Lin Chun Ying v. The Queen

CACC000162/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO.162 OF 1968

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Coram: Huggins, J.

Date of Judgment: 18 November 1968

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JUDGMENT

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Huggins, J: The appellant was charged before the magistrate with an offence of unlawful carriage of passengers in a motor vehicle for hire or reward and a second offence of driving a motor vehicle on a road without cover against third party risks. He appeals against conviction.

2. At the hearing I allowed the appeal against the conviction on the first charge for the same reasons as those I gave in Criminal Appeal 112 of 1968. The sentence was quashed and the fine was to be repaid. Counsel for the appellant submitted that the second charge was linked with the first and that the conviction on that charge must likewise be quashed. I was quite satisfied that the second charge did not necessarily fall with the first. The fall of the first charge was not due to there being no evidence of driving for the carriage of passengers for hire or reward but to a defect in the current registration procedure. However, counsel went on to argue that there was no evidence that the appellant was driving without proper cover against third party risks.

3. The evidence for the prosecution was that the appellant was driving a van and that he was carrying in it a number of persons who each paid to him a sum of 50 cents. One of the passengers said that when he boarded the van the appellant asked him for money, although not specifying the amount. The other passenger merely tendered the money and it was accepted. A police officer gave evidence that in the presence of the appellant all the passengers stated that "they paid 50 cents to the driver to travel in this vehicle".

4. The only issue of fact raised by the defence appears to be as to the reason for the payments which were made. The appellant says that he took the money not for the passengers to travel in the van but for the carriage of their goods. His evidence is that all carried either a brief case or parcels or packages, and the submission on his behalf is that these constituted "goods." He produces a certificate of insurance which shows that the van was covered generally by insurance at the date of the alleged offence. The certificate contains the following condition:-

The contention of the appellant amounts to this, that he was in business as a carrier of goods, that the hire or reward which he received was for the carriage of goods and not for the carriage of passengers, and that in so far as he used the van for the carriage of passengers ...(illegible) was otherwise than for hire or reward and was in connection with his business of the carriage of goods.

5. Counsel for the appellant rightly says that the onus of proving that the hire or reward paid was for the carriage of the passengers was on the Crown. The magistrate, he said, in effect threw the onus on the appellant and required him to explain why money was collected from them - he said:

"There is absolutely no evidence that the appellant ever charged any of the passengers for the carriage of goods alone."

What I think he must have meant by that was that, in the absence of any evidence as to what was being charged for, it was reasonable to assume that the charge was for the carriage both of the passengers and of their goods.

6. A carrier of passengers may or may not charge extra for the carriage of their goods and a carrier of goods who permits goods to be accompanied by the owner or his agent may or may not charge extra for the carriage of the passenger. In every case it seems to me one must look at the whole of the evidence and decide whether it is possible to draw any inference as to the intention of the contracting parties. In the present case one starts with a vehicle which was apparently constructed for the carriage of 9 persons on seats. Although goods could also be carried that would at once suggest, in the absence of clear evidence to the contrary, that the vehicle was held out for the carriage of passengers. The passengers who were in fact carried stated to the police, as I have already mentioned, that they paid money to travel in this vehicle and this was not contradicted by the appellant at the time. The two passengers who were called as witnesses were not cross-examined as to any goods they may have been carrying but Lam Chi did indicate that he was holding something at the moment when he paid. The appellant said that Mahan was carrying a brief case.

7. Both before me and before the learned magistrate there has been argument as to the meaning of 'goods' as the word is used in the Road Traffic legislation. In my view this is of no assistance and serves only to confuse what is really a very simple case. What we are concerned with is the implied contracts of carriage made by the appellant with his passengers. If they were contracts for the carriage of passengers for hire or reward then it matters not whether the articles which they had with them were goods as so defined. It is enough to say that the contracts made with the two passengers who gave evidence before the magistrate were, in my view, clearly contracts for the carriage of passengers and not contracts for the carriage of their goods. It is unnecessary to attempt to lay down a test for fixing the dividing line between the two types of cases: the contracts in this case manifestly took the appellant outside the cover provided by the policy relied upon.

8. I have so far assumed that the appellant was covered by the policy when not carrying passengers for hire or reward. It was not argued to the contrary but on the evidence I do not think he was covered at all. The policy was issued in the name of Ho Shu but there was no evidence to show who Ho Shu was. There was nothing to suggest that this was an alias of the appellant, nothing to suggest that the appellant was in his employ or driving on his order or with his permission, and nothing to show that the vehicle was being used in connection with Ho Shu's business. It seems to me that the appellant has therefore failed to produce any evidence that he was covered against third party risks. Leung Wan v. Reg.(No.2)⁽¹⁾ lays down that the onus is on ...(illegible) person charged under section 4 of this Ordinance to adduce evidence that there is in force in relation to the use of the vehicle by him the cover required by the Ordinance. In my view he does not discharge that onus merely by adducing evidence that a policy exists unless he also shows that he is covered by its provisions. In the present case the appellant has not done that and he was rightly convicted.

9. For these reasons the appeal against conviction on the second charge is dismissed.

18th November, 1968.

Representation:

Mr. Willis (Hasting & Co.) for the Appellant

Mr. Alexander for the Crown

(1) 1964 H.K.L.R. 530