Lee Che Chung v. The Queen

CACC000324/1971

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 324 OF 1971

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Coram: Huggins, J.

Date of Judgment: 30th June, 1971.

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JUDGMENT

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1. This case has caused me considerable anxiety. The Appellant was charged with soliciting passengers for hire or award in a private motor car, driving without a valid licence and driving without third party insurance. He was sentenced to small fines on each of these charges and in respect of the third charge he was, in accordance with the mandatory provisions of the Road Traffic Ordinance, disqualified for twelve months, that disqualification being limited to private motor cars.

2. When the Appellant first came before the Magistrate he pleaded Not guilty and a date was set for the trial. On the date set for the trial another magistrate records:

"Charges read and explained. Pleads guilty".

That was not a compliance with s.19(1) of the Magistrates Ordinance: his admission of each of the charges should have been recorded as nearly as possible in the words used by the Appellant himself. The facts were then outlined by the prosecutor and the facts as outlined did not disclose an offence of soliciting passengers for hire or award. Nevertheless, no further enquiry appears to have been made. Equally there is nothing to show that the policy of insurance was produced to the court and in this court the Appellant has said that whereas he intended to plead guilty to driving without a licence he did not intend to plead guilty to the two other charges. As counsel for the Crown fairly says, one may view that assertion with a certain amount of scepticism having regard to the fact that the disqualification, which is the matter which clearly concerns the Appellant, was in relation to one of the other two charges. Nevertheless the disqualification depended apparently upon the conviction for driving without a valid licence, it being because of the absence of a licence that it is alleged he was uninsured. There is no suggestion that the Appellant was without a policy at all and in my view it required careful inquiry to ascertain, particularly in view of his previous plea of "Not guilty", that the Appellant really understood what he was doing. The Appellant says (and for the purposes of this appeal I accept it) that he inadvertently failed to renew his licence after three years. Even assuming that that entitled the insurance company to decline to pay if a claim were made, it is common knowledge that many insurance companies will in those circumstances consider themselves still at risk and no enquiry has been made in this case to ascertain whether the company did consider themselves at risk. This is important because the Legislature has not seen fit to impose mandatory disqualification for failing to have a valid licence: it is the absence of insurance which leads to disqualification and it was clearly not in the anticipation of the Legislature that in every case failure to have a licence would lead to disqualification by reason of absence of insurance.

3. All I say here is that I am not happy that justice has been done, although events may prove that it has been done. I am going to give the Appellant leave to appeal against his conviction and, relying upon the failure to record the plea as required by s.19(1), I am going to set aside these convictions and remit the case to the Magistrate for further trial. The Appellant will then have an opportunity to decide how he will plead to each of the charges and he should ensure, as it should be ensured in every case where there is a charge of driving without third party insurance although a policy does exist, that the policy is produced to the court. It will also give the Appellant the opportunity to ascertain, if he is not covered under the terms of the policy, whether the insurance company would nevertheless hold him covered despite his forgetfulness in not renewing his licence.

30th June, 1971.

Representation: