Ng Che Foon and Another v. The Queen
Read the full judgment text of CACC 393/1968 on BabelCite. This Court of Appeal judgment.
1. The appellants were convicted (inter alia) of a breach of Regulation 29(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.220) which provides as follows :-
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CACC000393/1968 IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 393 OF 1968 -----------------
----------------- Coram: Mills-Owens J. in Court. ----------------- JUDGMENT ----------------- 1. The appellants were convicted (inter alia) of a breach of Regulation 29(2) of the Road Traffic (Registration and Licensing of Vehicles) Regulations (Cap.220) which provides as follows :-
According to an extract from the register maintained by the Commissioner under Reg.8 the motor vehicle was registered as "Dual purpose vehicle. Private car/goods". The question arises whether there is any such form of classification in law, or rather sub-classification. 2. The classification and sub-classification of vehicles for registration purposes is provided for by sec.2(2) and sec.4 (1)(a) of the Ordinance (Cap.220). Sec.2(2) lays down various "classes", including :-
Sec.4(1)(a) provides as follows :-
Clearly, this section contemplates sub-division, by regulations, of the "classes" laid down by section 2(2); sub-division both for registration and for licensing purposes. 3. Turning to the Regulations (the Road Traffic (Registration and Licensing of Vehicles) Regulations), the registration of motor vehicles is dealt with in Part I of those Regulations; licensing (generally) is dealt with in Part II. Nothing in Part I provides for a sub-division of the class "dual purpose vehicles ..." specified in section 2(2)(j) of the Ordinance, Regulation 8, in Part I, refers to the First Schedule to the Regulations which schedule specifies the particulars to be contained in the register to be maintained under Regulation 8. The particulars include an item "(xiii) classification of vehicle". No reference is made to any sub-division but that may not be material. Regulation 19, in Part II, refers to the Third Schedule for the ascertainment of the appropriate licensing fees. This Schedule contains an item as follows :-
On the face of it, a sub-division of the class (j) of section 2(2) has been provided for licence fee purposes but not for registration purposes. If that is the position then, as the Regulations stand, no offence is capable of arising under Regulation 29(2) for the reason that it assumes a sub-classification for registration purposes which does not exist in law. In Mak Dick Chung v. R.(1) to which Mr. Hampton drew my attention, Huggins J. came to the conclusion that: "It is by virtue of these provisions (i.e. item 16 of the Third Schedule) that a motor vehicle can be registered 'as a dual purpose vehicle for use as a private car and as a goods vehicle' so as to be caught within the net cast by Regulation 29(2)". With respect, I find the greatest difficulty in agreeing with this conclusion. The Third Schedule and Part II of the Regulations are concerned only with licensing fees. The lawful use of motor vehicles is dealt with by section 2(2) of the Ordinance; the opening words of that sub-section read :-
In the terms of that sub-section, therefore, the class in which a vehicle is registered is to be taken to "indicate the purpose for which the vehicle may be lawfully used". This provision must override any implication which one might be minded to draw from the fact that a sub-division of class (j) has been adopted for licence fee purposes. 4. Regulation 19(4) also may be material. It provides as follows :-
This regulation appears to make licensing subordinate to or dependent on the form of registration, so that so long as class (j) of section 2(2) remains unsubdivided for registration purposes licensing must be precisely in the terms of class (j). 5. The main consideration, in my view, is the fact that section 2(2) expressly makes Lawful the use of dual purpose vehicles for the carriage both of passengers and of goods or equipment, without restriction to user otherwise than for hire or reward. Para (j), it is true, proceeds "in accordance with the provisions of any regulations made under this Ordinance" but that may well refer to regulations concerning construction or adaptation, not to use. That would appear to be so both grammatically and in the context; particularly in that class (j) does not itself contemplate any differentiation within the class itself between dual purpose vehicles which may be used for hire or reward and those which may not. Differentiation within any class included in section 2(2) is a matter for regulations to be made under section 4(1)(a). 6. Summarizing the position; lawful user is governed by the Ordinance (Section 2(2); lawful user depends on the class, or subdivision of a class in ...(illegible).... In absence, therefore, of any regulation sub-dividing class (j) for registration purposes (which is what Regulation 29(2) depends upon), dual purpose vehicles may lawfully be used, as section 2(2) para.(j) therefore indicate, for the carriage of passengers without any such restriction as Regulation 29(2) purports to import. In considering the matter, I have referred to section 3(1)(b) of the Ordinance which enables regulations to be made for controlling the use of vehicles, but here again no such regulation could override user within the terms of class (j) laid down by section 2(2) - in the absence of sub-division of that class for registration purposes under section 4(1)(a). In short, there has been a failure to subdivide for registration purposes. 7. I therefore allow this appeal. The remaining charges relating to third party insurance are dependent on the validity of the charge Regulation 29(2) and accordingly the appeal succeeds also on those charges (see also the illuminating judgmentsin A.G. v. Carville(2) on this aspect).
Representation: G. Hampton for Appellants. Penlington, S.C.C. for Respondent. (1) Cr. App. No. 112 of 1968 (2) (1961) 95 I.L.T.R. 41 |