Chan Tsz-kei v. The Queen

CACC000378/1982

Resume

Appeal against disqualification - offence of overloading vehicle - can be committed by "user" not only by the driver - disqualification can only be imposed for offences which by their creation not commission are "in connection only with driving" - no jurisdiction to order disqualification for such offence - R. v. Yip Wai-kay 1969 H.K.L.R. 335 followed - appeal allowed.

BETWEEN

-----------

Coram: Penlington J.

Date: 21 May 1982

___________

JUDGMENT

___________

1. This is an appeal against a sentence in respect of an information alleging that the Appellant drove a motor-vehicle with a laden weight 186.95 cwts (or some 39%) in excess of its permitted weight. The Appellant pleaded guilty and admitted he had five convictions for similar offences. He was fined $750 and disqualified from driving all classes of vehicles for a period of four months. The appeal is, as usual in such cases, directed at the disqualification.

2. The main ground of appeal was that Section 23 of the Road Traffic Ordinance, Cap. 220, which contains the power for a Court to disqualify from driving, does not provide for such disqualification unless the offence is in connection with the driving of a vehicle (apart from theft offences which do not concern us here). Furthermore the offence itself must, it is argued, be one which can only be so committed by driving the vehicle. It matters not if this particular charge is in relation to an offence committed while driving. It must be one created by statute only as a driving offence.

3. Initially I was not attracted to that argument and at first sight it seems strange that if an offence can be committed in the driving of a vehicle and in fact is so committed, that does not fall within the Section, the relevant part of which reads as follows:

4. The Appellant however relies on the decision of the Full Court in R. v. Yip Wai-kay ⁽¹⁾. Although there the appeal was dismissed the ratio decidendi was as set out at P.340 by Huggins J. (as he then was):

"As it seems to us the offence of driving with excess passengers is an offence which can only be committed if the 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 being driven at all."

Earlier on the same page there is the further dicta, which may be obiter but is directly on the point at issue here:

"We think that the intention of the Legislature must have been to allow disqualification only in cases where the offence as created and not merely as committed was an offence in connection with the driving of a motor-vehicle." (emphasis mine)

5. The offence in this case was under Reg. 96(1) of the Road Traffic (Construction and Use) Regulations, Cap. 220. It reads as follows:

"96.(1)    The laden weight of a goods vehicle shall not exceed the laden weight shown in the registration book for such goods vehicle."

6. This does not in itself create an offence but such an offence is created when the regulation is read with Section 8 of the Ordinance:

"8. Any person who uses or causes or permits to be used on any road any vehicle which does not comply in all respects with the provisions of any enactment relating to the construction or use of vehicles of the class or description to which such vehicle belongs shall be guilty of an offence and shall be liable on summary conviction, in the case of a first conviction to a fine of $500 and to imprisonment for 3 months, and in the case of a second or subsequent conviction to a fine of $1,000 and to imprisonment for 6 months."

7. From that it is clear that the offence as created can be committed by a "user" of the vehicle and it has been held on numerous occasions that a "user" is not necessarily the driver. (Cheung So and Another v. R.⁽²⁾)

8. R. v. Yip Wai-kay ⁽¹⁾ was decided in 1969 and was clear notice that if disqualification was to be a possible consequence of offences other than that ones which can only be committed by driving a vehicle, the legislation must be altered. That has not been done and I must assume such alteration was not considered necessary. Perhaps the time has come to look at it again.

9. I entirely agree with the reasoning of the learned Magistrate that if this is a prevalent offence and the Appellant has numerous recent convictions for similar offences (and I regard an offence of carrying an over-projecting load as similar), disqualification seems the only remedy short of imprisonment. The arguments and authorities cited in this appeal were not referred to him. However it seems to me that the law is as laid down in R. v. Yip Wai-kay ⁽¹⁾ and on the authority of that decision I must allow the appeal and quash the order of disqualification. However the fine imposed will be increased to the maximum allowed, i.e. $1,000 as the disqualification was no doubt a factor considered by the learned Magistrate.

10. This matter was argued by both Counsel very fully and numerous other authorities were cited. These were, however, all before the Full Court in 1969 and were fully considered. It is no disrespect to Counsel that I feel I need not cite them here again.

(1)    (1969) H.K.L.R. 335

(2)    (1967) H.K.L.R. 704

Representation:

John Mullick Esq. instructed by K.Y. Woo & Co. for Appellant.

C. Howard Esq. Crown Counsel for Respondent.