HKSAR v. Cheung Wai Kwong

Press Summary (English)

Press Summary (Chinese)

FACC No. 4 of 2017

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

FINAL APPEAL NO. 4 OF 2017 (CRIMINAL)

(ON APPEAL FROM HCMA NO. 271 OF 2016)

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BETWEEN

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JUDGMENT

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Chief Justice Ma:

1.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Ribeiro PJ:

2.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Tang PJ:

3.I agree with the judgment of Mr Justice Fok PJ.

Mr Justice Fok PJ:

4.This appeal involves the following questions of law, namely:

“In the context of the regulatory regime under the Road Traffic Ordinance Cap.374 and its provisions governing road traffic offences and, in particular, in relation to the offence of using an unlicensed vehicle contrary to section 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance, Cap.374:

(1) What is the meaning of “use”?

(2) Whether the meaning of “use” is in any way qualified by “drive”?

(3) Whether, in relation to a person having the immediate “use” of a vehicle, the meaning of “use” is in any way qualified by the presence in a provision of the alternative of permitting or suffering the vehicle to be used or otherwise by the capacity of such a person?”

A. Introduction

5.The respondent to this appeal, Mr Cheung Wai Kwong (“Cheung”), was prosecuted for the offence of possession of an offensive weapon in a public place[1] and, relevantly for this appeal, for the offence of using an unlicensed vehicle contrary to sections 52(1)(a) and 52(10)(a) of the Road Traffic Ordinance (Cap.374) (“the RTO”) (set out below).  It was the prosecution case that, on 18 August 2015, in Ma Tong Road, Yuen Long, Cheung had with him a baseball bat and metal rod in a public place without lawful authority or reasonable excuse and that he used a private car (with the registration mark KG8680) on a road when the car was not registered and licensed in accordance with the RTO.

6.On 25 April 2016, Cheung was convicted of both offences and sentenced to 4 months’ imprisonment on the offensive weapons charge and 2 months’ imprisonment on the charge of using an unlicensed vehicle, both sentences to run consecutively.[2]

7.Cheung initially appealed his conviction and sentence in respect of both offences to the Court of First Instance but, shortly before the hearing of his appeal, he indicated through his counsel that he would only appeal in relation to the offence of using an unlicensed vehicle.  By his judgment dated 23 September 2016,[3] the judge allowed Cheung’s appeal (limited to that conviction) and accordingly quashed his conviction and set aside his sentence for that offence.  On 19 October 2016, on the application of the prosecution, the judge granted a certificate that the questions of law set out in paragraph [4] above were involved in the appeal and were reasonably arguable.  Leave to appeal to this Court was granted by the Appeal Committee on 26 April 2017.[4] 

B. The facts relating to the s.52(1) charge

8.The prosecution case was based on the evidence of a police officer who observed a private car bearing registration number KG8680 parked at a bus stop in Ma Tong Road at 3.15am on 18 August 2015.  A man (Cheung, whose identity was not in dispute) was seen sitting in the driver’s seat of the car, which had its headlights as well as the reading light inside the vehicle compartment on. No one else was inside the car.  Cheung was observed for about five minutes and was seen to be bending down inside the car and looking outside from time to time. At 3.20am, Cheung switched off the headlights, alighted from the car and locked it.  He then walked towards the rear of the car.  The police suspected him of theft from the car and arrested him.  The car key was found on Cheung and, when the car was searched, the baseball bat and metal rod were found in its boot.  On investigation, it was discovered that the car was registered to a Mr Chan Lap-lun (“Chan”) but that its vehicle licence had expired as at 18 August 2015.

9.Cheung’s case was that he ran a car repair business and that he had bought the car from the registered owner, Chan.  Chan gave Cheung a key to the car but it was arranged that delivery of the car would take place after the vehicle licence had expired.  Cheung said that, on the evening of 17 August 2015, Chan called to tell Cheung that he had left the car in Ma Tong Road for him to collect but reminded him that it had some minor problems.  After work that day, Cheung went to the car’s location in Ma Tong Road with the intention of collecting the vehicle registration book and then arranging for it to be towed to his garage for repairs to be carried out.

C. The decisions below and the parties’ contentions on this appeal

10.The magistrate did not believe Cheung’s version of events.  She believed instead that he drove the car to Ma Tong Road.  However, she acknowledged that this was not the charge he faced under sections 52(1) and 52(10) of the RTO.  Proceeding on the premise that a parked car could be in use on a road, she considered that the evidence relied upon by the prosecution (summarised in paragraph [8] above) was sufficient to prove that Cheung had used the car and that it was unlicensed.  On this basis, she convicted Cheung of the offence.

11.On intermediate appeal, the judge rightly focused on the meaning of the word “use” in section 52(1) of the RTO.  Applying a line of authorities considering that word in other road traffic legislation in England and which had been followed in Hong Kong (which I shall address below), he held that the word “use” in section 52(1) applied only to the driver of the vehicle or his employer where the driver was employed to drive for the employer’s affairs.  On this basis, he held that, although the prosecution evidence showed that Cheung did use the car, it was insufficient to support the charge since the prosecution did not allege he drove the car to Ma Tong Road nor was there sufficient evidence to prove that fact.  Accordingly, he allowed Cheung’s appeal.

12.On this appeal, Ms Vinci Lam SADPP, for the prosecution,[5] contended that the judge’s construction of the word “use” in section 52(1) of the RTO was too narrow and that a wider construction should be adopted on the basis of which this Court should conclude that Cheung did use the vehicle within the meaning of the section.  At the beginning of her submissions, Ms Lam indicated that, in the event of the appeal being allowed, the Secretary for Justice did not seek the reinstatement of the conviction for using an unlicensed vehicle and that the appeal was pursued to provide guidance for future prosecutions for the offence.

13.For the respondent, Mr Hectar Pun SC,[6] contended that, adopting a purposive construction, the word “use” in section 52(1) means the use of a vehicle as a means of transport or locomotion and that, on the facts of this case, there was no use of a kind within the mischief to which section 52(1) was directed.  Accordingly, he sought to uphold the judge’s construction of the word “use” in section 52(1) of the RTO.

D. The construction of s.52(1)

14.The parties’ respective contentions raise the questions involved in this appeal and the answers to those questions depend on the proper construction of section 52(1) of the RTO.  Applying the well-settled approach to statutory construction, this requires the Court to construe the relevant language used in the light of its context and purpose.[7]

15.Before embarking on this construction exercise, it should be noted, by way of caveat, that the particular language used in section 52(1) of the RTO differs, to a greater or lesser extent, from that under consideration in a number of the authorities cited in this appeal and considered below.  For this reason, caution must be exercised in seeking to apply some of those cases directly to the present appeal.

D.1 The statutory language and structure of section 52(1)

16.Section 52 consists of a series of prohibitory statements relating to different types of vehicle (sub-sections (1) to (9) inclusive) and then a provision creating offences setting out the maximum penalties (sub-section (10)).  Sections 52(1) and 52(10) of the RTO provide as follows:

“(1) Subject to this Ordinance, no person shall –

(a) drive or use a vehicle of a class specified in Schedule 1, other than a rickshaw; or

(b) suffer or permit such a vehicle to be driven or used,

on a road unless the vehicle is registered and licensed in accordance with this Ordinance.

…

(10) Any person who contravenes –

(a) this section, other than subsection (2), commits an offence and is liable in the case of a first conviction for that offence to a fine of $5,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $10,000 and to imprisonment for 6 months;

(b) subsection (2) commits an offence and is liable in the case of a first conviction for that offence to a fine of $1,000 and to imprisonment for 3 months, and in the case of a second or subsequent conviction for that offence to a fine of $2,000 and to imprisonment for 6 months.”[8]

17.As a matter of language, section 52(1) is drafted to impose a prohibition on any person from carrying out certain activities, namely (a) driving or using, or (b) suffering or permitting the driving or using, of a relevant vehicle on a road unless registered and licensed as prescribed.

18.The nature of the activities that can constitute the offence is addressed in Section D.3 below but it should be noted at this stage that a difference between the activities in (a) and (b) is that the former activities of driving or using create what have been described as strict or absolute offences, in the sense that no mens rea other than driving or user need be proved.  On the other hand, the latter activities of suffering or permitting the driving or user of a vehicle involve the offender having the state of mind of suffering or permitting another to drive or use the vehicle.  For these propositions, see the decisions of the English Court of Appeal in James & Son Ld. v Smee and Green v Burnett & Anor [1955] 1 QB 78[9] per Parker J (as he then was) at p.90, Lord Goddard CJ at pp.93-94 and Slade J (as he then was) at p.95; and, in Hong Kong, Cheung So & Anor v The Queen [1967] HKLR 704[10] per Briggs J (as he then was) at pp.705-707, and Wong Yun-fai v The Queen [1977] HKLR 404[11] per Leonard J (as he then was) at p.405.  On either basis, however, it is unnecessary for the prosecution to prove knowledge on the part of the defendant that the vehicle is not duly registered or licensed.

D.2 The purpose of s.52 and its context within the scheme of the RTO

19.The Long Title to the RTO states its purpose as being “To provide for the regulation of road traffic and the use of vehicles and roads (including private roads) and for other purposes connected therewith”.  Within the RTO, section 52 is the first section in Part 6 of that ordinance which is headed “Use, Sale and Hire of Vehicles”.  Section 52 itself is headed “Restriction on the use of vehicles”.

20.The aim of section 52(1) is broad and, in requiring every vehicle driven or used on a road to be registered and licensed under the statutory registration and licensing systems,[12] includes at least three different purposes: (1) taxation and revenue generation (by the requirement to have paid registration and licence fees before a vehicle can be used on a road); (2) administrative regulation (by the registration and licensing systems which enable vehicles and their owners to be traced and identified); and also (3) road safety and protection of the public (by the registration and licensing systems that respectively ensure mechanical soundness and the requirement that all registered vehicles be covered by third party insurance).

21.Section 52(1) must also be construed in the context of the other provisions of the RTO itself and cognate ordinances and regulations which include the offences relating to driving a motor vehicle under the influence of alcohol or drugs (RTO s.39A et seq.), the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272),[13] and the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.374E).

22.In relation to the offences of driving under the influence of alcohol or drugs, the RTO makes it an offence for a person who “drives or attempts to drive a motor vehicle, or is in charge of a motor vehicle, on any road”[14] with an alcohol concentration above the prescribed limit or under the influence of drugs.  These sections therefore introduce a further activity in relation to a motor vehicle, namely that of being “in charge of” a vehicle, which must be considered as part of the context of the word “use” in section 52(1).  As will be seen, being “in charge of” a vehicle is a broad concept.

D.3 The activities that can constitute the offence under s.52(1)

23.Under section 52(1) of the RTO, three types of activity are prohibited in relation to an unregistered or unlicensed vehicle, namely no person shall (i) “drive”, (ii) “use” or (iii) “suffer or permit [it] to be driven or used”.

24.I shall address the words “drive” and “use” below.  It is unnecessary in this appeal to address the acts of suffering or permitting a vehicle to be driven or used. For present purposes, there is no material difference between “suffer” or “permit” and they can be regarded as indicating different degrees of causation by a person charged with enabling the driving or using.

25.It is to be noted, however, that the prohibitions in section 52(1) are addressed to the person doing the particular activity.  Thus, the prohibition against driving is directed to the driver, that against using to the user, and that against suffering or permitting the driving or using to the person so suffering or permitting.  Properly defined, each of these acts, in relation to an unregistered or unlicensed motor vehicle, is within the mischief to which section 52(1) is directed.

D.3a To “drive”

26.Applying the ordinary meaning of the word as a transitive verb as it is used in section 52(1), to “drive” a motor vehicle means to “operate and control the course of” that vehicle.[15] This is an activity that most people will easily be able to recognise most of the time when it is happening.  The person doing the activity will usually be sitting in the driver’s seat of the car and directly operating the vehicle, usually (but not necessarily) with the engine running, so as to cause it to move, change directions and stop.

27.As Lord Widgery CJ said in R v MacDonagh[16]:

“The essence of driving is the use of the driver’s controls in order to direct the movement, however that movement is produced.”

Thus, the English Court of Appeal held that a man with both feet on the road pushing a car by putting his shoulder against the door pillar and one hand on the steering wheel to control its movement was not driving it.

28.The present appeal is not concerned with the meaning of “drive” in section 52(1) but the word forms part of the context of “use” in that provision.  In this regard, it is instructive to note in passing cases on the meaning of driving which show that the courts have concluded that the act of driving may comprise times when the vehicle is stopped and that there is no principle of law that, as soon as a person alights from a vehicle, he can no longer be said to be driving or attempting to drive: see, in this context, R v Reid (Philip) [1973] 1 WLR 1283 at p.1288C-D referring to Pinner v Everett [1969] 1 WLR 1266[17] and Sakhuja v Allen [1973] AC 152.[18]  In Edkins v Knowles [1973] 1 QB 748, Griffiths J (as he then was) summarised the collective effect of the earlier authorities as follows:

“(1) The vehicle does not have to be in motion; there will always be a brief interval of time after the vehicle has been brought to rest and before the motorist has completed those operations necessarily connected with driving, such as applying the handbrake, switching off the ignition and securing this vehicle, during which he must still be considered to be driving.

(2) When a motorist stops before he has completed his journey he may still be driving; an obvious example is when he is halted at traffic lights. Each case will depend upon its own facts, but generally the following questions will be relevant: (a) What was the purpose of the stop? If it is connected with the driving, and not for some purpose unconnected with the driving, the facts may justify a finding that the driving is continuing although the vehicle is stationary. (b) How long was he stopped? The longer he is stopped the more difficult it becomes to regard him as still driving. (c) Did he get out of the vehicle? If he remains in the vehicle it is some though not a conclusive indication that he is still driving.”[19]

29.Those cases did not concern statutory provisions that included the alternative of “use” as well as “drive” but the principle that emerges from them is that there may be temporary periods during which a person may have stopped a motor vehicle yet still properly be said to be driving it.

D.3b The meaning of “use”

30.Whilst the activity of driving a motor vehicle is relatively straight forward to identify, that of using a vehicle is less so because of the inherent breadth of the verb “use”.

31.In Hickman v Chichester District Council,[20] McCullough J observed:

“The verb ‘to use’ is one of the most common in the language. It has different shades of meaning. It is found, in different contexts, in different statutes. Like any other word it must always be construed in the context in which it appears.”

And, in the same case, Neill LJ said:

“The verb ‘to use’ is capable of bearing many different shades of meaning. When the object used is a motor vehicle the verb will usually connote that the vehicle is being used for its primary purpose of being driven or moved. It may then be relevant to consider the precise relationship between the alleged user and the vehicle to determine whether that person has control of the vehicle.”[21]

32.The inclusion of the alternatives of driving and using in section 52(1) indicates that the Legislature recognised and intended a distinction between the two activities. As Rigby CJ stated in R v Lau Ping:

“… where the Legislature, in the course of the same Act or Ordinance and in subsidiary legislation made thereunder, has deliberately chosen to use different words ‘use’ and ‘drive’ in different sections and in different contexts and, indeed, in the Road Traffic (Construction and Use) Regulations, to use the words ‘drive’ or ‘use’ in the same regulation, it must be assumed that it intended different meanings to be attached to the use of those distinct words or expressions.”[22]

33.There can be little doubt that, as a matter of ordinary language, to drive a motor vehicle is to use it: see Gifford v Whittaker [1942] 1 KB 501 per Viscount Caldecote CJ at p.505; and R v Lau Ping [1970] HKLR 343 per Rigby CJ at p.351.  In Elliott v Grey, a case concerning the then English equivalent of section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272) (see FN 13 above), Lord Parker CJ noted:[23]

“One thing seems to be clear, and that is that ‘use’ there is used in contradistinction to the word ‘drive,’ which appears in other sections … Prima facie, it is a wider term and includes something more than driving and certainly would include moving.”

34.As a matter of construction, therefore, the separate use of “drive” and “use” in section 52(1) indicates that, although it may include the activity of driving, to “use” a vehicle encompasses different and wider activities than driving.  The critical question is what, more than driving, is included in the activity of using a motor vehicle?  I shall return to address this question after first dealing with the principle applied by the judge below in determining that Cheung could not relevantly have been using the vehicle in question at the time of the alleged offence.

D.3c The Windle v Dunning & Son Ltd line of cases

35.Given the breadth of the verb “use”, the activity of using an object can be carried out vicariously.  In relation to a motor vehicle, although one person may be driving the vehicle, another may, as a matter of ordinary language, be said to be using the vehicle.  In ordinary language, one uses a bus or taxi to go from one place to another.  Similarly, a person may, by hiring a vehicle and its driver, have a degree of control over the movement and course of the vehicle such that he may, in general terms, be said to be using that vehicle.  The width of the word “use” is sufficient to embrace the use of a thing by a person through the medium of an agent and so does not restrict the actor who may use the vehicle to the person driving it.

36.However, use of a vehicle in those situations is far removed from the purposes of section 52(1) or the person upon whom the responsibility for registering, licensing and insuring the vehicle ought to fall.  There is therefore a need to restrict the breadth of the word “use” so as not to cast the net of liability under the section too widely.

37.Consistent with that consideration, a line of authorities has developed in England and Wales (and has been followed in Hong Kong) construing the word “use”, in road traffic legislation directed to a person using a vehicle which includes the alternatives of causing or permitting such use, narrowly.  So construed, a person uses the vehicle only if he is the driver of the vehicle or its owner, where the driver is employed by the owner under a contract of service and at the material time was driving on his employer’s business.  In this way, vicarious liability for using a vehicle which another person is driving is limited.

38.The first case in this line of authorities is Windle v Dunning & Son Ltd [1968] 1 WLR 552.  The defendants there had hired three lorries from haulage contractors, who operated the vehicles and employed and supplied the drivers. The lorries were loaded under the defendants’ supervision.  They were found to have exceeded the permitted weight limit and the defendants were prosecuted under a provision prohibiting use of a vehicle which did not comply with the relevant regulations.[24] Lord Parker CJ held:

“In my judgment, as was said by Lord Clyde in giving the judgment in MacLeod v Penman[25]:

‘The presence in the section of the alternatives of causing or permitting the use must limit the scope of what is ‘using.’ Normally, ‘using’ is applicable to the actual driver.’

I entirely agree with that, and in my judgment ‘using’ when used in connection with causing and permitting has a restricted meaning. It certainly covers the driver; it may also cover the driver’s employer if he, the driver, is about his master’s business …”.[26]

39.Next, in Crawford v Haughton [1972] 1 WLR 572, the defendant, who was the owner of a vehicle which did not comply with the relevant construction and use regulations, had been convicted of using the vehicle in that condition on the basis that the driver of the vehicle, although not his employee, was driving with the defendant’s authority and knowledge and for the purposes of his business.  Although noting that the evidence could have supported a charge of causing or permitting the vehicle to be used, the English Court of Appeal, applying Windle v Dunning & Son Ltd, quashed the conviction for using the vehicle, Lord Widgery CJ holding:

“I have not found this a particularly easy case because I find it difficult to accept that, if a man can use a vehicle through the hands of his servant, he cannot be said to use it at the hands of someone who at his specific request drives it on a journey at the express orders and with the full knowledge of the owner. No doubt the line must be drawn somewhere, and the judgments of Lord Parker CJ to which I have referred show a tendency to restrict the capacity of persons using in cases where the alternatives of permitting or causing to be used are provided.

I have thought for some time that it might be right for us to say in the present case that there is yet another category of user for present purposes, not merely the actual driver or his employer, but someone who by specific and immediate direction causes a vehicle to be driven in the manner in which it was driven in this case. But in the end I have come to the conclusion that it would not be right, in view of the authorities, to strive to extend the meaning of ‘use’ for the present purposes, and that only confusion may follow in subsequent cases if we endeavour so to do.”[27]

40.In Howard v G T Jones & Co Ltd [1975] RTR 150, Lord Widgery CJ acknowledged that drawing the line as it had been drawn might be criticised but held:

“The position up to and including the views of this court in Crawford v Haughton really can be summarised in this way: if the legislation provides as alternatives using, causing, or permitting, then prima facie using relates to the man who actually drives; using is the driver’s offence, whereas permitting and causing are, as it were, the owner’s offences. However, the authorities have accepted, as my reference to Crawford v Haughton demonstrates, that where the vehicle is being driven by a servant of the owner and on the owner’s business, that is equivalent to driving by the owner himself and thus can come within the scope of the phrase ‘using a vehicle’. But up to now although the drawing of the line at that point is not wholly logical, there has been no extension of the categories of persons who can be said to use a vehicle beyond first the driver, and secondly the driver’s employer if the driver is working under a contract of service on behalf of the owner of the vehicle.”[28]

41.In West Yorkshire Trading Standards Service v Lex Vehicle Leasing Ltd [1996] RTR 70, Dyson J (as he then was), with whom McCowan LJ agreed, described this narrow approach to the meaning of the word “use” or “uses” in the context of a statute containing the alternatives of “causes or permits” as having “a long pedigree”[29] and held:

“Thus the line has been clearly and consistently drawn by this court. A person is a user only if he is the driver or the owner of the vehicle, but it applies to the owner only if the driver is employed by the owner under a contract of service and at the material time he is driving on his employer’s business. The line has been described variously as not wholly logical and as somewhat artificial, but it has been drawn by this court after due consideration has been given to those criticisms, to some extent, for pragmatic reasons and to avoid confusion.

…

For my part, I am wholly unpersuaded, despite the criticisms of illogicality and artificiality that this well-established line of earlier cases, to some of which I have referred, was erroneous in law. It is quite plain that, in particular, Lord Widgery CJ on several occasions considered the matter very carefully, alive to the criticisms and decided for the reasons that I have mentioned to maintain the principle.”[30]

42.The same approach, developed in cases involving the construction and use regulations, has been followed in relation to the statutory prohibition against use of a vehicle without third party insurance[31]: see Jones v Director of Public Prosecutions [1999] RTR 1 per Sullivan J at p.9B-D.

43.The Windle v Dunning & Son Ltd line of authorities has been followed in Hong Kong in Wong Yun-fai v The Queen [1977] HKLR 404[32] per Leonard J (as he then was) at pp.406-407 and, more recently, in HKSAR v Law Man Bun, unrep., HCMA 367/2003, Judgment dated 1 March 2004, per Deputy High Court Judge Toh (as she then was) at [15]-[16].[33]  And, as noted above, the judge in the present case applied the principle in this line of authorities in reaching the conclusion that Cheung was not using the vehicle in question.

44.Two important points should be noted in relation to the Windle v Dunning & Son Ltd line of authorities which are material distinctions from the present case. 

(1) First, the defendants in those cases were at one remove from the person carrying out the relevant activity, i.e. driving the vehicle, and liability was sought to be attached vicariously to the respective defendants for their user of the vehicle.  Here, in contrast, Cheung was the person actually carrying out the activity said to constitute using the vehicle in question and there is no question of his having used the vehicle vicariously through another person. 

(2) Secondly, the statutory prohibition in each case, although including the alternative “causes or permits” (not materially different to the alternative of “suffer or permit” in section 52(1) of the RTO), did not include a prohibition on both driving and using as in section 52(1) under consideration here.

45.For completeness, it should be noted that the limitation on vicarious user of a vehicle in the Windle v Dunning & Son Ltd line of authorities does not preclude a prosecution on the basis that the defendant has suffered or permitted the vehicle to be driven or used: see Crawford v Haughton [1972] 1 WLR 572 per Lord Widgery CJ at p.576H.  However, as noted in paragraph [18] above, this will require the prosecution to prove the defendant’s state of mind in relation to the suffering or permitting the driving or user as the case may be.

D.3d Other cases on the meaning of “use”

46.Before dealing with the critical question of what, more than driving, constitutes using a vehicle, it is also convenient to consider other cases on the meaning of “use”.  Some of the decisions may be described as surprising but it is important to keep in mind the context and purpose of the relevant statutory provisions under consideration.

47.I have already referred to Elliott v Grey [1960] 1 QB 367, which concerned a car parked outside its owner’s house.  It had broken down and the defendant owner left it in the road until it could be repaired.  Insurance was suspended in the meantime.  The car could not be propelled mechanically since its engine did not work, the battery had been removed and there was no petrol in the tank. The defendant had no intention of driving the car or moving it from its position in the road.  He was convicted of unlawfully using the car without third party insurance contrary to section 35(1) of the Road Traffic Act 1930[34] and his conviction was upheld by the Court of Appeal.  Lord Parker CJ (with whom Cassels J and Edmund Davies J (as he then was) agreed) construed the word “use” as being equivalent to “have the use of a motor-vehicle on the road” and held:

“In the present case, as I have said, though this car could not be driven, there is nothing to suggest that it could not be moved. As I pointed out in argument, for all we know it was on the top of a hill and a little boy could release the brake and the car could go careering down the hill. In the absence, at any rate, of a finding that it was immovable as, for instance, the wheels were removed or something of that sort, I cannot bring myself to think that this car was not fairly and squarely within the words which I have used, ‘have the use of a motor-vehicle on the road.’

… Here was a car which could be moved, albeit not driven, and, in those circumstances, I think the owner had the use of it on a road within the meaning of the section.”[35]

48.The distinction between a vehicle that is moveable and immoveable as the difference between using and not using a vehicle was applied in the cases of Hewer v Cutler [1974] RTR 155 (a case concerning prosecution for use of a vehicle without a test certificate) and Eden v Mitchell [1975] RTR 425 (a case concerning use of a vehicle with defective tyres).  In Hewer v Cutler, the vehicle could not be driven and could not be moved and so its being parked on a road was held not to be user.  The court there declined to take the step of accepting the argument that, even if the car was completely immobilised, there would still be an offending user.  In Eden v Mitchell, the defendant’s parked car was not immobilised and was capable of being used. Notwithstanding that the defendant did not intend to use it, since the vehicle had not been completely immobilised, the prosecutor’s appeal against the dismissal of the informations was allowed.

49.Some care needs to be taken, in my view, in reading “use” in section 52(1) as being the equivalent of “have the use of a motor-vehicle on the road” as in Elliott v Grey.  In so reading “use”, this approach distracts from the transitive verb “use” which focuses on the activity of using and the actor who is carrying out that activity and instead looks to the state of the vehicle alone and to the passive state of the owner, without any regard to any activity by any person.

50.User being an activity that can be carried out vicariously (as recognised by the Windle v Dunning & Son Ltd line of cases), the question arose in Brown v Roberts [1965] 1 QB 1 as to whether a passenger could be said to use a vehicle.  In that case, a passenger opened the door of a van, in which she had been given a lift by its owner, and negligently struck and injured the plaintiff.  The issue in the case was whether the owner had been in breach of his statutory duty in that he permitted the passenger to use the vehicle on the road without third party insurance as required under section 35(1) of the Road Traffic Act 1930.

51.On the question of use, Megaw J (as he then was) accepted (following Elliott v Grey) that the element of driving a vehicle is not an essential element of “using”, nor that “use” was confined to the owner of the vehicle.[36] However, he rejected the plaintiff’s submission that “use” should be given a wide meaning and that it was enough that the defendant was using the vehicle on the road as a means of transport.  Instead, he accepted the submissions for the defendant that, first, for the purposes of use of a vehicle on the road, there must be at least an element, on the part of the user, of controlling, managing or operating the vehicle as a vehicle and, secondly, that it was inconsistent with the legislation as a whole to hold that use of a vehicle on a road within the meaning of section 35(1) of the 1930 Act included the mere relationship of a passenger to the motor vehicle or to a particular part of the motor vehicle.[37]  He concluded:

“[Counsel for the 2^nd defendant owner] is right in his contention that a person does not ‘use … a motor vehicle on a road’ for the purposes of section 35(1) of the Act unless there is present, in the person alleged to be the user, an element of controlling, managing or operating the vehicle at the relevant time. Precisely what the extent of that element may be, it is unnecessary to seek to define. There was no such element present in the relationship between [the 1^st defendant passenger] and the second defendant’s van. I do not accept that the control or management or operation of a door of the vehicle by the passenger entering or alighting amounts to the necessary control or management or operating of the vehicle.”[38]

52.The meaning given to user by Megaw J was endorsed by the English Court of Appeal in Hatton v Hall & Anor [1997] RTR 212.  In that case, it was sought to be argued that the pillion passenger of a motorcycle was using the motorcycle.  The Court of Appeal rejected this argument and applied Brown v Roberts in holding that, given the serious legal consequences of a finding that a person was using a vehicle under section 143(1) of the Road Traffic Act 1988,[39] “use” had to be given the restricted meaning imposed by Megaw J.[40]

53.In the course of his judgment for the court, Henry LJ referred to cases in which passengers had, nevertheless, been held to be using a vehicle, namely Leathley v Tatton [1980] RTR 21 and Stinton v Stinton [1995] RTR 167.  These cases (which respectively arose out of somewhat unusual facts) were, however, reached on the basis that the passengers had been engaged in a joint enterprise or joint venture with the actual driver and so were jointly using the vehicle.  The principle applied in such cases is whether the passenger was exercising a sufficient degree of control or management over the vehicle to be jointly using it.  Such cases will depend on the evidence and Henry LJ upheld the first instance judge’s distinguishing of the joint enterprise approach in Stinton v Stinton and his application of the test of user in Brown v Roberts.  He said:

“Fundamental to the distinction he made was his assumption that not all plans shared between driver and passenger give the passenger sufficient management of the vehicle to make him a user of the vehicle. That conclusion seems to us to be good sense as well as good law. If a passenger employs a driver to drive against the clock to catch an aeroplane he clearly has a greater power to control and/or manage the vehicle than would be the case if a father agreed to drive his 18-year-old son and 80-year-old mother-in-law, neither able to drive, to visit his wife in hospital. Similarly, if a bank-robber is a pillion passenger on a get-away motorcycle, it may be inferred that he has a greater degree of management and control over the driver than the pillion passenger in the instant case. It is a question of fact and degree in each case, but in all cases user must be given the restricted meaning found by Megaw J.”[41]

54.In the recent case of UK Insurance Ltd v Holden & Anor [2017] 3 WLR 450, the English Court of Appeal considered the question of whether an owner’s carrying out of repairs to a vehicle to put it into a safe and good working condition fell within “use” of a vehicle for the purposes of section 145(3) of the Road Traffic Act 1988.[42] In his judgment, Sir Terence Etherton MR, having reviewed cases including Elliott v Grey, summarised a number of propositions including the following, namely that: “(1) ‘Use’ is not confined to the actual operation of the car in the sense of being driven.  (2) There may be ‘use’ of a car when it is parked or even immobilised and incapable of being driven in the immediate future.  (3) ‘Use’ of a vehicle includes anything which is consistent with the normal function of the vehicle.”[43]  Hence, he concluded:

“… it follows that the repair of a car, which the owner was driving but due to disrepair cannot be lawfully and safely driven, and which the owner wishes to effect as soon as possible in order to be able to drive the car lawfully and safely, is ‘use’ of the car within section 145(3)(a) of the RTA, being an activity consistent with its normal function for the purpose of that statutory provision.”[44]

D.3e Being “in charge of” a motor vehicle

55.Although not an activity that falls within section 52(1), the concept of being in charge of a vehicle is one which is found in the RTO in the sections creating the offences of driving under the influence of alcohol or drugs and forms part of the context of section 52(1).  This activity is described in the legislation in a descriptive sense in relation to the vehicle (“A person who … is in charge of a motor vehicle”) and is used in contrast to the activities of driving or attempting to drive. In terms of a spectrum of activities, being in charge of a vehicle is therefore a broad concept and, as a matter of ordinary language, requires less control, management or operation of a vehicle than does driving or using it.

56.The leading authority on the concept of being “in charge of” a motor vehicle is the decision of the English Divisional Court in DPP v Watkins [1989] 1 QB 821.[45] In that case, the defendant, who was drunk, was found in the early hours of the morning in the driver’s seat of a Mini car, not owned by him and parked in the street.  He had a bunch of keys in his hand and one of these, marked “Honda”, was found between his thumb and forefinger.  The key could be inserted in the ignition but there was no evidence it could start the Mini.  On the prosecution’s appeal following the dismissal of the informations against the defendant, the Divisional Court allowed the appeal and remitted the case to the justices holding that a person, who was not the owner of a car, was in charge of the vehicle if he acted in a manner that showed that he had assumed control or intended to assume control of the vehicle preparatory to driving it.  If the prosecution showed such assumption of control, the burden then fell on the defendant to prove that there was no likelihood of the vehicle being driven.[46]

57.In his judgment, Taylor LJ (as he then was) acknowledged that no hard and fast all-embracing test could be propounded as to the meaning of the phrase “in charge” but said:

“The circumstances to be taken into account will vary infinitely but the following will usually be relevant:

(i) Whether and where he is in the vehicle or how far he is from it.

(ii) What he is doing at the relevant time.

(iii) Whether he is in possession of a key that fits the ignition.

(iv) Whether there is evidence of an intention to take or assert control of the car by driving or otherwise.

(v) Whether any other person is in, at or near the vehicle and if so, the like particulars in respect of that person.

It will be for the court to consider all the above factors with any others which may be relevant and reach its decision as a question of fact and degree.”[47]

58.Importantly, Taylor LJ drew a distinction between two classes of case.  One is where the defendant is the owner or lawful possessor of the vehicle or has recently driven it.  In such a case, he will have been in charge of it and the question for the court will be whether he is still in charge or whether he has relinquished such charge.  The other is where the defendant is not the owner, lawful possessor or recent driver but is sitting in the vehicle or is otherwise involved with it.  Here, the question for the court will be whether he has assumed being in charge of it.[48]

59.This distinction highlights the need, in the context of “in charge of” cases, of examining the status of the defendant and his connection or relationship with the vehicle. This is a consideration which, in my view, applies also to the question of whether a person is carrying out an activity that amounts to use of a vehicle and is reflected in the passage from Megaw J’s judgment in Brown v Roberts quoted in paragraph [51] above.

D.3f What, more than driving, constitutes using a vehicle?

60.Pausing here, in terms of relevant prohibitions in the RTO, to “drive” a vehicle is an easily identifiable activity and a specific form of use (i.e. “use” embraces driving), but to “use” a vehicle can also involve an activity less specific than that.  At the same time, to “use” a vehicle imports something more active than merely being “in charge of” it, which is a broadly defined act and depends on a range of circumstances and the person’s status and his connection or relation to the vehicle in question.

61.I now turn to the critical question in this case: what, more than driving, constitutes using a vehicle within section 52(1) of the RTO?

62.Having regard to the language of section 52(1), which includes both “drive” and “use”, and the context and purpose of the section, I would conclude that the proper construction of “use” is the activity of exercising a measure of control, management or operation over the motor vehicle as a means of transport, including any period of time between journeys.

63.This definition of “use” provides, in my view, a workable definition but it must be understood that, like the cases concerning being “in charge of” a vehicle, it can apply to different types of person.  There may be some cases where the defendant is the owner or lawful possessor of the vehicle or has recently driven it.  There may be other cases where the defendant is not the owner, lawful possessor or recent driver but is sitting in the vehicle or otherwise involved with it.  The status of the person and his connection or relationship to the vehicle may influence the outcome of the decision as to whether any particular activity does or does not constitute a relevant user of the vehicle.

64.Further, since the Windle v Dunning & Son Ltd line of authorities is now well-established and has been consistently followed in Hong Kong, the extent to which a person may vicariously use a vehicle by another person’s driving is limited to the employer of the person driving or actively using it if the driving or use is for the business of the employer.  But that principle does not preclude someone other than the driver of the vehicle being held to “use” the vehicle if he is the actor carrying out the relevant activity.

65.Just as Taylor LJ in DPP v Watkins noted that the circumstances to be taken into account for being “in charge of” a vehicle will vary infinitely and that ultimately each case will be one of fact and degree depending on various factors in the evidence, so too will each case where “use” of a vehicle is alleged.  Numerous examples of varying degrees of activity can be posited (and some were canvassed in the course of the hearing of this appeal).  It will not, in my view, assist to set out specific examples of activities falling within the definition of “use” and of others falling outside that definition. However, by focusing on the activity in question and the status of the actor and his connection and relationship to the vehicle, insofar as that informs the nature of the activity in which he is engaged, the proper scope of “use” in section 52(1) will be achieved.

66.I digress to comment on a case referred to by the prosecution in the Appellant’s Printed Case,[49] which was not cited by the parties below (nor in the case of HKSAR v Law Man Bun (supra)), namely The Queen v Poon Jing [1985] HKLR 341.  That case concerned convictions for driving whilst disqualified under section 44(1) of the RTO and for driving (sic) a vehicle without third party insurance contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272).  On the facts, Deputy High Court Judge Cruden held that there was no act of driving and so quashed the convictions.  The prosecution invited him to amend the second charge to using a vehicle without third party insurance, since the prohibition in section 4(1) (set out in FN13 above) is on using a vehicle without such insurance.  The deputy judge refused to allow this amendment and, following cases including Wong Yun-fai v The Queen (supra) (which applied the principle laid down in Windle v Dunning & Son Ltd), held that where a person was charged with use of a vehicle, they were either the non-driver owners of the vehicles or the drivers themselves.  Since there was no evidence the appellant was the owner, and on the facts he had not driven, the deputy judge held that the charge would not be made out even if amended.

67.The prosecution challenged such a restricted approach to the concept of using a vehicle.  As already noted, that case did not concern section 52(1) of the RTO but I see no reason why the definition of “use” proposed above (or a broadly similar definition) should not also apply to “use” in section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (Cap.272).  Insofar as the deputy judge in The Queen v Poon Jing held that no one other than the driver or his employer could use a vehicle, this holding cannot be supported since it is not consistent with the language of the prohibition which applies to all persons and is dependent on the application of a line of authorities dealing with the extent to which user can be vicarious.  As will be seen, this error was also made by the judge in the present case.  It is neither necessary nor appropriate, however, to examine whether the facts in The Queen v Poon Jing (which were disputed and not determined by the magistrate or deputy judge) would have been sufficient to sustain a charge of using a vehicle without third party insurance.

E. Answers to the certified questions of law and summary on the construction of section 52(1)

68.In light of the above discussion, I would answer the certified questions of law as follows. The proper construction of “use” in section 52(1) is set out in Section D.3f above.  The activity of using a vehicle is different to, and wider than, that of driving a vehicle: see Sections D.3a and D.3b above.  Where a person is the immediate user of a vehicle and is directly carrying out the activity said to constitute the use, rather than vicariously through the act of another person driving the vehicle, the Windle v Dunning & Son Ltd line of authorities restricting the meaning of “use” does not apply.

69.To summarise my views set out above as to the proper construction of section 52(1) of the RTO:-

(1) Section 52(1) prohibits the activities of driving, using and suffering or permitting the driving or using of an unregistered or unlicensed motor vehicle and is to be construed in the light of the three-fold purposes of: taxation and revenue generation; administrative regulation; and road safety and protection of the public.  The prohibitions are addressed to the person doing the particular activity, each of which, properly defined, in relation to an unregistered or unlicensed motor vehicle, is within the mischief to which section 52(1) is directed.

(2) By using the two verbs “drive” and “use”, section 52(1) contemplates different meanings to be attached to the two words.  The latter term “use” is a wider term and includes something more than driving and would certainly include moving.

(3) The activity of driving means to operate and control the course of a motor vehicle usually by sitting in the driver’s seat and directly operating the vehicle, usually (but not necessarily) with the engine running, so as to cause it to move, change directions and stop.  The vehicle need not be in motion since the activity of driving will extend to those operations necessarily connected with driving and, depending on the reason for stopping, a person may still be driving the vehicle when it is stopped.

(4) To “use” a motor vehicle includes driving it but also embraces a wider range of activities in relation to the vehicle less specific than driving.  Having regard to the context and purpose of section 52(1), to “use” a vehicle means the activity of exercising a measure of control, management or operation over the vehicle as a means of transport, including any period of time between journeys.

(5) To “use” a vehicle imports something more active than merely being “in charge of” it, which is a broadly defined act and depends on a range of circumstances (including those identified by Taylor LJ in DPP v Watkins [1989] 1 QB 821 at p.831F-G) and the person’s status and his connection or relation to the vehicle in question.

(6) This definition of “use” can apply to different types of person, including the owner or lawful possessor of the vehicle or recent driver of it, or someone who is none of those but is sitting in the vehicle or otherwise involved with it.  The status of the person and his connection or relationship to the vehicle may influence the outcome of the decision (e.g. excluding passengers) as to whether any particular activity constitutes prohibited user of the vehicle by him in the light of the statutory purposes mentioned above.

(7) A person may “use” a vehicle vicariously through the agency of another person who is driving or using it but, in such a case, a restricted construction of “use” will be applied so that the user is limited to the employer of the person driving or actively using the vehicle if the driving or use is for the business of the employer.  This construction does not preclude someone other than the driver of the vehicle being held to “use” it if he is the actor carrying out the relevant activity.

(8) Whether any particular activity is user of a vehicle will depend on the evidence and the circumstances to be taken into account will vary infinitely.  Each case will be one of fact and degree depending on various factors in the evidence.  By focusing on the activity in question and the status of the actor and his connection and relationship to the vehicle, insofar as that informs the nature of the activity in which he is engaged, the proper scope of “use” in section 52(1) will be achieved.

F. The Magistrate’s analysis

70.The magistrate’s analysis in her Statement of Findings was as follows:

“18. Although I totally believe that it is the accused who drove the car to the scene, this is not the charge he faces. Certainly, this finding of mine is sufficient to convict the accused of the second charge. Paragraph 10.44 of Wilkinson states that ‘use’ must involve an element of controlling, managing or operating a vehicle: ‘‘Use’, under section 143 means that there must be an element of controlling, managing or operating the vehicle as a vehicle.’ Paragraph 10.55 reads: ‘A vehicle is in use on the road when it is stationary and unattended and it must be insured.’ A vehicle parked on the road without anyone inside is also in ‘use’. In the present incident, the headlights and the reading light of KG8680 were on. The accused was seen alighting from the car and locking the doors. He re-opened the car after the police requested for a car search. He was in possession of the car key. These pieces of evidence alone are sufficient to prove that the accused had used KG8680 which was unlicensed. The accused is convicted as charged.”

71.It was not open to the magistrate to convict Cheung on the basis that he had driven the car to Ma Tong Road since that was not the charge he faced.  Moreover, as the judge noted, there was insufficient evidence to support a finding of fact that he had done so.[50] Even if Cheung’s evidence was disbelieved, there was simply no evidence that he had driven the car to the place where he was seen to be sitting in it.

72.The magistrate correctly focused on the activities of Cheung when interacting with the car. Her conclusion that the evidence was sufficient to constitute user within section 52(1) will be examined in Section H below.

G. The Judge’s analysis

73.The judge framed the issue before him in the following terms in his judgment:

“29. … The issue in this appeal is whether the proper interpretation of section 52(1)(a), as submitted by the Appellant, is that the word ‘use’ only applies to the actual driver of the subject vehicle or his employer.”

But, with respect, it was wrong to focus on this narrow issue since it ignored the question of whether the actions of Cheung himself were sufficient to come within the proper definition of “use” in section 52(1).

74.Having correctly noted (in paragraph [31] of the CFI Judgment) that the addition of “use” as well as “drive” in the section, the Legislature must have intended that a vehicle can be used otherwise than by driving, the judge wrongly concluded that the word “use” could not apply to anyone other than the driver or his employer.  His error in paragraph [31] was to regard the verb “use” as referring to the identity of the actor and this appears to have caused him to lose focus on what really matters which is the quality of action by any person which may or may not constitute “use” within the section.  To this extent, his concentration (in paragraph [32] of the CFI Judgment) on the registered owner may have misled him into construing “use” too narrowly by reference to the principle in Windle v Dunning & Son Ltd.  As I have noted in paragraph [44] above, there are two distinguishing features between this case and the Windle v Dunning & Son Ltd line of authorities.

75.Ultimately, in paragraph [34] of the CFI Judgment, having found that the appellant did in fact “use” the car, he nevertheless allowed the appeal on the basis that the appellant was not the driver or the employer of the (unidentified) driver. Although he was correct that the evidence did not support a finding that the appellant had driven the car, he wrongly decided the case on the simplistic basis that he did not fall within the definition of “driver or his employer” (paragraph [35] of the CFI Judgment).

76.What the judge should have done was to analyse the actions of Cheung to determine if that activity amounted to using the vehicle in question within the meaning of section 52(1), to which ultimate question I now turn.

H. Was the respondent using the vehicle within the meaning of s.52(1)?

77.The findings of fact in the present case are limited to these: Cheung was sitting in the driver’s seat of the car with the headlights and reading light on; he bent down inside the car and looked outside from time to time; he switched off the headlights and alighted from and locked the car; and he walked towards the rear of the car.

78.Although the judge said this evidence “clearly shows” the defendant used the car (see the CFI Judgment at paragraph [34]), it is far from clear how alighting from the car and walking to its rear could constitute such use.  All that the evidence shows is that Cheung sat in the driver’s seat when the headlights and reading light were on, that he turned those lights off and alighted and locked the car.  He was not the registered owner, there was no evidence he had driven the car to the location on the road in question and no evidence as to the likelihood of his driving it away from that place.  The prosecution did not invite the magistrate to find that the placing of his personal property in the boot of the car and other circumstances led to an inference that Cheung had either driven the car to Ma Tong Road or was intending to drive it away from there.

79.Accordingly, applying the definition of “use” set out in Section D.3f above, I would conclude that Cheung’s actions in the context of his status towards the car did not amount to exercising a measure of control, management or operation over the motor vehicle as a means of transport, including any period of time between journeys, so as to fall within the meaning of section 52(1) of the RTO.  This case may perhaps be seen as falling close to the line and it is a matter of speculation as to whether, had there been additional evidence of how the vehicle came to be in Ma Tong Road and how it was intended that it be moved from that location, a contrary conclusion might have been reached.  Nevertheless, on the evidence as it stands, I would not conclude that Cheung used the car contrary to section 52(1).

80.I would add that the evidence would appear to support the conclusion that Cheung was certainly “in charge of” the vehicle within the meaning of that phrase so that he would bear the burden of establishing the statutory defence: he had the ignition key of the car, the key was inserted in the car at least to the point where the lights were operational, Cheung turned off the lights and locked the car. However, the evidence does not ultimately support a conclusion that he used the car.

I. Disposition

81.To the extent that the prosecution’s appeal was limited to seeking guidance on the certified questions of law, the answers that I would give to those questions are set out in Section E above.  The appeal against the judge’s order below quashing the conviction in question should otherwise be dismissed.

Mr Justice Gummow NPJ:

82.I agree with the judgment of Mr Justice Fok PJ.

Ms Vinci Lam SADPP and Mr Ivan Cheung PP, of the Department of Justice, for the Appellant

Mr Hectar Pun SC, Mr Peter Yu and Mr Anson Wong Yu Yat, instructed by Y.H. Yeung & Associates, assigned by the Director of Legal Aid, for the Respondent