.

(2)
In paragraph 27, the Magistrate said the vehicle caused obstruction in the road as it was
the first car stopped in front of the traffic light.
 In my judgment, "caused obstruction" might have been an unfortunate choice of words in
the course of the Magistrate's consideration. It is not necessary that an obstruction had
actually been caused. That an obstruction was likely to be caused is sufficient to amount to
the contravention. However, it is important to note, as I mentioned earlier, the Magistrate
made it clear that the basis of his conclusion was the parking was likely to cause
obstruction.

(3)
In paragraph 31, the Magistrate said he disagreed with the submission that the absence of
driver is a material matter in the consideration.

In my judgment, whether the driver is present is in most cases a relevant factor to take into
account in deciding whether an obstruction was likely to be caused. A driver who is present
may be alert to the circumstances and willing and ready to move the car to avoid the
obstruction it would have caused if not moved. I therefore cannot agree with the
Magistrate. Nevertheless, I note the Magistrate said later in the same paragraph, that the
most important issue is whether the vehicle was likely to cause obstruction of the road. He
is right.

In consideration of the case, the Court cannot lose sight of the following evidence :

(a)
All other vehicles moved away during the observation of the officer, it is a reasonable
inference that notice of the presence of the officer by the other drivers was the cause;

(b)
The driver was reading newspaper when the officer approached him;

(c)
In the circumstances, it defines common sense to suggest that the driver would be able to
promptly move the vehicle so as to avoid any actual obstruction. Evidence indicates that,
unless his attention was drawn to approaching vehicle by means of something amounting
to a protest, he would not be able to notice the obstruction caused by his vehicle. Whether
such obstruction was more than de minimis, an issue to be discussed later, is of course a
separate matter and needs to be considered taking into account the whole circumstances
of each particular case.

(4)
In paragraph 32, the Magistrate cited what Deputy High Court Judge Line (as he then was)
said in
HKSAR v John Edward Ball HCMA 175/2005
5 : "other road-users could not use that specific bit of road" and concluded what happened
amounted to likely to cause obstruction in the road.

Whether the conclusion of the Magistrate is accurate is to be decided by examination of

the whole of the evidence, which I will do. I respectfully agree that what Line J said in Ball
is a matter to be taken into account.
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In paragraph 33, the Magistrate said drivers intending to move along the left lane are other
road users contemplated in the legislation. He found that parking of the Appellant's vehicle
in that manner prevented other road users to use the left lane. This was one of the matters
based on which the Magistrate found that it was likely to cause obstruction.

Mr Hui submitted that the Magistrate failed to take into account that other drivers could still
have used the other lane and be able to turn left into Des Voeux Road Central.

In my judgment, albeit drivers could use either lane to turn left, what the Magistrate said is
again a matter he was entitled to take into account. Other users of the road would be
deprived of a choice.

20. In my judgment, the matters boil down to these - had the prosecution proved beyond reasonable
doubt: the presence of the vehicle, in the circumstances of the case, was likely to cause an
obstruction?
21. As to what amounts to obstruction, I respectfully agreed to what Glidewell LJ and Otton J said in
Hirst and Agu v Chief Constable of West Yorkshire (QBD) (1987) 85 Cr. App. R. 143
:
"… … Unless the obstruction is so small that one can consider it comes within the rubic de
minimis, any stopping on the highway, whether it be on the carriageway or on the footway, is
prima facie an obstruction. To quote Lord Parker CJ in Nagy v Weston [1965] 1 All E.R. 75, 'Any
occupation of part of a road thus interfering with people having the use of the whole of the road is
an obstruction.'"

22. Mr Hui submitted, citing

Van Hing Transportation Company v Attorney General CACV 9/1980
and
R v William Alan Terence Crawley [1994] 1 HKCLR 156
, that contravention of section 4 of the Ordinance comes under civil proceedings and it was in such
context that "the rubic de minimis" could apply. This submission does not affect the accuracy of the
abovesaid decision as to what amounts to obstruction in this context.
23. Mr Hui also quoted passages in the judgment of Van Hing, Crawley and Ball, and submitted that
the conclusion of the Magistrate cannot stand in the light of these decisions. The prosecution case in
Van Hing and Ball was described respectively by the Court as fine line and borderline. Mr Hui
submitted that the evidence in the present case is even weaker that those cases.
24. In Van Hing, the contravention was caused by a lorry parked in King's Road preparatory to
loading up of goods. The parking was meant to be brief. It was parked in the left lane. Other vehicles
approaching from the rear had to slow, stop and change out to the second lane. As a result a police
officer seeing this had to direct the traffic for about 5 minutes. After that he issued a fixed penalty
ticket. When he was doing so, the traffic remained congested with vehicles having to stop behind the
lorry. Silke J described this a fairly "fine line" case.
25. In Ball, a fixed penalty ticket was issued because a police officer found the car parked on a road.
At the hearing before the Magistrate, the Appellant said he parked his car only for five minutes or so
to cross the road to visit some filling stations seeking repair of some damage to his car. The road was
described as wide with room to get by for another vehicle. The case was described by the Court as a
"border line" case.
26. Mr Hui also cited
HKSAR v Smart Oil & Chemical Ltd HCMA 498/2005
where the driver was found unable or unwilling to move the vehicle and argued that the present case
was no comparison as the driver was inside the vehicle and there was no evidence that he was
unable or unwilling to move the vehicle.
27. Mr Hui stressed that there was no evidence about the traffic flow in the 2nd left lane. The
Magistrate did not overlook this matter. Indeed he took a generous but fair stand. He expressly said
that he would regard there was no obstruction on the 2nd left lane as the basis of his consideration.
28. Mr Hui stressed the undisputed evidence that the road has no "no waiting" sign nor was there any
yellow line painting on the road. Again the Magistrate did not ignore these matters. In any case, the
contravention was not in relation to unlawful parking. The issue is whether it was likely to cause
unnecessary obstruction.
29. In all the circumstances, it is my judgment that the Magistrate cannot be said to have erred in
concluding that the Appellant's vehicle was likely to cause unnecessary obstruction. In consideration,
I bear in mind that Keith J said in Crawley:
"The FPTCO (the Ordinance) seeks to promote the free flow of traffic by providing a regime for
the parking of vehicles."
His Lordship also remarked :
"It is an unreasonable use of the road if a vehicle's stationary presence on the road (albeit along
with other vehicles) prevents yet other vehicles from using that stretch of the road."
To these views I entirely agree. In the present case, unless the Appellant's vehicle moved, its
existence deprived other road users in using the left lane when desired. Subject to the rubic de
minimis, it was likely to cause obstruction. If the driver was sufficiently attentive to the traffic condition
and was alert enough and be ready to move promptly to avoid obstruction, there might not be a
contravention of the provision of section 4. However, the driver was reading newspaper not paying
due attention to the surroundings including approaching traffic. It appears that he did not even realise
that the police officer had come to his vehicle. The car stopped at the white line. If there was a vehicle
approaching on the left lane, the driver might not appreciate that the parked car was not going to
move, in particular if the traffic light was red at the time. He would naturally stop behind it and be
obstructed when the light turned green. Drivers arriving afterwards might do the same thing. Although
as a matter of fact there were other vehicles parked behind the Appellant's, the Appellant's vehicle
cannot be said as not having played a part in causing this happening. Not only was that a likelihood to
cause an obstruction, there was also a likelihood of traffic confusion when other drivers came to
realize that they were obstructed. Notwithstanding that there was no direct evidence of the traffic
volume on that road at the material time, it cannot be ignored that the incident took place during the
business hours in the morning of a weekday, at a centrally located road in Central. Even accepting
that it is not the busiest street, use of the road by other drivers can reasonably be expected.
Moreover, the attitude displayed by the driver when he was approached by the police officer did not
demonstrate readiness and preparedness to move. In my judgment, the parking was likely to cause
obstruction and it was not de minimis.
30. As mentioned earlier, Mr Hui expressly said that whether the obstruction is unnecessary is not in
issue. Even if it is, it is obvious to me that the obstruction was unnecessary. At the trial, the Appellant
did not call any witness nor was any evidence adduced about the need of parking the vehicle there
and then. The Statement of Findings does not reveal even any cross examination to this effect. I do
not mean to say that such evidence must have come from the defence. There are bound to be cases
where such evidence is disclosed in the prosecution case. There is, however, nothing in the present
case to show that the obstruction was necessary.
31. The conviction is neither unsafe nor unsatisfactory. I dismiss the appeal against conviction.
Appeal against Sentence
32. The Magistrate imposed a fine of $320 and an additional penalty of $320. The complaint is against
the additional penalty imposed. Mr Hui submitted that it was manifestly excessive or wrong in principle
to impose such additional penalty.
33. The provision in relation to the additional penalty is section 20(3) of the Ordinance :
"Where a person served with a summons in proceedings under section 16(1) does not appear
before the Magistrate or, having appeared, offers no defence or a defence which is frivolous or
vexatious, the Magistrate shall order that person to pay the fixed penalty together with an
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additional penalty equal to the amount of the fixed penalty."

34. The Magistrate said something along the line that he considered the Appellant had not raised any
defence at all6. If he meant what he said, I cannot agree with him.
35. Mr Cliff Ip, Public Prosecutor, sought to support the decision of the Magistrate by submitting that
the Appellant had not relied on any statutory defence set out in section 12, and Schedules 1 and 2 of
the Ordinance nor did the Appellant's submission satisfy any defence enunciated in case law.
36. As the trial, the Appellant did not rely on any defence as such. What they did was seeking to
argue that the prosecution failed to prove that it was likely to cause unnecessary obstruction. As the
prosecution bore the burden of proof, in the circumstances I am not of the view that the Appellant
offered no defence in the context of this provision.
37. I have considered whether what the Magistrate actually meant was that he found the defence was
frivolous or vexatious. Having considered the whole of what he said in this aspect, in particular his
remarks that the Appellant did not adduce any evidence and did not call the driver, I am inclined to
think that the Magistrate meant what he had said and therefore conclude the Magistrate had not made
a finding that the defence was frivolous or vexatious.
38. If the Magistrate had found that the defence was frivolous or vexatious, I do not think I will
interfere with this finding. Once it is found that the defence was frivolous or vexatious, ordering of an
additional penalty is mandatory. However, such finding is a pre-requisite to the order. Not knowing
what the Magistrate's finding would have been, I do not see there is sufficient basis for me to uphold
the order of additional penalty.
39. I therefore allow the appeal against sentence to the extent that the order of additional penalty is
quashed.
1Paragraph 13 in the Statement of Findings.
2Paragraph 33 in the Statement of Findings.
3See sketch (exhibit P8) at page 27 of the Appeal Bundle.
4Page 97 in the Code.
5See paragraph 25 below.
6原文是：本席認為上訴人根本沒有提出任何免責辯護。

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