HKSAR v. Lo Kin Chong

HCMA 605/2017

[2018] HKCFI 885

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MAGISTRACY APPEAL NO 605 OF 2017

(ON APPEAL FROM STCC 2166 OF 2017)

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REASONS FOR JUDGMENT

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1.This is an appeal out of time brought by the Appellant.  On 26 June 2017, he appeared before Deputy Magistrate Mr Lam Tsz Kan (as he then was, hereinafter referred as “the Magistrate”) and pleaded guilty to two offences of (i) driving with alcohol concentration above prescribed limit under section 39A of Road Traffic Ordinance, Cap 374 (“Charge 1”); and (ii) using a vehicle without third party insurance under section 4(1) and 4(2) of Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap 272 (“the Ordinance”) (“Charge 2”). The Magistrate convicted the Appellant of both charges upon his pleas.

2.On 16 October 2017, the Appellant applied for extension of time for giving notice of appeal against his conviction for Charge 2 and the application was granted by the Magistrate.

3.This appeal concerns Charge 2, ie, using a vehicle without third party insurance.

4.The Respondent concedes the appeal and invites the Court to allow the appeal against conviction in relation to Charge 2.

5.In short, it is common ground between the Appellant and the Respondent that the material terms of the restriction clause in the Appellant’s insurance policy is indistinguishable from the restriction clause in HKSAR v Law Wing Fai [2017] 4 HKLRD 532.  In fairness to all parties concerned, it should be noted that Law Wing Fai was heard and decided after the Appellant’s appearance before the Magistrate, hence the Appellant, the prosecution and the Magistrate did not have the benefit of reading the Court of Appeal’s judgment in Law Wing Fai when the Appellant pleaded to Charge 2.

6.In Law Wing Fai, the Court of Appeal held that since the reference to the policy to the proportion of alcohol in the policy’s holder breath is a reference to the driver’s physical condition, it is caught by section 12(1)(a) of the Ordinance and is thus rendered effective.  As the restriction clause is rendered ineffective, the policy was valid at the material time and no offence was committed.

7.Section 12(1) of the Ordinance provides (where it is material):

“(1) Where a certificate of insurance has been issued under section 6(3) …, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any of the following matters—

(a) the age or physical or mental condition of persons driving the vehicle; or

…

shall, as respects such liabilities as are required to be covered by a policy under section 6(1)(b), be of no effect:

Provided that nothing in this section shall require an insurer to pay any sum in respect of the liability of any person otherwise than in or towards the discharge of that liability, and any sum paid by an insurer in or towards the discharge of any liability of any person which is covered by the policy by virtue only of this section shall be recoverable by the insurer from that person.” (Emphasis added)

8.A similar clause (“the Clause”) exists in the policy taken out in the present case.  The relevant clause reads:

“The Company will not (be) liable under this Policy in respect of any accident, loss, damage or liability caused, sustained or incurred whilst the Motor Vehicle is being driven by, or is in the charge of , or is under the control of the insured or insured Driver: (b) when the proportion of alcohol in his/her breath, blood or urine exceeds the prescribed limit as stipulated in Section 2 of the Road Traffic Ordinance (Cap. 374) as may be amended from time to time or any legislation which replaces the same….”

9.Mr Ryan Law, counsel for the Appellant, submits that the decision in Law Wing Fai applies equally to the policy in the present case.

10.Mr Law submits that although the Appellant pleaded guilty to Charge 2 in the Court below, the basis of the conviction of Charge 2 against the Appellant was stated in paragraph 6 of the Brief Facts, which reads:

“During the course of enquiry by (PW4), D could not provide a valid insurance covered D drove Medium Goods Vehicle JU9050 with alcohol concentration in blood above the prescribed limit.”

11.Mr Law submits that it is admitted that at the material times there was a valid insurance policy covering the Appellant in driving the vehicle in question. The Clause is largely similar to the clause under complaint in Law Wing Fai. As the Clause amounts to a restriction to the driver’s physical condition, section 12(1)(a) of the Ordinance applies and the Clause is of no effect as respects such liabilities as are required to be covered by a policy under section 6(1)(b).  It follows that the Appellant would not be guilty of Charge 2 as the facts admitted by the Appellant did not amount to the offence of using a vehicle without third party insurance.  Mr Law submits, for the above reasons, the Appellant’s guilty plea should be rendered a nullity.

12.Mr Law submits, alternatively, that the Brief Facts merely stated that the Appellant could not provide a valid insurance policy which covered the Appellant drove the vehicle in question with alcohol concentration in blood above the prescribed limit, the facts did not state that the Appellant there was no valid policy in respect of third party risks as complied with the requirements of the Ordinance.  Given the decision of the Court of Appeal in Law Wing Fai, the policy in the present case was in force at the material time.  The reference in the Brief Facts to the Appellant’s failure to provide a valid insurance which covered the Appellant’s driving of the vehicle in question with alcohol concentration above the prescribed limit is equivocal as to guilt.  Hence the Appellant’s guilty plea should be rendered a nullity.

13.Mr Kuan, for the Respondent, with all his fairness, does not seek to uphold the conviction in respect of Charge 2.

14.In my judgment, the facts that the Appellant admitted before the Magistrate do not support Charge 2 in the light of the decision of the Court of Appeal in Law Wing Fai.  Section 12(1)(a) renders the restriction ineffective as the restriction is based on the proportion of alcohol in a driver’s breath/blood/urine, and hence it is clearly a restriction by reference to the driver’s physical condition and thus, falls with section 12(1)(a).

15.I find that the guilty plea entered by the Appellant to Charge 2 before the Magistrate was a nullity.

16.I find that there was a policy in force in respect of third party risks as complied with the requirements of the Ordinance.

17.I allow the appeal against conviction.  I quash the conviction on Charge 2 and set aside the sentence thereof.

Mr Ryan Law, instructed by Tam, Pun & Yipp, for the appellant

Mr Franco Kuan, SADPP (Ag) and Mr Marcus Lee, Public Prosecutor of Department of Justice, for the respondent