It seems to me that according to section 63 of Cap 374, "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", the driver has an obligation to provide information about the driver. It is immaterial whether the offence was actually committed. The burden of proof for "SUSPECTED" seems to be lower than "ACTUALLY COMMITTED".
I tend to think that the prosecution will proceed with the offence of "Failing to provide information about the driver within 21 days.
Yes, I agree that it should be depend on objective evidence.
It is impossible for the police to issue Pol. 571 (Request to provide driver's particular) to every vehicle owners who parked their cars in the near vicinity. I tend to think that police should have some hints / evidence to link D's car with the accident, e.g. bump mark; cow hair and bloodstain underneath the vehicle; or forensic evidence / comparison between the substance seized from the vehicle and the cows etc.
Such hints / evidence might not sufficient to prove beyond resonable doubt that the subject vehicle was involved in the accident. But it might be sufficient to raise reasonable suspicion.
One way of interpreting "suspected of " is that the triggering contravention has not been decided by a court of law. Even if there is cogent evidence to convict, the case has not been tried in court, you can only use "suspected of having committed". There is a need to find out who the driver is. For instance, a collision occurs and the offending vehicle flees the scene. If the case goes on trial for careless driving etc, there will be a sure conviction. But still, no such trial takes place because the police have yet to find out who the driver is. The law can only describe "suspected of having committed" instead of "has committed".
Having seen some contact evidence and bloodstain and hair, there is no doubt some sort of contact between the car and the cows can be established. What about when I drive past the scene and is unable to swerve to avoid rolling over the dead cows? What offence it is if it is a case like this? This is the first threshold. If there is eye witness about the collision, this hurdle undoubtedly can be overcome. Though the use of "suspected" leads us to think of a lower requirement on the onus, I am afraid I do not agree. I would have thought the prosecution is unable to prove the case beyond reasonable doubt.
May I refer to AG v WONG Chi-wai HCMA 1507/1994 (a similar provision under the Road Tunnel (Government) Ord.), one of the grounds of appeal is "Whether it is necessary for there to be evidecne before the court of the suspected offence". The High Court refered to Jacob v Garland [1974] RTR 40 and ruled that the notice (I think it should be similar to Pol. 571) was in all aspect adequate in that it included a statement of the alleged offence. The answer to the above ground of appeal was "NO".
Nowadays, in view of the Bill of Right, I accept that it is not realistic to rely on the notice and the statement therein to prosecute the D. However, It doesn't mean that the prosecution needs to raise the threshold, i.e. to prove beyond reasonable doubt that the said vehicle involved in the offence, instead of "suspected to have committed"
Ladies, thank you for feeding me with the cases. I do not want to be argumentative, I still want to distinguish the instant case with the ones you referred me to Chan J, as he then was, dealt with the appeal mainly on the Bill of Rights issue which is not the issue I canvassed here. In both tunnel cases, the evidence was direct and cogent. There was evidence of the contravention from tunnel staff. Why was such evidence required if it was simply a case of a reference made in the notice to the offence to give rise to a legal requirement on the registered owner to provide the identity of the driver? Though Lord Widgery CJ was against me on this point, he put it too simple a requirement when he said "all the prosecution have to do is to prove that the notice was served and not complied with ..." Duffy J mentioned crossing continuous double white line and Chan J's going through the wrong booth, there was direct evidence from the prosecution to establish these facts. What evidence is there in the instant case? I tend to argue, maybe repeatedly, the court has to satisfy evidence of such should be before the court then the court can say there is a prima facie case. If what Lord widgery said was correct, there is not even the need to call any forensic evidence about the contact. The prosecution can make any allegations of contravention without any onus to establish their veracity.
It seems to me that according to section 63 of Cap 374, "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", the driver has an obligation to provide information about the driver. It is immaterial whether the offence was actually committed. The burden of proof for "SUSPECTED" seems to be lower than "ACTUALLY COMMITTED".
回覆刪除I tend to think that the prosecution will proceed with the offence of "Failing to provide information about the driver within 21 days.
VL
I guess the "suspicion" should be an objective standard in light of the right to privacy as protected by the Basic Law and the Bill of Rights?
刪除S
Yes, I agree that it should be depend on objective evidence.
刪除It is impossible for the police to issue Pol. 571 (Request to provide driver's particular) to every vehicle owners who parked their cars in the near vicinity. I tend to think that police should have some hints / evidence to link D's car with the accident, e.g. bump mark; cow hair and bloodstain underneath the vehicle; or forensic evidence / comparison between the substance seized from the vehicle and the cows etc.
Such hints / evidence might not sufficient to prove beyond resonable doubt that the subject vehicle was involved in the accident. But it might be sufficient to raise reasonable suspicion.
VL
One way of interpreting "suspected of " is that the triggering contravention has not been decided by a court of law. Even if there is cogent evidence to convict, the case has not been tried in court, you can only use "suspected of having committed". There is a need to find out who the driver is. For instance, a collision occurs and the offending vehicle flees the scene. If the case goes on trial for careless driving etc, there will be a sure conviction. But still, no such trial takes place because the police have yet to find out who the driver is. The law can only describe "suspected of having committed" instead of "has committed".
回覆刪除Having seen some contact evidence and bloodstain and hair, there is no doubt some sort of contact between the car and the cows can be established. What about when I drive past the scene and is unable to swerve to avoid rolling over the dead cows? What offence it is if it is a case like this? This is the first threshold. If there is eye witness about the collision, this hurdle undoubtedly can be overcome. Though the use of "suspected" leads us to think of a lower requirement on the onus, I am afraid I do not agree. I would have thought the prosecution is unable to prove the case beyond reasonable doubt.
Sorry to keep discussing about the issue.
回覆刪除May I refer to AG v WONG Chi-wai HCMA 1507/1994 (a similar provision under the Road Tunnel (Government) Ord.), one of the grounds of appeal is "Whether it is necessary for there to be evidecne before the court of the suspected offence". The High Court refered to Jacob v Garland [1974] RTR 40 and ruled that the notice (I think it should be similar to Pol. 571) was in all aspect adequate in that it included a statement of the alleged offence. The answer to the above ground of appeal was "NO".
Nowadays, in view of the Bill of Right, I accept that it is not realistic to rely on the notice and the statement therein to prosecute the D. However, It doesn't mean that the prosecution needs to raise the threshold, i.e. to prove beyond reasonable doubt that the said vehicle involved in the offence, instead of "suspected to have committed"
VL
問一個假設性的問題。假如有一天我收到警方寄來的Pol. 571，而我又不同意警方對自己名下的車輛涉案有合理懷疑，以下哪一個處理方法最好呢？
回覆刪除1. 不作理會，待被檢控違反道路交通條例第63條第(1)款時作出抗辯；
2. 照樣回覆警方，然後在就被指控罪行遭到檢控時作出抗辯；
3. 針對警方的提供資料要求提出司法覆核；
4. 其他？
首先別想司法覆核，香港太多人中了此毒，不是甚麽事情事無大小都講司法覆核，行使權利也要以理智去平衡。
刪除收到Pol. 571置之不理並非良策，如果上庭才知控方證據充足，到時怎抗辯？應該聯絡警方，問下涉嫌干犯交通條例的證據，然後去想一下誰是司機及發生甚麽事。提供了司機身份，司機會被控違例事項，要抗辯違例的事，在審該案時才去爭辯。故此第二方法最好，當然講正確的態度，蠱惑的我不教人。像死牛案這種會提出檢控就比較少。假設這女被告提供了自己是司機，自己駕車經過見到死牛，避無可避轆過一隻，我不知警察可以怎樣告她？
有人覺得違例事項嚴重，不提供司機身份可以逃避扣分，不要忘記登記車主不提供司機身份可以直接被停牌，而且停牌期是沒上限的（第69條）。
我明白司法覆核並非萬能，而且採用此途徑在burden of proof上會蝕底過抗辯刑事檢控，但理論上警方的提供資料要求是否可被覆核？
刪除申請司法覆核要先獲得許可(leave)，我看不到獲批的可能，先要說服法官這是arguable case。
刪除I agree with VL and think the dicta of P Chan J in HCMA 661/1996 is also relevant.
回覆刪除I
VL and I,
刪除Ladies, thank you for feeding me with the cases. I do not want to be argumentative, I still want to distinguish the instant case with the ones you referred me to Chan J, as he then was, dealt with the appeal mainly on the Bill of Rights issue which is not the issue I canvassed here. In both tunnel cases, the evidence was direct and cogent. There was evidence of the contravention from tunnel staff. Why was such evidence required if it was simply a case of a reference made in the notice to the offence to give rise to a legal requirement on the registered owner to provide the identity of the driver? Though Lord Widgery CJ was against me on this point, he put it too simple a requirement when he said "all the prosecution have to do is to prove that the notice was served and not complied with ..." Duffy J mentioned crossing continuous double white line and Chan J's going through the wrong booth, there was direct evidence from the prosecution to establish these facts. What evidence is there in the instant case? I tend to argue, maybe repeatedly, the court has to satisfy evidence of such should be before the court then the court can say there is a prima facie case. If what Lord widgery said was correct, there is not even the need to call any forensic evidence about the contact. The prosecution can make any allegations of contravention without any onus to establish their veracity.
被告今在荃灣裁判法院否認一項違反提供某些資料的責任罪名，案件定於下月29日預審，控方會傳召17名證人。
回覆刪除假如有人證指出被告的車牌號碼，是否夠證據裁定被告不提供資料罪？
你是指看到被告的車撞死牛，若如此而不提供司機資料，當然夠資，連科學鑑證也不用了。我印象中看到報導的案情是無目擊證人，才會有VL,I 這些律政佳人的討論。
刪除