Hearing sought on right-to-silence ruling

PUBLISHED : Wednesday, 21 May, 2008, 12:00am
UPDATED : Wednesday, 21 May, 2008, 12:00am

The Department of Justice will seek an expedited appeal hearing on a magistrate's ruling that police notices requiring identification of drivers in traffic offences breach the right to silence.

A government source said yesterday that the department would seek the 'quickest route' to obtain a more binding ruling, which could mean the case is referred directly to the Court of Appeal, bypassing the Court of First Instance.

The government's move to appeal as soon as possible was backed by a legal academic and a lawmaker, who both expressed surprise at the magistrate's ruling. They recognised the right to silence was not absolute, and other public interests, such as road safety, should be considered.

Eric Cheung Tat-ming, an assistant professor at the University of Hong Kong's law faculty, warned against deliberately ignoring traffic notices because of the magistrate's ruling, since a higher court may reverse the decision.

Democratic Party lawmaker James To Kun-sun, a lawyer, said the urgent need for a higher ruling on the issue was highlighted by the fact that the right to silence, or the issue of self-incrimination, could affect other road traffic issues such as mandatory breathalyser tests and the paying of fines for using tunnels without paying the toll.

The government has tabled more stringent laws on drink-driving which includes random breathalyser tests and the recent ruling - that a section of the Road Traffic Ordinance requiring owners of vehicles to identify the driver at the time of the suspected offence was unconstitutional - was discussed in yesterday's meeting of the bills committee on road traffic legislation.

On May 9, journalist Richard Latker was acquitted of failing to disclose information after his car had been caught jumping a red light. The magistrate ruled that the section of the Road Traffic Ordinance requiring identification was unconstitutional and a breach of the right to silence.

Magistrate David Thomas stood by his decision on Monday after being asked to review his ruling.

Professor Cheung said: 'The government has solid reasons to appeal ... you can see the background reason for this ordinance.'

The appeal would require the judge to balance the right to silence with the necessity of having such a requirement, Professor Cheung said. 'If you don't regulate this then it will greatly hinder road safety,' he said.

A government source was confident of the department's chance of success. The source noted that previous rulings by courts in Britain and the European Court of Human Rights recognised identification provisions were necessary to tackle the 'serious social problem' of dangerous driving.