Appeal limits right to silence

PUBLISHED : Friday, 30 January, 2009, 12:00am
UPDATED : Friday, 30 January, 2009, 12:00am

Law requiring owner to name driver upheld

Less than a year ago, Richard Latker turned a run-of-the-mill traffic case into a legal challenge that resulted in road laws being struck down as unconstitutional. Yesterday, the Court of Appeal put the brakes on his victory, ruling that the laws had not violated the rights to silence or a fair trial.

'Some rights may well be absolute, others perhaps not,' said an 85-page decision written by Chief Judge of the High Court Geoffrey Ma Tao-li, who heard the case with Mr Justice Michael Stuart-Moore and Mr Justice Frank Stock. '[The law] provides an acceptable balance struck between the public interest and the fundamental rights of the individual.'

A new trial was ordered for Latker, 46, who said he would petition the Court of Final Appeal, the city's top adjudicator, to hear his case. 'When they're saying the right to silence is not an absolute right, they're saying it doesn't really exist,' he said. 'It is a slippery slope.'

Latker's constitutional challenge goes back to July 2007, when a police camera caught his car running a red light. The law requires vehicle owners to identify who was driving when the car was photographed, or risk a HK$10,000 fine and up to six months in jail. Latker, a journalist, was charged after he refused to comply.

Kowloon City Magistrate David Thomas acquitted Latker in May last year. He agreed forcing drivers to hand over personal information under threat of jail was the equivalent of a forced confession, which breached Latker's right to a fair trial.

Yesterday, the appeal court disagreed and said the magistrate had ignored established law, which allowed government to curtail individual rights if it had a legitimate public policy objective. In this case, the city's 'high incidence' of traffic accidents - often fatal - meant strict road rules had to be in force, the court said.

'The public interest lies very much in the effective regulation of motor vehicles and their use,' the judgment said. 'In Hong Kong, as in many parts of the world, motor vehicles are prevalent and the potential dangers posed by them self-evident. Extremely serious social problems would be caused if there was an absence of such a [regulatory] system.'

Demanding a person's name, address and driver's licence number was not unreasonable, the court said.

Prosecutors still had to prove their case even if they knew who was driving the car, it said. 'The type of demand for information ... is a limited one; a wide-ranging inquiry is not permitted,' the court said.

Police should exercise stringent control of personal data collected, but a person had not incriminated himself by handing over his name and address, Hong Kong Human Rights Monitor director Law Yuk-kai said. 'Without that basic information, it would make enforcement of the [traffic] laws virtually impossible,' he said.

The court said Hong Kong was not unique in calling for a possible jail term if drivers refused to give personal information.

No one has ever been jailed in the city for breaching this law, according to the Department of Justice.

Latker agreed that drivers should not evade punishment for traffic infractions, especially serious ones that resulted in injury or death.

But forcing people to make a de facto confession allowed police to cut short their investigation and trample over individual rights, he argued. 'There are other very effective ways of enforcing the law,' he said.