To Kiu v. The Queen

CACC000322/1968

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 322 OF 1968

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Coram: Mills-Owens, J.

Date of Judgment: 31 July 1968

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JUDGMENT

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1. The appellant was convicted in the Magistrate's Court on two charges, namely (1) soliciting persons for hire or reward to travel in a vehicle registered as a private car, contrary to Regulation 29(3) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.220), and (2) using the vehicle, without third-party risks insurance, contrary to section 4(1) of the Motor Vehicles (Third Party Risks) Ordinance (Cap.272).

2. The only evidence adduced was that of police sergeant to the effect that the appellant was seen and heard to solicit persons to travel in the car for payment, that the car bore a licence disc indicating that it was registered as a private car, and that it also bore number plates having numbers or 'marks' of the type assigned by the Regulations to private cars. In particular, no evidence was adduced, to prove registration as a private car, under Regulation 8(3) which permits the production of copies of extracts from the register as prima facie proof, nor was any evidence led concerning insurance. The evidence of the police sergeant was fully accepted by the learned Magistrate and the appellant rested simply on a legal submission that the case was not proved in respect of either charge.

3. Dealing with the matter of the licence disc I think that if the sergeant were to be regarded as giving evidence of the statement contained on the disc, namely that it was issued in respect of a private car, in order to prove that it was a private car, ...(illegible) of considerable difficulty in the law of evidence would arise - that is to say whether his evidence was hearsay. I would refer hereon to the cases of Myers v. D.P.P.⁽¹⁾, Patel v. Comptroller of Customs⁽²⁾ and Comptroller of Customs v. Western Lectric Co. Ltd.⁽³⁾ which will illustrate my meaning. (I should perhaps add, in passing, that the effect of the decision in Myers' case⁽¹⁾ is now offset, in Hong Kong, by the new section 23A recently added to the Evidence Ordinance (Cap.8), but only with respect to trade or business records as defined; this follows a similar statute in England passed specifically to deal with that decision). However, in my view, the difficulty referred to does not arise in the present case. If a person is seen to be driving a vehicle bearing a licence disc and number plates indicating that it is a private car there is, in my view, sufficient prima facie evidence that it is a private car. In effect there is an admission, by conduct, on his part - I mean, of course, an admission in the sense of affording evidence, not in the sense of waiver of proof. The prosecution, as I see it, has sufficiently discharged the evidentiary onus resting upon it.

4. The second point made by Mr. Lawrence Leong for the appellant raises once again the question whether on a charge of driving uninsured it is for the prosecution to adduce some evidence of non-insurance before the defendant can be called upon to make a defence, or whether, on the contrary, the matter of insurance being one peculiarly within his own knowledge the evidentiary onus is on the defendant to adduce some evidence that he is insured against the risks in question in the particular case. The matter has been the subject, as the learned Magistrate observed, of a number of decisions, including one of my own namely Wong Lit Chor v. R.⁽⁴⁾. In Leung Wan (No.2) v. R.⁽⁵⁾ the Full Court, on a case reserved to them by the appellate judge, differed from my reasons and conclusions. In Kwong Pak Yam v. R.⁽⁶⁾, Huggins J. felt bound, as I understand, to follow the decision of the Full Court; he fully discussed his reasons for so doing and I need not repeat them. I would respectfully agree that although a single judge (sitting on appeal from a magistrate's decision) and the Full Court (to whom such an appeal is reserved by the judge of appeal) are exercising the same jurisdiction and have the like powers, functions and duties, nevertheless in case of conflict if the same question arises in a subsequent case the decision of the Full Court rather than that of the single judge ought to be followed, if not on the principle of stare decisis then certainly on the basis of judicial comity and for the purpose of achieving certainty and finality in respect of the legal issues in question.

5. For these reasons I dismiss the appeal. Appeal against sentence dismissed.

31st July 1968.

Representation:

Lawrence Leong instructed by S.F. Sun & Co. for Appellant

Corrigan (Crown Counsel) for Respondent.

(1) (1964) 2 All E.R. 881

(2) (1965) 3 All E.R. 593

(3) ibid. p.599

(4) (1964) H.K.L.R. 265

(5) (1964) H.K.L.R. 530

(6) Cr. App. No.378 of 1965