Cheng for Kar v. The Queen

CACC000316/1972

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 316 OF 1972

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Coram: Leonard, J.

Date of Judgment: 12th July, 1972

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JUDGMENT

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1. This is an appeal against conviction and sentence on charges of using a private car for hire and driving without third party insurance. The car was insured on the date in question but the policy contained the usual clause that the vehicle was not to be used for hire or reward.

2. The incident giving rise to these proceedings occurred at 7.15 p.m. on the 10th of March 1972 on Choi Hung Road, an extremely busy area of Kowloon. A police constable PC 6887 stood at the side of Choi Hung Road, alone, acting as if he was waiting for transport. An orange-coloured private car AK 3844 stopped in front of him and the appellant asked him if he wanted a car. "When the constable replied in the affirmative, the appellant opened the near side rear door for him and the constable boarded the car and told the appellant to go to Prince Edward Road near Nullah Street. The constable sat in the rear in the middle of the seat. After 15 minutes the car arrived at the destination directed by the constable and the appellant then said, "Thanks, $3.00." The constable took out $3.00, passed it to the appellant and forthwith grabbed him. The truth of these facts was clearly accepted by the magistrate and no reason susceptible of logical analysis which would indicate that the learned magistrate was in any way wrong in accepting these facts has been advanced. I accordingly regard myself as bound by them.

3. Once these facts are accepted as proved there was to my mind quite sufficient to indicate that the appellant was using the car for the business of running a private car for hire. This, on the evidence, might have been the first time he did so but the concomitant circumstances indicate to me with abundant clarity that this was not an isolated incident. That he asked the constable if he wanted a car, opened the near side rear door for the constable, went to the destination indicated by the constable when the evidence did not suggest that he himself wanted to go to that destination nor that he knew the constable previously, that the constable sat in the rear seat and that on arrival at destination the appellant asked for and accepted a fare all lead irresistibly to the conclusion that the appellant was carrying on business as a pak pai driver. I appreciate that the same facts in another jurisdiction might not lead to the same irresistible conclusion but I would be closing my mind to the realities of life in Kowloon, of which I have personal day to day experience both on the magisterial bench and as a resident, if I did not find myself compelled to it. I consider I must take judicial notice of these realities.

4. Mr. Downey for the appellant was prepared to argue, notwithstanding the cases of CHAN Kai-lap ⁽¹⁾ and others of like tenor, that if I accepted the behaviour of the appellant as an isolated incident, then because of the decision of the House of Lords in Albert's case ⁽²⁾ the appellant was entitled to succeed, there being no evidence that the appellant was engaged in carrying on a business or systematically using the car as a private car for hire it being implied in his argument that the Full Court was bound by decisions of the House of Lords and that Albert's case rendered the decisions of the Full Court inapplicable. Mr. Caird for the Crown was not prepared to concede that the Full Court of Hongkong was bound by decisions of the House of Lords and pointed out that the decision of the Privy Council in Australian Consolidated Press Ltd. v. Uren ⁽³⁾ called in question my cherished conviction that the Full Court was so bound. My conclusion on the facts found by the learned magistrate render it unnecessary for me to walk alone on these treacherous heights or to refer this matter to the Full Court for, assuming that Albert's case does apply in the Colony (the assumption most favourable to the appellant) the behaviour of the appellant takes him outside the exception created by Albert's case so that the insurance policy was avoided by the manner in which the vehicle was used. I accordingly dismissed this appeal against conviction.

5. The appellant also appealed against sentence having been disqualified from driving all vehicles for a period of eighteen months. He had two previous convictions for similar offences. Disqualification for a period of at least one year is mandatory (sec. 4(2) Motor Vehicles Insurance (Third Party Risks) Ordinance Cap. 272). In my opinion this section requires disqualification in respect of all vehicles. The offender is to "be disqualified for holding or obtaining a licence to drive a motor vehicle". I appreciate that subsection (2)(b) lays down that "a person disqualified by virtue of a conviction under this section or of an order made thereunder shall for the purposes of the Road Traffic Ordinance be deemed to be disqualified by virtue of a conviction under the provisions of that Ordinance". This provision does not, as I read it, leave it open to a magistrate to impose a disqualification limited to a certain class of vehicles as he might do for an offence under the Road Traffic Ordinance. Therefore, in view of the appellant's record, the action of the learned magistrate in deciding to disqualify him in respect of all vehicles for a period of eighteen months cannot be regarded as excessive or wrong in principle. Disqualification of a professional driver is a severe punishment, indeed it is one which may lead to more serious crime than offences against our Road Traffic legislation. Such questions are, however, for consideration by the legislature and are not for me. Disqualification was compulsory and that imposed disqualification for eighteen months was correct for a third similar offence. The appeal is dismissed.

12th July, 1972

Representation:

Downey assigned for appellant.

Caird for respondent.

Oral judgment reduced into writing.

(1) 1969 HKLR463

(2) 1971 3 WLR 291

(3) 1969 LA. C 590