Cheung Chor-suen v. The Queen
Read the full judgment text of CACC 318/1982 on BabelCite. This Court of Appeal judgment was delivered on 30 April 1982.
1. The appellant in this appeal had pleaded guilty before a Magistrate to an offence against regulation 99(1) of the Road Traffic (Construction and Use) Regulations and section 8 of the Road Traffic Ordinance in that being the registered owner of a motor vehicle he used it on a road when it was in such a condition, because of a seriously corroded and weak body, that danger was likely to be caused to any person in the vehicle or on the road.
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CACC000318/1982
Regulation 99(1) of Road Traffic (Construction and Use) Regulations and sections 8 and 23(1)(a) of the Road Traffic Ordinance Gap. 220 --Vehicle with seriously corroded and weak body involved in accident when driven by friend of appellant. Appellant as registered owner charged with and pleaded guilty to using the vehicle on a road when it was in such a condition as to be likely to cause danger to any person in the vehicle or on road ---- Fined $500 and disqualified from holding driving licence for all vehicles for six months ---- Appeal against sentence. Held: (1) Court had no power to disqualify the appellant as sec 23(1)(a) only empowers court to disqualify for offences connected with the handling or manipulation of a vehicle in the process of driving it. (2) Charge was incorrectly framed. Since appellant was not driving the vehicle the charge should have been one of "permitting the use" not one of "using". However, no prejudice to appellant; charge amended accordingly pursuant to power conferred an appellate court by sec 119(d) of Magistrates Ordinance.
1982, No. 318 IN THE SUPREME COURT OF HONG KONG
________ Coram: Hon Macdougall, J. in Court Date: 30 April 1982 __________ JUDGMENT __________ Macdougall, J. : 1. The appellant in this appeal had pleaded guilty before a Magistrate to an offence against regulation 99(1) of the Road Traffic (Construction and Use) Regulations and section 8 of the Road Traffic Ordinance in that being the registered owner of a motor vehicle he used it on a road when it was in such a condition, because of a seriously corroded and weak body, that danger was likely to be caused to any person in the vehicle or on the road. 2. The summary of facts, which the appellant admitted in the court below, disclosed that the vehicle in question had been involved in an accident while being driven by a friend of the appellant. As a consequence of the accident the vehicle was detained and subjected to an examination by a Motor Vehicle Examiner. The examination revealed the defects stated in the information. In all other respects however the vehicle was found to be in a satisfactory condition. 3. On the basis of the Motor Vehicle Examiner's finding that the body of the vehicle was seriously corroded and weak, the learned Magistrate observed that it was "a rust bucket which might be described as an accident looking for a place to happen". He took the view that persons who put vehicles in such condition in use on public roads are highly culpable since they create a danger not only to the persons who drive them but also to other road users. In order to mark the displeasure of society at such behaviour the learned Magistrate observed that he proposed to impose a penalty that was undoubtedly severe. He fined the appellant $500 and disqualified him from holding or obtaining a driving licence for all vehicles for six months. It is against this sentence that the appellant appeals. 4. No doubt the learned Magistrate on seeing that sec. 8 of the Road Traffic Ordinance provides only for a fine of $500 and imprisonment for three months in the case of a first conviction for such an offence, purported to apply the provisions of sec. 23(1)(a) of the Ordinance in making the order for disqualification. 5. This provision reads as follows:
6. Since some doubt has been expressed by magistrates whether the words "in connexion with the driving of a motor vehicle" qualify both the words "any offence under this Ordinance" and the words "any offence under any regulation made thereunder" I take this opportunity to say that they plainly qualify both offences under the Ordinance and offences under regulations made under the Ordinance. 7. I now turn to a consideration of whether the learned Magistrate had power to order that the appellant be disqualified from holding or obtaining a driving licence. 8. The meaning and effect of the words "any offence in connexion with the driving of a motor car" fell for consideration by Alverstone LCJ in R. v. The Justices of Yorkshire (West Riding), ex parte Shackleton [1910] 1 KB 439 where a person who had charge of a motor vehicle had allowed it to stand on the highway so as to cause unnecessary obstruction. In the course of his judgment Lord Alverstone stated:
9. Although it is true, as Macfee, J. observed in Ho Kwan Pui v. The Queen [1960] HKLR 122 when considering this passage in the judgment, that Lord Alverstone was dealing with a case where the offending vehicle was at rest in the highway, I have come to the conclusion, as did Macfee, J., that Lord Alverstone's interpretation of the relevant words is wide enough to cover a case in which, although the vehicle was driven, the offence committed did not contain as an essential ingredient the handling or manipulation of a car. 10. I think as a matter of common sense as well as one of statutory interpretation that the legislature plainly intended disqualification under the provisions of sec. 23(1)(a) to be a punishment appropriate to and directed at persons whose driving has resulted in a breach of the law. Neither the driving of the appellant nor that of his friend, who was actually the driver of the vehicle when it became involved in the collision, was in any way related to the defective condition of the vehicle. 11. Although it is not a relevant consideration in interpreting the meaning of the sub-section I consider that it is relevant to the overall matter of sentence that there was no evidence to suggest that the collision occurred either wholly or partly as a result of the defective condition of the appellant's vehicle. This is pertinent to an assessment of the learned magistrates conclusion that the vehicle was "a rust bucket which might be described as an accident looking for a place to happen". Furthermore I do not think that the Motor Vehicle Examiner's report justified such a strong conclusion as that drawn by the learned magistrate since it did not specify whether the corrosion extended to major structural parts of the vehicle. 12. Even had the learned Magistrate not exceeded his power in ordering that the appellant be disqualified from holding or obtaining a driving licence I would have been disposed to allow this appeal on the basis of his unjustifiably strong view of the evidence as stated in the agreed facts. 13. It follows from what I have said concerning the interpretation of sec. 23(1)(a) that I must allow this appeal. The order for disqualification is set aside. I think that I should observe that it occurred to me that the agreed facts did not justify the charge in respect of which the appellant pleaded guilty and was convicted. Since the appellant permitted his friend to use the vehicle the charge should have been one of "permitting the use" not one of "using". However, this is a matter that could and should have been the subject of an amendment to the charge by the learned magistrate. The appellant was legally represented at his appeal and no issue was taken on this point. I am therefore of the view that no injustice was done. Accordingly in the exercise of my powers under sec. 119(d) of the Magistrates Ordinance I amend the charge from one of "using" to one of "permitting the use". 14. Finally, I find it surprising that the maximum pecuniary penalty that may be inflicted for an offence of this nature remains at $500. I can only express the hope that this penalty will be revised in the proposed new Road Traffic Ordinance so as to bring it into line with current monetary values.
Representation: Mr. Mawson, counsel for the Crown/respondent Miss P. Lam of Laurence Pang & Co. for appellant |
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