Yip Wai Kay v. The Queen

CACC000037/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 37 OF 1969

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Coram: Blair-Kerr, J., Huggins, J. & McMullin, J.

Date of Judgment: 12 May 1969

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JUDGMENT

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Huggins, J:

The appellant was convicted under reg.169 of the Road Traffic (Construction and Use) Regulations of contravening the provisions of reg.96(1)(a) by driving a goods vehicle of a weight unladen not exceeding two tons for the carriage of more than one person in the rear of the vehicle. He was fined $300 and disqualified from holding a driving licence for two months and he appeals to this court against sentence. The whole of the argument has been directed to the order of disqualification.

1. In giving his reasons for sentence the learned magistrate stated that the appellant had no fewer than 22 previous convictions according to the record produced to the court. The record is before us and in fact the record discloses 35 previous convictions, including 25 convictions for carrying excess passengers. The magistrate remembered having warned the appellant that if he appeared before him again and was convicted of a similar offence he would face a heavier fine and a period of disqualification. The magistrate recorded the fact that on this occasion the appellant was carrying 9 excess passengers and stated:

"The defendant ... had received a clear and unequivocal warning. The use of dual purpose vehicles for the carrying of excessive passengers must be stamped out for while they are used for this purpose they are clearly uninsured. I am aware that it is open to the prosecution to charge the more serious offence, that they do not do so is out of deference to drivers who have to earn their living by driving. To face a mandatory disqualification for a period of 12 months is perhaps a penalty out of proportion to the offence particularly if the number of passengers is small."

2. The first point taken by counsel for the appellant is that there was no jurisdiction to make an order of disqualification upon conviction for this offence. It is common ground that the order was made under s.23(1) of the Road Traffic Ordinance. That subsection reads in part:

"Without prejudice to any other penalty, any ... magistrate before whom a person is convicted of any offence under this Ordinance or under regulations made there under in connection with the driving of a motor vehicle may order him to be disqualified ......".

The short question is whether driving with excess passengers constitutes an offence "in connection with the driving of a motor vehicle". This very question arose in a case before Mr. Justice Macfee in 1960 (Ho Kwan-pui v. Reg.⁽¹⁾) and on that occasion counsel appearing for the Crown did not support the order of disqualification. The learned judge based his decision upon a dictum of Lord Alverstone, C.J. in R. v. The Justices of Yorkshire (West Riding), ex parte Shackleton⁽²⁾. Of the cases cited to us the first in time was R. v. Lyndon⁽³⁾ where the defendant had been charged with leaving a motor car unattended so as to cause an obstruction on a highway. Without giving any reasons the court granted a writ of certiorari to quash an order for endorsement of his licence on the ground that the offence was not "in connection with the driving of a motor car". This decision was followed in Shackleton's Case⁽²⁾ to which I have already referred. The passage in the judgment of Lord Averstone upon which Mr. Justice Macfee was later to rely was:

"The words 'any offence in connection with the driving of a motor car' when read with their context in s.4 of the Motor Car Act, 1903 point to offences connected with the handling or manipulation of the car in the process of driving it."

The charge there was having charge of a motor car and allowing it to stand on a highway so as to cause an unnecessary obstruction. In Ex parte Symes⁽⁴⁾ the offences involved was being in charge of a motor car on a highway and failing to carry a lamp so as to comply with the Motor Cars (Use and Construction) Order 1904. It was argued that an offence could not be in connection with the driving of a motor car unless it was related to "the actual driving of the car". The court rejected this argument and refused to quash an order for endorsement of the defendant's licence.

3. The first case which was reported in any detail was Brown v. Crossley⁽⁵⁾. The appellant was convicted of failing to produce his driving licence for endorsement when called upon to do so. His defence was that the conviction which it sought to endorse upon the licence, namely using a motor car at night on a public highway without having a lamp burning on the back of the car as required by the Motor Car (Registration and Licensing) Order 1904, was not one which could be properly endorsed. Under s.4 of the Motor Car Act, 1903, the convictions which could be endorsed were those for offences "under this Act or of any offence in connection with the driving of a motor car, other than ......" - but the exception is not material to any matter we have to consider. Lord Alverstone, C.J. was of the opinion both that the offences was an offence under the Motor Car Act, 1903 and that it was an offence "in connection with the driving of a motor car." Mr. Justice Hamilton preferred to base his decision on the first ground while Mr. Justice Avory based his decision on the second ground but did not dissent from the view of the other two judges on the first ground. Lord Alverstone said at p.608:

"The obvious purpose of (the requirement that a rear light be carried) is that a person, who is driving a car in such a manner that it becomes necessary to identify the car, shall by means of the rear lamp be easily identified. It is quite impossible to my mind to contend successfully that driving a car at night without a rear lamp is not an offence in connection with the driving of a motor car".

4. White v. Jackson⁽⁶⁾ took matters a great deal further. There the defendant contravened an Order made under the Defence of the Realm (Consolidation) Regulations, 1914, prohibiting the use of powerful lamps on motor car. It was not disputed that the appellant was in fact driving the car at the time of the alleged offence but he contended that nevertheless the offence was not "in connection with" the driving of the car. Without calling upon the respondent the court decided that there was no substance in this contention. The effect of this decision was that the word "offence" in the phrase "offences in connection with the driving of a motor car" must be construed as meaning an offence which in the circumstances of the particular case was connected with the driving of a motor car" must be construed as meaning an offence which in the circumstances of the particular case was connected with the driving of a motor car and not an offence which could only be committed in connection with the driving of a motor car. Thus at p.1901 Lord Reading, C.J. said:

"If a person while driving a car commits an offence, the offence, it appears to me, must be an 'offence in connection with the driving of a motor car'."

He sought support for this view from the judgments in Brown v. Crossley⁽⁵⁾ and Ex parte Symes⁽⁴⁾. In Simmonds v. Pond⁽⁷⁾ Mr. Justice Darling expressed the view that this went too far and he gave an example which I myself used in the course of the argument, that of a driver's committing an assault upon a person who was in the motor car. However, he agreed that there was no material distinction between failing to carry a rear lamp when required to do so and carrying a powerful lamp when prohibited from doing so. In determining the exact principle upon which the judges decided this case we are in the difficulty that we do not have available in Hong Kong a copy of the Motor Spirit (Consolidation) and Gas Restriction Order 1918 which created the offence of which the appellant was convicted. The offence may have consisted of the unauthorized use of motor spirit in any way (e.g. for heating in a factory) or may have been restricted to the unauthorized use of motor spirit in motor vehicles for non-essential journeys. Mr. Justice Avory said "as the respondent could not drive the car without petrol, it is really true to say that the offence consisted in driving the car" but unfortunately there is nothing to indicate whether he or the other judges understood "the offence" to be an offence which could only be committed by driving the car or one which in this particular instance was connected with the driving of a motor car because the unauthorized use of petrol was used in the engine of a motor car. There is no other case which has been cited to us from which we can ascertain the construction upon which the judges based their decision, but we think that the intention of the legislature must have been to allow disqualification only in cases here the offence as created and not merely the offence as committed was an offence connected with the driving of a motor vehicle.

5. As it seems to us the offence of driving with excess passengers is an offence which can only be committed if a motor car is being driven. It is immaterial that there is a further offence created by reg.96(2) of using or causing, suffering or permitting a vehicle to be used with excess passengers, an offence which it is just possible could be committed without the vehicle's being driven at all. With respect to Mr. Justice Macfee we think he applied the dictum of Lord Alverstone in a way which was not justified by the context in which it was first used. In the ordinary sense of the words there was clearly a connection between the carrying of the passengers and the driving of the vehicle: the former could not be done without the latter.

6. Counsel for the Crown submitted that the correctness of this approach was manifest from the very fact that the charge alleged, and necessarily alleged, the appellant to be a "driver". In another case only two days before the hearing of this appeal I accepted a similar argument in relation to an offence of being a driver and failing to report an accident and held that since the failure to report the accident was the failure of a "driver" the Legislature must have intended that the duty to report was to be regarded as connected with the driving of the vehicle: Lau Kwong-ping v. Reg.⁽⁸⁾. In our view, this argument of counsel for the Crown was right.

7. The second ground of appeal has more substance. The learned magistrate appears to have assumed without any evidence that the appellant's vehicle was uninsured when carrying excess passengers and the language which he used leaves little room for doubt that he took into consideration in assessing sentence the commission by the appellant of an offence with which he had not been charged. In so doing he clearly misdirected himself. However we have not the slightest doubt that this was a case where it was proper to make an order of disqualification and that this misdirection by the learned magistrate should not lead us to interfere. We therefore dismiss the appeal.

12th May, 1969.

(1) 1960 H.K.L.R. 122

(2) 1910 1 K.B. 439

(3) (1908) 72 J.P. 227

(4) (1910) 103 L.T. 428

(5) 1911 1 K.B. 603

(6) (1915) 84 L.J.K.B. 1900

(7) (1918) 88 L.J.K.B. 857

(8) Criminal Appeal No.238 of 1968.