Wong Mo Chung v. The Queen
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CACC000246/1969 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 246 OF 1969 -----------------
Coram: Williams, J. Date of Judgment: 6 June 1969 ----------------- JUDGMENT ----------------- 1. The appellant was convicted for using a private car on a road for the carriage of passengers for hire or reward contrary to Regulation 29(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations and for driving the said car without third party insurance contrary to section 4(2) of the Motor Vehicles Insurance (Third Party Risks) Ordinance Cap. 272. 2. He was fined $50 on the first charge and $150 on the second and disqualified from driving private cars for 12 months. 3. The evidence on the first charge of carrying passengers for hire or reward was given by one of two constables who have been specially detailed to watch for this type of traffic offence. It was not disputed that at Mei Foo Village, Shek Kip Mei, at 11.20 a.m. on the 1st February 1969 the constables received a lift from the appellant in a red private car. P.W.1, Constable NG, said the car was parked at Lai Wan Road, Shek Kip Mei, and had been stationary for some time and that it was a private car. The appellant pointed to them asking if they wanted a car and P.W.1 replied 'yes'. He says the appellant opened a car door, they got in and he asked where they wanted to go and was told to take them to Tai Hang Tung Resettlement Estate, Block 5. He says that the journey took from 11.20 a.m. to 11.35 a.m., that he told the appellant where to stop and the appellant then said '$3', which sum he paid to the appellant. 4. Mr. Gunston for the appellant cross-examined to the effect that there were four individuals and not only two, that the appellant recognized P.W.1 as a constable and asked where he was going, that P.W.1 relied 'Kowloon Chai', that the appellant said it was on his way and he could give them a lift, that as they got out P.W.1 pressed $3 into the unwilling hand of the appellant who had already said there was no charge, and then the constable, P.W.1, improperly charged him for carrying passengers for hire or reward. 5. Needless to say P.W.1 denied all those allegations which amounted to an assertion that the police evidence was fabricated and false. 6. The other constable was sworn and tendered for cross-examination but the defence declined the opportunity of cross-examining him. 7. The appellant's unsworn statement was on the same lines as the foregoing cross-examination. His Certificate of Insurance, Exhibit D-1, is the usual Third Party Certificate which excludes cover if the vehicle is being used for the carriage of passengers for hire or reward. 8. During cross-examination P.W.1 agreed that he had reported a number of such cases, he agreed that it was a lot to remember, and agreed that on the evening prior to the trial he had refreshed his memory from notes in his notebook. Mr. Gunston asked to see the notebook and the constable, who had not referred to it whilst giving his evidence before the magistrate, refused to hand it to Mr. Gunston. The latter in his concluding address to the magistrate submitted that P.W.1's credibility was dubious having regard to his refusal to produce his notebook. Now with regard to that argument it may be pertinent to observe that the prosecution had tendered another constable for cross-examination, and that the defence had refused that opportunity of checking on the consistency and credibility of P.W.1. 9. The magistrate described P.W.1 as a clear, logical, truthful witness, unshaken by a severe cross-examination. 10. The first two grounds of appeal are that the magistrate was wrong in accepting the evidence of P.W.1 after he had refused to produce his notebook and that his oral evidence in court was secondary evidence of a written document, namely his notebook. 11. In support of those two grounds Mr. Gunston referred to Doe v. Perkins(1) as quoted in paragraph 1382 of Archbold. That particular case is not concerned with the use of police notebooks to refresh memory. Rather it refers to the acquisition of knowledge from a document followed by an endeavour to adduce it as oral evidence. In other words it refers to an endeavour to substitute one's recollection of a document for the document itself. That is considerably different from recording one's own personal observations in a notebook as an aid to memory on an occasion when those observations are to be orally recounted. 12. Mr. Gunston also referred me to R. v. Bass(2) in which an appeal was allowed and a conviction quashed because the court had refused to allow a jury to see the notebooks of two police constables. That particular case was very different from the instant case. In R. v. Bass(2) an accused had made statements confessing his guilt, and the defence was that those statements had not been made voluntarily. The constables who recorded the statements read them out from their notebooks by way of evidence and defence counsel actually examined the notebooks. The constables had allegedly recorded the same statements; one of them allegedly did so at the time that the accused made a statement; the other constable had allegedly recorded a statement from memory an hour after the accused had uttered it. In the instant case the constable, P.W.1, did not refer to his notebook in court. There is a statement in Archbold, 36th Edition, paragraph 1390 at page 532, that if a witness has not referred to his notebook during his evidence but admits in cross-examination that he did make a note, he cannot be compelled to produce it. 13. Recording what a third party is saying is very different from recording one's own observations; and it is almost invariably the practice for a lengthy statement by an accused to be read out verbatim in court. However, in regard to other matters recorded in a notebook the permission of the magistrate must be obtained before a witness or a constable may refresh his memory from notes that he has taken. Permission may be refused for some very good reason; for example the item being of such significance that it could not or should not have been forgotten by the witness. The contents of the notebook are not in evidence and the defence cannot demand that it be put in as evidence if it has never been produced. The defence may of course request the magistrate to order production of the notebook, for example where a constable is giving detailed evidence of the movements of several individuals over long periods of time covering several days of intermittent observation. If he had learned his notes off by heart the magistrate may feel it is necessary to see the notes and to ascertain how reliable the witness is by permitting him to be cross-examined with reference to the notes that he has made over a period of several days. In the instant case there were no lengthy and complicated details of significance to recollect. Although P.W.1 I had observed other offenders on other occasions and had over a period of time reported a number of alleged offences, he was not being required to give evidence of all those cases at one time; he was simply giving evidence of one of those cases. In the instant case the constable did not need permission to refresh his memory in court because he had refreshed it outside the court from his notebook. There was therefore no need for him to refer to it in court. In any event the defence made no request to the magistrate that he direct the constable to produce his notebook for inspection and possible cross-examination. 14. I see no merit in those grounds of appeal. 15. The third ground of appeal is that even accepting the prosecution evidence of the receipt by the appellant of $3 from the two policemen, it still does not amount to using the vehicle for hire or reward to such an extent that the statutory requirements relating to third party insurance have not been complied with. 16. In support of that ground Mr. Gunston referred to Connell v. Motor Insurers Bureau(3) as an authority for stating that one isolated occasion of taking money for the carriage of a passenger in a private car does not mean that that particular user was uninsured. In that case a passenger was carried on a specified journey in a private car for an agreed fee of 10s. There was an accident due to the driver's negligence and the paying passenger was insured. The question arose as to whether the passenger was uninsured under the terms of the driver's policy and if he were not, was the driver committing an offence in that the passenger should have been covered? 17. Lord Denning M.R. in his judgment said that the provision relating to compulsory insurance for third parties were contained in section 203 of the Road Traffic Act 1960, but subsection (4) provided an exception in that the person using the motor vehicle was not compelled to insure against injury to passengers. However, there was a proviso to that exception which is that passengers must be insured "in the case of a vehicle in which passengers are carried for hire or reward". His Lordship's view was that the proviso referred to taxis, coaches, private hire cars, etc., but it did not include a private car in which a person was given a lift in return for some payment. He said that if private cars giving lifts were to be included in the proviso there would be no point in including in that proviso the words "in the case of a vehicle in which" and they could have been omitted. 18. In order to follow his Lordship's reasoning I set out the relevant portions of subsection (4):
19. His Lordship stated that private cars were not bound to insure their passengers although on isolated occasions they may give a man a lift for monetary reward; nor was the owner guilty of a criminal offence by failing to insure his passenger on such an occasion. 20. In coming to that conclusion the Court of Appeal approved the judgment and observations of Branson, J. who had expressed the same views in Wyatt v. Guildhall Insurance Company Ltd.(4). His Lordship referred to it as an obiter dictum which textbooks had treated as an authority for stating that unless there was a habitual carrying for hire or reward it was not necessary under statute to hold a policy covering passenger risks. He pointed out that 23 years later Parliament had not seen fit, when re-enacting that portion of the law in the Road Traffic Act of 1960, to alter that settled law. 21. In the course of this appeal both appellant and respondent referred me to Tse Wan Yuen & Tam Tsuen Ho v. Reg.(5) which does not yet appear in published reports, which was heard by the Full Court and which concerned a conviction for using a dual purpose vehicle without third party insurance. That appeal turned on the question as to what extent the onus of proof lay, in charges of using a car without third party insurance, upon the accused to show that he was insured for the use in question and to what extent, if any, the prosecution have to establish a prima facie case or inference of non insurance. 22. It illustrates the difficulties facing courts in determining to what extent the prosecution are relieved from proving a negative averment which is peculiarly within the knowledge of the accused. The Full Court reluctantly followed its earlier decision in R. v. Leung Wan(6) where it was said in page 541:
and at page 542:
Huggins, J. at page 3 of Tse Wan Yuen & Tam Tsuen Ho v. Reg.(5) in commenting on the decision in the case of R. v. Leung Wan(6). driving
Mills-Owens, J. in his dissenting judgment in Tse & Tam v. Reg.(5) pointed out that the Full Court might have noted that the prosecution would not be presented with an impossible or even difficult prosecution had it been held that they should present at least a prima facie use of non insurance, for example by requiring production of an insurance certificate and then adducing evidence to the effect that none was produced at all, or that the certificate which was produced did not cover the use being made of the motor vehicle at the time in question or that it did not cover the particular driver in question because he was not in the class of drivers indicated in the policy. In Tse & Tam Reg.(5) the prosecution case was that the dual purpose vehicle was carrying passengers for hire or reward. The appellants did not give evidence before the magistrate but simply tendered a certificate of insurance showing that the policy did not cover use of the motor vehicle whilst carrying passengers for hire or reward. It was no doubt on the evidence, that is, that the dual purpose van was carrying passengers for hire or reward, that the magistrate had found that the user was not covered by insurance. 23. However, a further clause in the certificate of insurance secures the class of persons entitled to drive included persons in the employ ...(illegible) of the policy holder provided they were driving on his order or with with his permission, or on those occasions when the dual purpose vehicle was being used for pleasure that the person driving should have the policy holder's permission, etc. Blair-Kerr, J. pointed out at p.22 of the typed judgment in Tse & Tam v. Reg.(5) that the appellant (driver) had not adduced evidence that he was in the employ of the policy holder or that he was driving the dual purpose van on his orders or with his permission, or that he was otherwise within the class of persons entitled to drive that vehicle. He therefore concluded that the appellant (driver) had not discharged the onus of showing he was within the terms of the policy; in other words as an accused person he had not proved that he was covered by the insurance policy. In so holding the learned judge was no doubt keeping strictly to the earlier Full Court decision given in R. v. Leung Wan(6). 24. It is perhaps unfortunate that the burden falls so heavily upon an accused person in such cases. As Huggins, J. stated, it is inconceivable that the prosecution would make no enquiries as to whether the appellant was insured before deciding to prosecute him on an allegation that he was uninsured. I would respectfully concur with that observation and I feel that it would always be desirable to tender evidence that investigations of that nature had been made. It is possible that in that case, that is in Tse & Tam v. Reg.(5), the police had approached the policy holder; it is possible that he had said the appellant (driver) was his employee and that he was driving the van on his orders. However, because the prosecution were relying upon the actual user of the motor vehicle viz. carriage of passengers for hire or reward, the prosecution may have felt that it was not necessary to mention those facts, which turned out to be so very important on the occasion of the appeal. Likewise the accused, knowing that the use alleged was carrying passengers for reward, thoroughly concentrated on rebutting or discrediting that evidence in the course of cross-examination, and never gave heed to the possible issue as to whether he had permission to drive, or whether he personally came within a class of persons entitled to drive under the policy and which perhaps he could have proved with ease; perhaps he was aware that the police had seen the policy holder and that they had been told that he did in fact have permission to drive. In such circumstances the accused may have felt there was no point in giving evidence with regard to matters that the prosecution were fully aware of but were not concerned with. 25. If that is the position, and it may well have been, then it would be singularly unfortunate that the appeal should have turned upon an aspect of proof upon which evidence was not offered because it was regarded as being unnecessary in that it was not regarded as being in issue. 26. Be that as it may, the Full Court came to the conclusions in Tse & Tam(5) that in the circumstances, that is since the accused had failed to show that he was in the class entitled to drive the van it did not have to decide whether passengers were being carried in it for hire or reward. Hence it did not have to decide whether it was necessary to establish that it was an habitual carrying of passengers for hire or reward which was to be proved in order to require the driver to be insured for carriage of passengers. 27. Mr. Gunston for the appellant in the instant proceedings has argued that it is now a decision for this court. He submits that the evidence reveals only one instance of carrying passengers for hire or reward and therefore in accordance with the decision in Connell v. Motor Insurers Bureau(3) that it is not sufficient to justify a conviction for using a motor vehicle whilst uninsured, there must be proof of habitual using for this purpose. 28. In that connection I feel it is necessary to consider the evidence more closely. As accepted by the magistrate the evidence showed that the appellant had been parked for a while and that he was in the car. What was he doing? Was he idling the time away? Or was he waiting for something? What could he have been waiting for? The evidence shows that he pointed to the constable and asked if they wanted a car. It seems that he was waiting for someone who wanted a car. When they got in he asked "where to" indicating that he had been waiting for prospective customers and now that he had got them he was awaiting their instructions as to where he should take them. He took them to their destination and upon arrival stated his fee of $3 which was paid. 29. It appears to me that during the period he was parked the appellant was plying for hire. I am supported in that view by the judgment in Sales v. Leak(7) where it was said that a carriage plies for hire where two conditions are fulfilled as follows:
Pausing here it will be observed that the evidence of the prosecution showed that the accused was waiting and was soliciting persons with whom he had not had previous contact.
Pausing again it is clear that the appellant in the instant case was in possession of the car which was to carry the passengers. 30. Once the policemen had been dropped it is not unreasonable to infer that the appellant would be looking around for other passengers if he had not just been reported by the two police constables. A person in charge of a car who is plying for hire is not likely to cease plying for hire because he has earned $3. 31. I feel that one must draw reasonable inferences from the accused's behaviour and the surrounding circumstances. This was not a chance meeting with a motorist who happened to be going one's way nor was it one of several casual lifts given by pre-arrangement to passengers for some reward. There was nothing casual about it; the appellant was, on the evidence, seeking customers and making a business of hiring. In the circumstances I feel there can be no doubt that he should have been insured accordingly, that is for the carriage of passengers for hire or reward. As his certificate of insurance shows, the carriage of passengers for hire or reward was specially excluded from his insurance policy. Therefore he was rightly convicted. The appeal is accordingly dismissed.
6th June, 1969. Representation: D.B. Gunston for Appellant. M.J. Alexander c.c. for Respondent. (1) (1790) 3 T.R. 749. (2) (1953) 1 Q.B.D. 680 (3) The Times Newspaper of May 8, 1961. (4) (1937) 1 A.E.R. p.792 (5) Criminal Appeal No. 637 of 1968 (6) 1964 H.K.L.R. p.530 (7) (1922) 1 King's Bench 553 pages 557 and 558. |