The Queen v. Cheung Chak-sing
Read the full judgment text of CACC 302/1984 on BabelCite. This Court of Appeal judgment.
1. The appellant was convicted on the 17th April 1984 by a Magistrates' Court of driving whilst disqualified c./s. 25 of the Road Traffic Ordinance - Cap. 220 ("the Ordinance") and sentenced to pay a fine of $2,000 and to one month's imprisonment, suspended for 12 months. He was disqualified from driving all classes of motor vehicles, also for 12 months. From the conviction he now appeals to this Court.
Cited by 1 case
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CACC000302/1984
Road traffic - driving while disqualified A charge which avers that a person drove while disqualified "on divers dates" between two dates, is bad for duplicity, but no miscarriage of justice had occurred. The Commissioner for Transport is the only authority empowered to issue licences to drive on the roads of Hong Kong (.S. 5 of the Road Traffic Ordinance and the Road Traffic (Driving Licences) Regulations) and therefore if a person is disqualified from driving all classes of vehicles (government vehicles are a class under reg. 3(j) of the Regulations) he may not drive even if he is in possession of a government driving permit issued under Government General Regulations. Decision of magistrate affirmed
Coram: Fuad, J.A. (Sitting as an additional Judge of the High Court) Date of hearing: 19th June, 1984 Date of judgement: 25th June, 1984 ___________ JUDGMENT ___________ Fuad, J.A. : 1. The appellant was convicted on the 17th April 1984 by a Magistrates' Court of driving whilst disqualified c./s. 25 of the Road Traffic Ordinance - Cap. 220 ("the Ordinance") and sentenced to pay a fine of $2,000 and to one month's imprisonment, suspended for 12 months. He was disqualified from driving all classes of motor vehicles, also for 12 months. From the conviction he now appeals to this Court. 2. It was an unusual case. The appellant was a government driver who had been issued with a document called a "HONG KONG GOVERNMENT DRIVING PERMIT" on the 22nd March 1982. 3. He also had what I will call an ordinary driving licence, valid until the 6th April 1983, covering the following classes of vehicles - 1 (private cars), 2(goods vehicles under 2½ tons), 8(goods vehicles over 2½ tons) and 16(government owned vehicles). 4. It was admitted that on the 21st April 1983 the appellant had pleaded guilty to three offences (including driving a taxi without a valid licence and driving whilst uninsured) and had been fined and disqualified from driving all classes of vehicles for one year from that date. 5. The particulars of offence of the charge with which we are concerned was worded thus -
6. It was conceded by Mr. Halley for the Crown that the appellant's complaint that the charge was bad for duplicity was well founded, although he submitted that in fact no miscarriage of justice had occurred. I will return to the effect of the error made in drafting the charge later but where the offence is not a continuing one, an averment which charges an offence as having been committed "on divers dates" is patently bad for duplicity (ARCHBOLD 41st Edition, 1 - 57). 7. Mr. Halley also had to concede that since the information for the present charge was laid on the 6th April 1984, any occasion upon which the appellant might have driven whilst disqualified before the 6th October 1983 could not be the subject of a prosecution by virtue of the six months' time limit imposed by S. 26 of the Magistrates Ordinance, Cap. 227. And so the appellant should have to face allegations relating only to the period the 6th to 10th October 1983. 8. Another ground of appeal was that "there was no evidence that the Hong Kong Government Driving Permit was not a document licensing the appellant to drive government vehicles and the learnod Magistrate should therefore have found that it was doubtful if the charge had been proved". This point was raised at the trial and in his reasons the Magistrate made this finding -
9. I have no doubt that the Magistrate was right on this point. Section 5(1)(a) of the Ordinance gives the Governor in Council power to make regulations to provide for the licensing of drivers. Section 5(4) of the Ordinance provides that no person shall drive a vehicle on a road unless he is the holder of a driving licence in respect of a vehicle of the same class as the vehicle he is driving. In S. 2 of the Ordinance, the expression "driving licence" is defined as meaning "a licence issued in accordance with the provisions of regulations made under Section 5"; such regulations have been made - the Road Traffic (Driving Licences) Regulations. 10. The Hong Kong Government Driving Permit held by the appellant states that it is "issued in accordance with Government General Regulations". Mr. Halley was not able to refer me to the particular regulation in question. What is perfectly plain, however, is that the only authority empowered to issue licences to drive on the roads of Hong Kong is the Commissioner for Transport (see reg. 6 of the Road Traffic (Driving Licences)Regulations). And so once the validity of a driving licence is affected by an order of disqualification from driving all classes of vehicles, a person may no longer drive during the relevant period, even if he is in possession of a Hong Kong Government Driving Permit, for "government vehicles" are expressly made a class under reg. 3(j). 11. The evidence led by the prosecution in seeking to prove that the appellant had beer driving whilst disqualified was given by two foremen of the New Territories Services Department. Mr. CHEUNG Po-kwok was in charge of assigning work to drivers from the 21st April to the 1st June 1983 and Mr. HO Chi-sum from the 1st June onwards. Both said that the appellant was the driver of government vehicle AM4624. Mr. Ho said that the appellant had ceased to be one of their drivers as from the 10th October 1984 when, it appears, the department first learned that the appellant had been disquealified. Since we are no longer concerned with the period covered by Mr. Cheung's evidence, Mr. Ho's testimony is important. He said that when he had told the appellant he could no longer drive, he had said ''It is really that I can't drive". He produced two log books stamped with the number AM4624. He said he knew that the appellant had been driving "by the log books", for they contained entries for each day the appellant had taken the vehicle out. The defendant had also signed in on retorting for duty and taken the keys of the vehicle. He added : "He would take (the keys) from my office. I saw him take the key and go with the vehicle. He drove it away. I don't mean I witnessed him driving away every day. I saw him when he walked past my office to the vehicle. Yes, I saw him some days and not others. No I did not see where he went with the vehicle. I last saw the vehicle in the depot. Every day I checked the depot and all the vehicles had been taken onto the road. None remained in the depot. " He produced the log books which are now before me. The only cross-examination addressed to him related to the Government Driving Permits. 12. Mr. Gunston (who also represented the appellant in the lower court )urged upon me the proposition that since the log books were in Chinese and no official translation had been produced, they should have been ignored by the Magistrate, and I, too, should ignore them. He cited a number of authorities to me on the subject. 13. Certainly the name of the driver is in Chinese characters, as are the "details of journey" on each right hand page. But there is much that is in English. On the left hand pages of the log books, there are the following columns in English : Date - time (out) - time (in)- milometer (out) - milometer (in) - miles run. The relevant log book shows that-
14. The apellant elected not to give evidence at the trial. He was, of course, fully entitled to take that course and let the prosecution prove its case if it could. But there was unchallenged evidence that the appellant was the driver of AM4624 from the 21st April to the 10th October 1983. There was no objection to the production of the log book to which I have referred and it seems to me to be wholly unrealistic to ignore its English contents regarding the 6 - 10th October 1983. Everyone knows what a log book is, and as a matter of common sense it must be very cogent prima facie evidence that the vehicle was being driven by its only driver on the occasions recorded. It would have been so simple for the appellant to have rebutted this prima facie evidence. 15. In his reasons the Magistrate found that the evidence of the prosecution witnesses proved that the appellant had driven government vehicles on various occasions between the dates specified in the charge. This was because neither he, nor the prosecutor (who was responsible for the correctness of the charge), nor the defendant's solicitor, had spotted the duplicity. But I have no doubt at all that on the state of the evidence at the end of the trial, had the Magistrate directed his attention only to the 6th, 7th, 8th and 10th of October 1983, he must have found that the appellant had driven on those dates, while he was disqualified. 16. There was so much wrong with the charge sheet that I have carefully considered whether the appeal should be alloyed on that ground alone. If an ordinary driver had been facet with a charge covering some 200 days the position might well have been different, but here was a driver who kept a log book and in all the circumstances I am fully satisfied that he was neither prejudiced nor embarrassed, and no miscarriage of justice has occurred. 17. Before taking leave of this case, I wish to state that I can well understand confusion arising in the mind of an ordinary driver over the status of a Government Driving Permit, and I hope the relevant authorities will give some attention to the matter. I would interpolate here that it may well be that the Magistrate appreciated this when he imposed comparatively lenient penalties. Perhaps the Government Driving Permit should contain an endorsement that it is only valid while a valid driving licence issued under the Road Traffic Crdinance is in force. And a government driver might be asked to sign something on being issued with a permit to acknowledge that he realizes that it will have no validity if a Road Traffic Ordinance driving licence is not also held. 18. For the reaons I have given, I dismiss the appeal.
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