Chan Chi-nam v. The Queen

CACC000284/1970

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 284 OF 1970

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Coram: Rigby, C.J.

Date of Judgment: 4 August 1970

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JUDGMENT

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1. The appellant pleaded guilty to the charge preferred against him of driving a motor vehicle, to wit, a dual purpose vehicle registered as a private car and goods vehicle, withoug having in force in relation to its user the requisite policy of Third Party Insurance.

2. The circumstances of the case were that the appellant, according to the facts put before the court, accosted two persons who were in fact police constables in plain clothes, asked them if they wanted a lift and when they said they did, he drove them to the destination they had mentioned and demanded and received from them a small sum of money in consideration for the drive. Upon conviction he was fined the sum of $350 and $10 costs. The magistrate, furthermore, imposed a disqualification from driving any class of vehicle for a period of 18 months. It is to be said that the appellant had one previous conviction of a similar nature, as recently as 1967, in respect of using a private car for hire or reward, again, without having a Third Party Policy Insurance for that purpose. In addition to that, he had nineteen traffic convictions over the last three years.

3. An application was made to the learned magistrate to review his order in respect of the disqualification.

4. The main ground for that application appears to have been, according to the evidence which was put before the learned magistrate by the appellant, that at some stage in 1968 he had read in a newspaper a report of some court case which stated that dual purpose vehicles could be run for hire or reward. He further said that at that time he had entered into an agreement with a Mr. Fong who was the owner of this dual purpose vehicle. The effect of that agreement was that he should drive the vehicle, that Mr. Fong should receive 70% of the takings and he would receive 30%. He stated that at the time he had enquired from Mr. Fong as to whether the vehicle was covered in respect of Third Party Insurance and Mr. Fong had not only told him that it was, but had shown him a Third Party Certificate of Insurance. That Third Party Certificate of Insurance was in fact produced before the court. It is clear from that policy, which is the usual Certificate of Insurance, that the vehicle was to be driven as a private car and that use of the vehicle for purposes of hire as roward by the carriage of passengers was expressly excluded from the terms of the policy.

5. Mr. Lawrence Leong, in support of his argument that the order of disqualification be set aside, has drawn my attention to the case of Ng Che-foon and Another v. The Queen.⁽¹⁾ In that case the learned judge, Mills-Owens, J. did in fact hold that in respect of the charge brought under regulation 29(2) which dealt with dual purpose vehicles, that that regulation, which prohibited the carriage of passengers for hire or reward in any motor vehicle which is registered as a dual purpose vehicle for use as a private car and as a goods vehicle, was bad. It is unnecessary to consider the reason as to why he held that that regulation, or rather the charge brought under that regulation, was bad. It is sufficient to say that the learned judge took the view that the lawful user of motor vehicles depended on the class, or sub-division of a class, in which that vehicle has been registered: that there had in fact been no sub-division made in respect of dual purpose vehicles requiring them to be registered in a particular class; that in consequence any regulation which purported to prohibit the carriage of passengers for hire or reward in any motor vehicle registered as a dual purpose vehicle for use as a private car and as a goods vehicle was accordingly ultra vires and invalid. The learned judge also did say, it is true, at the conclusion of his judgment that "the remaining charges relating to third party insurance are dependent on the validity of the charge under regulation 29(2) and accordingly the appeal succeeds also on those charges". One of those charges, apparently, was a charge similar to the charge laid in the present case under section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. However, in a later Full Court decision in the case of Chiu Koon-kwong v. The Queen⁽²⁾ the Full Court, of which Mills-Owens J. was himself a member, expressly stated that - and I quote from the judgment -

"In our view the validity of a charge laid under s. 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance does not, as a matter of course, depend on the validity of any other charge founded on the same facts and laid under another statutory provision."

Quite clearly, in my view, the sole question in this case was whether or not the policy of insurance covered the use of this particular vehicle by the appellant for the carriage of passengers for hire or reward. Equally clearly, it is manifest from the Certificate of Insurance that it did not so cover such carriage. Quite clearly, therefore, in my view, on this charge the appellant was properly convicted.

6. Mr. Lawrence Leong has submitted that here the appellant did make some enquiries as to whether or not the vehicle in which he was to have a share in its running, was properly insured, that he was told it was properly insured and that in those circumstances it would be unfair to impose upon him any period of disqualification, and that there were special reasons which would justify the learned magistrate in not imposing this disqualification. The learned magistrate took the view, and I agree with him, that the enquiry made by the appellant was in no way sufficient to satisfy him that he was entitled to drive his vehicle for the purpose of picking up passengers for hire or reward in the circumstances of the case, and that the enquiries he had made as regards Third Party Insurance were wholly inadequate. As I say, I entirely agree with that view.

7. In my view, the period of disqualification imposed by the learned magistrate was a perfectly proper one and a period of 18 months, bearing in mind a previous conviction for a similar type of offence, was in no way excessive. The learned magistrate was asked to limit the disqualification to the driving of vehicles of the kind which the appellant was in fact driving at the time, namely, dual purpose vehicles. The learned magistrate took the view, and I think correctly, that the category of vehicle as "dual purpose vehicle" no longer existed, having been repealed by Ordinance No. 32 of 1969 and for that reason he was not prepared to impose a restricted disqualification. However, it would appear that under regulation 23B of the Road Traffic (Driving Licences) Regulations the holders of certain private licences are deemed to be the holder of licences to drive public light buses and private light buses and that their driving licences can be so endorsed so as to cover the driving of dual purpose vehicles purporting to be registered for use as private cars and as goods vehicles.

8. Crown Counsel concedes that in the circumstances of this case it would not be improper to limit the disqualification imposed by the magistrate as to restrict the disqualification imposed by the magistrate to the driving of public light buses and private light buses.

9. The appeal will be dismissed save that the order of disqualification for 18 months will be varied and restricted to the driving of public light buses and private light buses only.

Representation:

L. Leong (S.F. Sun & Co.) for Appellant.

Stapp C.C. for Crown/Respondent.

Judgment delivered.

(1) 1968 H.K.L.R. p. 439

(2) 1969 H.K.L.R. p. 254