Tse Wan Yuen and Another v. The Queen
Read the full judgment text of CACC 637/1968 on BabelCite. This Court of Appeal judgment was delivered on 12 May 1969.
1. The first appellant was convicted of using a dual purpose vehicle on a road without third party insurance contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (hereinafter referred to as "Cap. 272"). The second appellant was convicted of aiding and abetting the first appellant in the commission of this offence.
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IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 637 OF 1968 -----------------
Coram: Blair-Kerr, J. ----------------- JUDGMENT ----------------- 1. The first appellant was convicted of using a dual purpose vehicle on a road without third party insurance contrary to section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, Cap. 272 (hereinafter referred to as "Cap. 272"). The second appellant was convicted of aiding and abetting the first appellant in the commission of this offence. 2. The evidence adduced by the prosecution was accepted by the magistrate, and it may be summarised as follows:-
witnesses; but their counsel handed up a certificate of insurance from which it appeared that the vehicle was insured generally. The appeals are against conviction; and I shall deal first with the case of the first appellant. 3. Section 4(1) of Cap. 272, so far as it is relevant to this appeal, reads as follows:-
4. The first point taken by counsel for the first appellant concerns the onus of proof in prosecutions under this section. This Court considered this very question in R. v. Leung Wan (No.2)(1), and the decision of the Court is summarised in the following passages appearing at pages 541 and 542:-
In deciding thus, the Court followed a number of English decisions, including R. v. Turner(2), Willams v. Russell(3), R. v. Oliver(4), John v. Humphreys(5) and Philcox v. Carberry(6). 5. In opening his appeal counsel for the first appellant did not challenge those propositions in so far as they applied to the policy holder (who would ordinarily be the owner of the vehicle). The burden of counsel's argument appeared to be directed towards showing that a different approach is called for when the person charged is an employee/driver. However, in reply, counsel cited A.G. v. Carville(7), a decision of the Suprome Court of Eire which appears to be at variance with the English decisions followed in Leung Wan (No.2)(1). Although counsel did not specifically request the Court to reconsider its decision in Leung Wan (No.2)(1), it is difficult to see what other purpose he had in mind in citing Carville(7) 6. The appellant in Carville(7) was charged with driving a motor vehicle without a driving licence, contrary to s.22(1) of the Road Traffic Act 1933 which provides:-
The evidence adduced by the prosecution was that the appellant was driving a vehicle on a road; that the police asked him to produce his driving licence (as they were entitled to do in accordance with power conferred upon them by s.39(1) of the Act); and that he failed to do so. The District Justice dismissed the charge, and his decision was upheld by the High Court. On a further appeal to the Supreme Court, the decision was upheld by a majority, Maguire C.J. dissenting. 7. The Eire statutes are not available in Hongkong; but it would appear from the judgments in Carville(7) that the provisions of the Road Traffic Act 1933 in force in Eire are generally similar to corresponding legislation in force in England and Hong Kong. However, the provisions relating to third party insurance are included in the Road Traffic Act and not in a separate enactment as is the case in Hong Kong; and, unlike the English and Hong Kong legislation, the Eire Act contains a provision (s.56(4)) to the effect that proof of a driver's failure to produce a certificate of insurance when the same is lawfully demanded of him, shall be prima facie evidence that the vehicle he was driving at the time of such demand was being driven in contravention of s.56(1) which makes it an offence for any person to drive a vehicle in a public place unless insured or otherwise indemnified against liability for injury to third parties. 8. The District Justice appears to have been influenced considerably by the fact that the legislature had chosen to enact s.56(4). In his reasons for his decision, he said:-
9. On appeal the argument of counsel for the prosecution was two-fold. Firstly, he submitted that s.78 of the County Officers and Courts Act, 1877 (which is similar to s.39(2) of the English Summary Jurisdiction Act, 1879 and s.33(b) of the Magistrates Ordinance, Cap.227) relieved the prosecution of the necessity of proving that the defendant had no licence; secondly, he submitted that if s.78 did not apply, at common law there was no onus resting on the prosecution to prove that the defendant had no licence because if the defendant had a licence that was a matter of fact which was peculiarly within his knowledge and the onus was on him to establish this fact. 10. In support of this first submission, counsel cited Sheahan v. Cork JJ.(8). In that case the defendant was charged under a section which provided that "it shall not be lawful in any fresh water river or lake, to use, for the purpose of taking fish, any gaff (except when used solely as auxiliary to angling with rod and line .......)." Neither the summons nor the convection negatived that Sheahan's use of the gaff was for the purpose excepted by this section. Sheahan's conviction was upheld by the King's Bench Divisional Court; but, in discussing the applicability of s.78 of the County Officers and Courts Act 1877, Gibson J. said:-
11. The High Court came to the conclusion that s.78 of the 1877 Act did not apply to a prosecution under s.22(1) of the Road Traffic Act. In his judgment Davitt P. said:-
In regard to counsel's second submission Davitt P. said:-
12. On appeal to the Supreme Court, Maguire C.J., in his dissenting judgment, said (p.51):-
And, having dealt with the exceptions and with a number of provisions in the Road Traffic Act, the learned Chief Justice continued (p.52):-
In the learned Chief Justice's view, the decisions in R. v. Turner(2), R. v. Cliver(4) and John v. Humphreys(5) should have been followed by the Irish Courts. 13. But the majority of the Supreme Court took a different view, holding that the court was not bound by the English authorities. In his judgment, Lavery J. said (pp. 53/54):-
14. Counsel for the first appellant agreed that it would be unrealistic to expect the prosecution to call evidence from all authorised insurance companies in order to prove that a defendant had not taken out any third party insurance; but he submitted, on the authority of Carville(7), that the prosecution should in every case call evidence to the effect that the defendant had been requested to produce a certificate of insurance within a stipulated time and that he had failed to do so; and counsel submitted that until such evidence had been adduced by the prosecution the courts should hold that no burden of any kind passed to the defendant. 15. The decision of the House of Lords in Woolmington v. D.P.P.(10) reaffirmed the general principle that the burden of proving beyond reasonable doubt each and every ingredient of the offence charged rests upon the prosecution. There are exceptions to the general rule and the law does in certain circumstances cast upon an accused person the burden of proving particular facts. But, subject to these exceptions, the burden rests fairly and squarely upon the prosecution; and courts do not relax the best evidence rule in favour of the prosecution. If, as regards any particular ingredient of the offence charged, the prosecution fail to adduce such evidence as, in the opinion of the judge, would justify any reasonable jury in convicting, the accused is entitled to a ruling that he has no case to answer even although the prosecution may have adduced ample evidence as regards all other ingredients of the offence charged. Stephen's proposition that:
no doubt states concisely the ratio decidendi of the decisions in Turner(2), Oliver(4) and many other cases. But, in my view, it is not open to a court to apply the proposition in the manner in which it was apparently applied in Carville(7). To apply the proposition in this way is inconsistent with the decision in Woolmington(10); and I do not find it surprising that the learned editors of Halsbury's Laws have omitted the proposition from the Simonds' Edition. 16. In the absence of a statutory provision similar to s.56(4) of the Eire Road Traffic Act, how can it be argued that a defendant's failure to comply with a request that he produce a certificate of insurance within a reasonable time amounts to proof beyond reasonable doubt that there is not in force such a policy of insurance as is required by law? Supposing a defendant says nothing when he is interviewed by the police, and chooses to pay the penalty prescribed by s.16 of Cap.272? Supposing he calls no evidence relating to the question of insurance cover and decides to take his stand on the general proposition that it is for the prosecution to prove beyond reasonable doubt each and every ingredient of the offence charged, including the fact that there is not in force in relation to the use of the vehicle by him a policy of insurance covering third party risks? Evidence of a defendant's failure to produce a certificate or policy of insurance is evidence of that fact; but, in the absence of statute, it proves nothing else. 17. In my view, if the burden rests upon the prosecution to prove that there is not in force the necessary third party insurance cover, it is not open to courts of law to relaw the best evidence rule in favour of the prosecution; and no prosecutor could safely embark upon a prosecution unless he was in a position to call witnesses from all authorised insurance companies to say that they had examined the companies' records relating to motor insurance and that they could find no entry relating to the vehicle in question. 18. Indeed, it is doubtful if such evidence would be sufficient; at any rate it might not go unchallenged. An example of this occurred in Buckman v. Button(11). In that case the defendant was prosecuted under certain orders made under the Defence (General) Regulations 1939, the charges being that he carried on business of the kind referred to in the order without having made the necessary application to the Board of Trade for registration. A prosecution witness was called to say that he had access to the register which contained entries relating to applications by the appellant. Objection was taken to the admissibility of this evidence on the ground that the register was not produced. The justices overruled the objection. On appeal it was held that the prosecutor was not required to call any evidence to show that the defendant had not made an application for registration and that it was for the appellant himself to call evidence to show that he had made such an application. There was therefore no decision as to the correctness or otherwise of the justices' ruling. 19. But, assuming that the registered owner of the vehicle has taken out third party insurance cover, and the prosecution, by great diligence, has discovered the insurance company with whom the registered owner has been dealing, or at least believe that they have done so, they would presumably call a witness from the company to produce a copy of the policy. But the court must decide whether there is "in force in relation to the user of the vehicle" by the person charged such a policy of insurance ........ as complies with the requirements of Cap.272. Section 6(1) of Cap.272 provides that:
The policy frequently specifies the classes of persons entitled to drive, thus:-
Clause 5 of the policy in the present case is in the above form, except that the word "policyholder" has been deleted. 20. If there has been a breach of the terms of such a clause, presumably the insurance company will not regard itself as on risk; and if so it cannot be said that the policy is in force. 21. If the onus is upon the prosecution to prove that the policy is not in force, they would have to tender such evidence as would enable the court to decide whether the vehicle, on the occasion in question, was being used in connection with (a) the policyholder's business or (b) the business of someone to whom the vehicle had been hired or (c) for social domestic or pleasure purposes. They would then have to tender evidence regarding the identity of the driver (defendant) and show that in the case of (a) above he was neither the policyholder nor a person in the policyholder's employ or, if he was, that he was not driving on the policyholder's order or with his permission; in the case of (b) above that he was not a person to whom the vehicle had been hired or a person in the hirer's employ or, if he was such a person, that he was not driving on the hirer's order or with his permission; in the case of (c) that the defendant was neither the policyholder nor a person driving on the policyholder's order or with his permission. 22. In Buckman(11) the Divisional Court reached its conclusion by applying the provisions of s.14 of the Summary Jurisdiction Act 1848 and s.39(2) of the Summary Jurisdiction Act 1879. In regard to s.14, Charles J. said:- "Those are very clear and plain words and in s.39 of the Summary Jurisdiction Act 1879 we find almost the same words but with a slight elaboration. Subsection (2) of that section states: 'Any exception, exemption, proviso, excuse, or qualification, whether it does or does not accompany in the same section the description of the offence in the Act, order, by-law, regulation, or other document creating the offence, may be proved by the defendant, but need not be specified or negatived in the information or complaint, and, if so specified or negatived, no proof in relation to the matter so specified or negatived shall be required on the part of the informant or complainant.' 23. In Roche v. Willis(12) the defendant was charged with contravening s.9(3) of the Road Traffic Act 1930 which provides that:-
At p.155 Lord Hewart, C.J. said:- "....... the justices were invited to hold, and did hold, .......................... 'that it was the duty of the prosecution to satisfy us that (the defendant), although nineteen years of age, had not, on first applying for a licence after the commencement of the Road Traffic Act 1930, himself satisfied the licensing authority that he was during the six months immediately preceding the 1st January, 1930, in the habit of driving such a vehicle.' Here the Lord Chief Justice referred to the provisions of s.39(2) of the 1879 Act and continued:- "Apart altogether from the provisions of statute, the same proposition has been maintained in a long line of cases going back at least to the year 1816, when in R. v. Turner (5M and S.206) Lord Elleborough C.J. said at p.210: 'The argument really comes to this that there would be a moral impossibility of ever convicting upon such an information.. If the informer should establish the negative of any part of these different qualifications, that would be insufficient, because it would be said, non liquet, but that the defendant may be qualified under the other, and does not, then, common sense show that the burden of proof ought to be cast on the person who, by establishing any one of the qualifications, will be well defended?' Bayley J. in giving judgment to the same effect said at p.211: 'We cannot but see that it is next to impossible that the witness for the prosecution should be prepared to give any evidence of the defendant's want of qualification.' Finally Holroyd J. said at p.213 in respect of the qualifications referred to in that case: 'All these qualifications are peculiarly within the knowledge of the party himself, whereas the prosecution has probably no means whatever of proving a disqualification.' It is quite true that neither the word 'proviso' nor the word 'exception' occurs here, but precisely the same meaning can be conferred by the word 'unless'. 24. The decision in R. v. Leung Wan (no.2)(1) was arrived at by applying the common law rule relating to proof of the affirmative of a negative averment which was peculiarly within the knowledge of the accused. The question, however, arises as to whether the court could have reached the same conclusion by applying the provisions of s.33(b) of the Magistrates Ordinance which is in substantially the same terms as s.39(2) of the Summary Jurisdiction Act 1879. 25. From time to time tests have been suggested for determining the applicability of a section such as s.33(b). The test suggested by Gibson J. in Sheaham v. Cork Justices(8) has been described by Cross(13) as "somewhat unreal". I entirely agree. If one starts by assuming that the driving of a motor car on a road is prima facie lawful, obviously the exception mentioned in s.4(1) of Cap.272 may be said to "constitute the gist of the offence". But what right have we to assume that the driving of a motor vehicle on a road is prima facie a lawful act? When motor vehicles first appeared in Britain they were regarded as an unwarranted intrusion upon the public highway. Before the use of such vehicles had been regulated by statute, I venture to suggest that noone would have been prepared to equate the driving of a motor vehicle on a road with the selling of bread. 26. It seems to me that in deciding whether an act is prima facie lawful, little is to be gained by considering the question from a moral standpoint. Moral turpitude is a concept which has varied considerably throughout the ages. It is the language of the particular enactment to which we must lock if we are to determine the nature of a statutory prohibition. 27. It might well be argued that the offence created by s.9(3) of the English Road Traffic Act 1930 is the driving of a particular kind of vehicle by a person under 21 years of age. But is that any reason for saying that under s.4(1) of Cap.272 the use of any kind of vehicle on a road by any person is prima facie a lawful act? I do not think so. Section 4(1) says that it shall not be lawful to use a motor vehicle no a road. The section then proceeds to state an exception to this general prohibition. 28. In my view, s.33(b) of the Magistrates Ordinance is applicable to the trial of charges under s.4(1) of Cap.272 as indeed it is in the case of chargesunder s.5(4) of the Road Traffic Ordinance Cap.220. In a prosecution for an offence under s.4(1) of Cap.272, it is for the defendant to produce his policy of insurance if he wishes to avail himself of the benefit of the exception mentioned in that sub-section. In a prosecution under s.5(4) of Cap.220, it is for the defendant to produce his driving licence if he wishes to avail himself of the benefit of the exception mentioned in that sub-section. 29. In my view s.65 of the Criminal Procedure Ordinance also applies to the trial of charges laid under s.4(1) of Cap.272. Section 65, so far as relevant, provides:-
In Williams v. Russell(3) the charge before the court was laid under s.35(1) of the Road Traffic Act 1930 (which is the English equivalent of s.4(1) of Cap.272). Talbot J. said:-
It is true that a third party insurance policy does not, by its terms, "authorise" the use of the vehicle on a road. But, so far as the prohibition contained in s.4(1) of Cap.272 is concerned, the fact that such a policy is in force is what justifies the use of the vehicle on a road; and so far as s.4(1) is concerned, it is the authority for a person so using the vehicle. 30. Alternatively, if s.33(b) of the Magistrates Ordinance and s.65 of the Criminal Procedure Ordinance do not apply to the trial of charges laid under s.4(1) of Cap.272, then I think that the rule in Turner(2), as applied in John v. Humphreys(5) and Philcox v. Carberry(6), is applicable. I agree with Davitt P. that if the general rule as to onus of proof in a criminal trial were to be applied strictly in prosecutions under s.4(1) it would be practically impossible to administer criminal justice. Some relaxation of the general rule is called for. But I do not agree that tampering with the best evidence rule is the best way of achieving this result. It is far better to accept the fact that in prosecutions under s.4(1) it is for the defendant to produce the insurance policy, if he has one, and to make it a rule that, if he does not produce any evidence as to third party insurance, the court may presume that none exists. I cannot visualise any possibility of injustice occurring. I agree that it would have been better if the legislature in England and in Hongkong had enacted a provision similar to s.56(4) of the Eire Road Traffic Act 1933. But this did not deter the English courts from deciding as they did in Williams v. Russell(3) and in Philcox v. Carberry;(6) and I do not think that the absence of such a provision should deter this court from doing likewise. 31. In Hall v. Dunlop(14), Henry J. said:-
32. I do not think that the question calls for determination in this case. However, the observations of Henry J. in Hall v. Dunlop(14) illustrate the unsatisfactory state of the case law on this subject. What, for example, is meant by a defendant "producing some evidence"? Does this visualise some relaxation of the best evidence rule in favour of a defendant so as to enable him to give some such evidence as; "I had an insurance policy; but I lost it; and I cannot remember which insurance company issued the policy"? And if a court were to admit such evidence, is it then duty bound to permit the prosecution to call rebutting evidence? 33. I should have thought that if the burden of proving a particular fact must be placed on a defendant it should be a burden in law of satisfying the tribunal of the truth of that fact on the balance of probabilities. This appears to have been the view of Scholl J. in an Australian case, Everard v. Opperman(15). The charge in that case was laid under s.32(1) of the Motor Car Act 1951 which reads:
At p.391 Scholl J. said:-
34. However, I would not wish anything that I have said to be interpreted by prosecutors as implying that they are precluded from adducing such evidence as they consider relevant to the issue before the court. Although in prosecutions under s.4(1) of Cap.272 there is no obligation upon the Crown to lead any evidence relating to the non-existence of a policy of insurance, this does not mean that prosecutors are precluded from doing so or that it is undesirable that they should do so. Indeed if the Crown intends to rely upon any such evidence I think it is desirable that the evidence should be tendered before the prosecution case is closed. As I have already said, I do not think that evidence of an accused person's failure to produce a policy of insurance within a reasonable time after having been called upon by the police to do so could, in the absence of statute, ever be regarded as sufficient to justify a finding that no policy is in force; but if, pursuant to s.16 of Cap.272, the accused has in fact been requested to produce the policy or the certificate of insurance and he has failed to do so. I do not think that any court would exclude evidence of this fact; and, for what it is worth, it is desirable that it should be tendered. If the accused does produce the policy or certificate, it should be a very simple matter for the police to make a Zerox copy of it and to produce the copy in evidence. Equally, if in conversation with the police, the accused has made any admission which indicates either knowledge of the non-existence or the inadequacy of the policy in relation to the user of the vehicle, such admission, if voluntary, should be proved against him before the prosecution close their case. As Winn J. said in R. v. Rice(16)
35. But, as previously stated, the main burden of counsel's submission on this ground of appeal was to the effect that although the decision in R. v. Leung Wan (no.2)(1) may cause no hardship to an owner/driver it may cause great hardship to an employee of the policy holder. That submission can be answered quite shorty: Using a vehicle without third party insurance is absolutely prohibited by s.4(1) of Cap.272. This was also the position in England under the Road Traffic Act 1930; but by s.29(1) of the Road Traffic Act 1956 (now s.201(3) of the Road Traffic Act 1960) a person charged with using a vehicle without third party insurance cover shall not be convicted if he proves inter alia
36. There is no comparable provision in the Hong Kong Ordinance; and this would appear to strengthen the Crown's view that it was the intention of the legislature that the offence created by s.4(1) of the Ordinance should remain absolute as regards any person using the vehicle or causing or permitting any other person to use it. It this is so, a driver cannot be heard to say: "I did not know that my employer had not complied with the Ordinance" or "My employer assured me that he had complied with the Ordinance". As the law stands at present in Hong Kong, it is the duty of a driver to satisfy himself that the use of the vehicle is covered by third party insurance before he uses the vehicle on a road. 37. The first appellant's next submission was that in the absence of any evidence that he had used the vehicle habitually for the carriage of passengers for hire or reward it was not open to the magistrate to convict him of an offence under s.4(1) of the Ordinance. In support of this submission his counsel cited Wyatt v. Guildhall Insurance Co. Ltd.(14). The facts of that case, as summarised in the headnote, are:-
38. A plaintiff suing under s.10 of the Road Traffic Act 1934 must show that judgment has been obtained against a person insured by the policy in respect of any such liability as is required to be covered by a policy under s.36(1)(b) of the Road Traffic Act 1930; and he must also show that it is a liability which is covered by the terms of the policy. 39. In Wyatt's(14) case, the owner of the car was covered by the policy in respect of:-
The argument advanced by Wyatt's counsel was that although Wyatt was a passenger in the car for reward, nevertheless the car was not excluded from the cover of the policy because it was not being used "for hiring" purposes. At p.795 Branson J. said:-
It appears, therefore, that the action failed primarily because the learned judge took the view that user of the vehicle on one occasion to convey two passengers to London for payment could not be said to be user of the vehicle for social domestic and pleasure purposes, although it appears that the judge was also of the opinion that such user amounted to a 'hiring' of the vehicle. 40. Having decided that the liability was not covered by the terms of the policy, the learned judge said: (- p.795 F/G)
The "other ground" upon which the learned judge decided to express an opinion (which was not strictly necessary for his decision in view of the fact that he had found that the liability was not covered by the policy) involved the question of whether the liability was one required to be covered by a policy under s.36(1)(b) of the Road Traffic Act 1930. Section 36(1) of the 1930 Act is in substantially the same form as s.6(1) of Cap.272. The latter section, so far as relevant, reads:-
41. Branson J. was, naturally, perturbed at the thought of a private car owner being prosecuted because he has, perhaps on one occasion, conveyed a friend for reard. At p.796 the judge says:-
42. The learned judge considered that the drafting of proviso (ii) to s.36(1)(b) left something to be desired; and in his view the exception to the proviso (i.e. the words "except in the case of a vehicle in which passengers are carried for hire or reward .......") should be read as a clause by itself. At p.797, he says:-
43. In other words, in the learned judge's view, although the passengers were carried on this one occasion for reward, nevertheless they were not passengers carried for reward within the meaning of exception (ii) to s.36(1)(b); and the liability for the plaintiff's injuries was not one required to be covered by a third party policy under s.36 of the Act. 44. The argument advanced on behalf of the first appellant in this case may be summarised thus:- There is a breach of s.4(1) only if the policy does not comply with the requirements of the Ordinance; we have to look to s.6(1) for those requirements; proviso (ii) to s.6(1)(b) says in effect that passengers need not be covered by the policy unless such passengers are carried for hire or reward; the intention of this legislature was that the owner of vehicles should not have to insure against injuries to passengers, unless such passengers are habitually carried for hire or reward; Wyatt(17) decides that the words "are carried for hire or reward" in proviso (ii) to s.6(1)(b) mean "are habitually carried for hire or reward"; the courts should presume that in issuing third party insurance policies authorised insurers intend to comply with the provisions of the Ordinance; the words "use for the carriage of passengers for hire or reward" in the policy should therefore be construed as meaning "habitual use for the carriage of passengers for hire or reward" and consequently that there is no breach of s.4(1) unless the user of the vehicle for the earriage of passengers for hire or reward is habitual user. 45. Before dealing with this ground of appeal, I think that the court should consider whether in this case the first appellant was generally covered by the terms of the policy. The onus was upon him to show that there was in force in relation to the user by him of the vehicle in question such a policy of insurance in respect of third party risks as complies with the requirements of the Ordinance. But, as Huggins J. said in Lin Chun Ying v. Queen(18):
46. According to the certificate of insurance, the name of the policyholder is Messrs. Tai Shing Rubber Factory. Clause 5 is in the standard form to which I have already referred. It sets out "the persons or classes of persons entitled to drive". 47. Clause 6 reads as follows:-
48. Obviously the vehicle was not being used for social domestic or pleasure purposes. It was being used for the carriage of passengers; but there was no evidence as to whether the first appellant was using the vehicle in connection with the policyholder's business or in connection with the business of a person to whom the vehicle may have been hired or in connection with the first appellant's own business. The first appellant did not adduce any evidence regarding his relationship, if any, with Tai Shing Rubber Factory; and, even assuming that he was an employee of the policyholder, there was no evidence adduced by him as to whether he was driving on the orders of any person authorised to give orders on behalf of the Tai Shing Rubber Factory. For all the magistrate knew, the first appellant's use of the vehicle on the occasion in question may have been contrary to the express orders of those persons authorised to give orders on the policyholder's behalf. In my view, the first appellant did not bring himself within the terms of the policy. That being so, there was no evidence that he was covered against injuries which he might inflict on third parties, whether passengers or otherwise. 49. In A.G. v. Lun Chan(19) this court reached a similar conclusion; and the court declined to rule on the question now raised in this ground of appeal. At p.781, the Chief Justice said:-
50. In this case there has been argument on both sides; and I shall therefore express a view, although it is necessarily obiter to the decision in this case. 51. If the first appellant's submission is well-founded, it would mean that in every prosecution under s.4(1) in which it is alleged that a policy is not in force for the reason that passengers have been carried for hire or reward, it would be necessary for the court to decide on the evidence whether there had been habitual user, or something short of habitual user. There could never be a convection unless the court was satisfied beyond reasonable doubt that there had been habitual user. 52. Could the legislature really have intended to create a criminal offence shrouded in such uncertainty? What is habitual user? How often, and in what circumstances, would a law-abiding citizen be able to accept rewards for carrying his friends in the knowledge that he was not transgressing the criminal law? How would he know where to draw the line? And one can well imagine the confusion in the courts with magistrates at first instance, and judges on appeal, all expressing widely differing views on what constitutes habitual user. 53. For myself. I see no reason why the meaning of the words "vehicle in which passengers are carried for hire or reward" in proviso (ii) to s.6(1)(b) should be limited to cases in which passengers are "habitually" so carried. The words are apt to describe the case of a taxi which may be used not only habitually but continuously throughout the entire period of the insurance for the carriage of passengers for hire or reward. But the words are equally apt to describe the case of a vehicle used for this purpose on one occasion. 54. The insurance company has stipulated that the policy covers "use" for social domestic and pleasure purposes and that it does not cover "use" for the carriage of passengers for hire or reward. In either case, I see no reason why the word "use" should be interpreted as meaning "continuous use" or "habitual use" or "occasional use". Use of a vehicle on one occasion is use of the vehicle irrespective of whether, in the process of doing so, any passengers are, or are not, carried for reward. 55. With respect, I do not agree with the view expressed by Branson J. in the latter part of his judgment in Wyatt(17). 56. The final submission made on behalf of the first appellant was that the prosecution had not proved that the reward paid by the police officers was not in respect of goods carried by them. I do not think that there is anything in this submission. The police officers testified that they were not carrying any goods themselves and that they did not see any goods in the vehicle. It is obvious from the evidence that the payment made was for the carriage of the two officers and not for the carriage of goods. 57. In Lin Chun Ying v. R.(18), Huggins J. said:-
I entirely agree. Each case has to be decided on its own facts. 58. For the above reasons, I would dismiss the first appellant's appeal against conviction. 59. Turning now to the case of the second appellant, clearly she was a party to the use of the vehicle for the carriage of passengers for reward. Her position was comparable to that of a conductor on a bus. But is there any reason for holding that she was duty-bound to satisfy herself that the vehicle was properly insured against third party risks before accepting employment as a conductor? I do not think so. 60. The whole object of the Motor Vehicles Insurance (Third Party Risks) Ordinance would be defeated if a driver could say, in the event of an accident: "I did not know whether the vehicle was insured or not." He is absolutely prohibited from driving unless he has satisfied himself that there is in force a policy which insures him against third party risks. But, there is no suggestion in this case that the second appellant was in a position to give orders to the first appellant or that she assisted him in any way in connection with the driving of the vehicle; and in my view she was under no obligation to inquire as to whether there was in force such a policy as is referred to in s.4(1). That being so. I do not see how the conviction against her can possibly stand. 61. In arriving at this conclusion I have had assistance from the decision of the Divisional Court of the Queen's Bench Division in Johnson v. Youden and others(20). The headnote to the report of that decision reads:-
At p.546. Lord Goddard C.J. said:-
Commenting on the principle enunciated in Johnson v. Youden(20), Professor Smith and Mr. Brian Hogan in their textbook on Criminal Law, say (p.82):-
62. For the above reasons, I would allow the second appellant's appeal against conviction. 63. Since preparing the above judgment I have read drafts of the judgments which my brothers Mills-Owens and Huggins, JJ. propose to deliver. Obviously, the intention of the Legislature is that there should be some modification of the strict rule in Woolmington(10), and (1) (1964) H.K.L.R. p.530. IN THE SUPREME COURT OF HONG KONG APPELLATE JURISDICTION CRIMINAL APPEAL NO. 637 OF 1968 -----------------
----------------- Coram: Blair-Kerr, J., Mills-Owens, J. and Huggins, J. ----------------- JUDGMENT ----------------- Mills-Owens, J: 64. In the circumstances disclosed by the evidence in this case I would agree that the dual-purpose vehicle was obviously being used for the carriage of passengers for hire or reward and was being so used by way of business. Accordingly if the policy of insurance was properly in evidence it would follow that the user was not covered by insurance, in that the policy excludes 'use for the carriage of passengers for hire or reward'. 65. The appeal turns initially upon the question whether it is the duty of the prosecution to adduce proof of non-insurance , or of the defence to adduce proof of insurance. 66. Obviously there must be some limits to any rule that proof of matters peculiarly within the knowledge of the defendant lies on him. Thus it cannot possibly be held to extend to the legal onus of proof of guilt, as opposed to the evidential burden of adducing some evidence of the fact in issue. Even when confined to the evidential burden it must have some limits. Otherwise it could, in appropriate circumstances, operate to deprive an accused person of his right to remain silent. Clearly, also the word 'peculiarly' must be given its proper meaning, as importing the absence of other means, available to the prosecution, of proving the fact in issue; although I would agree that absence of means should be judged as a practical matter in the circumstances of each case. Thus on a charge of driving uninsured the prosecution could certainly not be expected to produce the records of each and every insurance company by whom the defendant might, conceivably, be insured. But in the matter of insurance against third party risks the Legislature has, in fact, provided means whereby the prosecution can at least adduce prima facie evidence of non-insurned (by reference to official records and by enabling the police to require production of the insurance certificate). In such cases, therefore, what possible reason arises for imposing the burden on the defendant? A fortiori where the offence is an absolute one. I would, therefore, with respect, have thought that what I said on this point in Wong Lit-chor v. R.(1) was correct. It is supported by the formidable authority of the Carville case(2), of which I was not then aware and as to which it may be observed that all three members of the High Court in Eire were of the same opinion and were upheld, by a majority of five to one, on the appeal from the High Court to the Supreme Court of Eire. 67. Clearly, any rule which purports to relieve the prosecution from the duty of adducing evidence to prove its case must be viewed critically. There is considerable force, if I may say so, in the statement made by Dr. Cross (at pp.81-2 of his 3rd Edn.) that some of the decisions on the rule in question are open to criticism as representing 'an unjustifiable extension of the decision in R. v. Turner(3) from statutes containing a number of qualifications, under which the acts charged would be lawful, to issues concerning a single negative which would be as easy to prove by prima facie evidence as the affirmative.' 68. I would take the view that the only burden which rests on a defendant is that of adducing evidence to establish any matter of exception or defence which is peculiarly within his knowledge. This accords with justice and common sense. To approach the matter differently - by enquiring first whether the fact in issue, be it negative or affirmative, is peculiarly within the knowledge of the defendant and, if it is held to be so, then to hold that it is for the defendant to prove or disprove it, as the case may be (in the sense of adducing evidence), regardless of whether it is an essential ingredient of the offence charged, appears to me to go too far. The Legislature has ample means to go further than the common law rule in the case of any particular type of offence, if it wishes. As an example of an express statutory provision I would refer to section 49 of our Dangerous Drugs Ordinance, 1968 (repeating English Acts of 1923, 1951 and 1965) which provides:-
This, in my opinion, is the type of legislative provision which the courts are entitled to expect, if it is desired to extend the common law rule. 69. I would allow the appeal on this point but the majority of the Court considers otherwise. 70. The case brings into prominence the position of drivers who are mere employees. Is it to be held that it is peculiarly within an employee-driver's knowledge whether his employer has taken out, and maintains, an appropriate policy of insurance? Is an employee to cross-examine his employer as to whether each and every vehicle he (the employee) is required to drive is appropriately insured, and - not only that - is kept appropriately insured whensoever he is required to drive? Whilst penalising the driver of an uninsured vehicle, the Ordinance equally penalises the owner or manager who causes or permits the vehicle to be driven uninsured. In the circumstances prevailing in Hong Kong it is surely the latter who bear the real burden of guilt. But apparently it is invariably the driver, only, of a dual-purpose vehicle who is prosecuted. If there are difficulties, as Crown Counsel says there are, in the way of prosecuting owners and like persons who cause or permit the driving of dual-purpose vehicles uninsured, why should not the necessary steps be taken to arm the authorities with sufficient powers for the purpose; even to the extent of procuring powers to obtain disqualification of offending vehicles for a period if that is the only adequate means of suppressing the practice? Surely the position must be avoided where, to all appearances, employee-drivers of dualpurpose vehicles are selected as convenient and expendable victim. In my opinion it is regrettable that the defence provided in England by section 201(3) of the Road Traffic Act, 1960 (re-enacting earlier legislation) has not been incorporated in the local legislation. That section provides that a driver using a vehicle in the course of his employment is not to be convicted if he neither knew nor had reason to believe that there was no policy of insurance in force. Clearly, this is a just and equitable provision which ought to be adopted here. 71. The case against the second appellant, of aiding and abetting the driving uninsured, stands on a different footing and for the reasons given in the judgment of the learned President I agree that her appeal must be allowed.
(1) (1964) H.K.L.R. 265. IN THE SUPREME COURT OF HONG KONG ORIGINAL JURISDICTION CRIMIMAL APPEAL NO. 637 OF 1968 -----------------
Coram: Blair-Kerr, J., Mills-Owens, J. and Huggins, J. Date of Judgment: 12 May 1969 ----------------- JUDGMENT ----------------- Huggins, J: 72. The offence with which the appellant was charged was driving without third party insurance. It is inconceivable that the police should have laid such a charge without first making some investigation as a result of which they came to the conclusion that the appellant was not insured. Such enquiry may have amounted to nothing more than an unsatisfied demand for production of the relevant certificate of insurance made under s.16 of the Motor Vehicles Insurance (Third Party Risks) Ordinance: it certainly would not have included enquiry of every authorized insurer. Whatever evidence was thus obtained tending to show lack of insurance could have been laid before the magistrate and I would have thought that every dictate of justice and common sense would point to the desirability that it should have been so laid. Nevertheless it is argued on behalf of the Crown that no more evidence need be laid in such a case than would have been required had it been an offence to drive the motor vehicle at all. It is small wonder that such a principle as that contended for by the Crown has been fought against even after it has apparently been established by judicial decision. Why the prosecution should unnecessarily insist on doing what to many appears unfair is beyond my comprehension and whatever the strict legal position I have no doubt that the opposition to such a practice will continue. 73. Having said that I am left to decide which of the opposing views expressed by my Lords ought to be applied here. The decisive factor seems to me to be that the present issue has already been decided by this court in favour of the Crown in Reg. v. Leung Wan (No.2)(1). While I hope that the judges of this court will never be slow to overrule a previous decision which they are persuaded was based upon a manifestly wrong principle yet it is vital to the good government of the state that the law should be certain. Therefore if once an issue upon which strongly opposed judicial opinions have been expressed has been decided by the court one way or the other I believe it to be in the general interest that the decision should be followed by all courts of the Colony until it is either overruled by the Privy Council (or in an appropriate case by the House of Lords) or is superseded by statute. This is the more important in the absence of any permanent Court of Appeal in Hong Kong. 74. It is only too apparent that the basic issue which arises in the present case is one upon which great judicial minds have been unable to agree at least since 1800: see R. v. Stone(2). The crux of the matter is this. The fundamental rule of the Common Law in criminal cases has been that the prosecution shall prove beyond all reasonable doubt every ingredient of an offence even though that may incidentally involve proving a negative averment. In R. v. Woolmington(3) the court was concerned with a charge of murder. One ingredient of the crime of murder is malice aforethought. Such malice is an intention to kill or to do grievous bodily harm without lawful justification. It was held that the burden was on the prosecution to prove the negative averment that there was no lawful justification. Viscount Sankey, L.C. in an oft-cited passage said:
(He had previously described the pronouncement of the law of insanity in Reg. v. M'Naughton(4) as "quite exceptional".) Here the duty or burden referred to is the legal burden of proof, but the Lord Chancellor also cited a passage in Sir Michael Foster's Crown Law (1762) at p.255:
He said of this passage:
75. In other words I understand the Lord Chancellor to be saying that Sir Michael Foster was not really concerning himself with the burden of proof at all, either legal or evidential, but merely with the question. What inferences may properly be drawn from evidence of a killing? I confess that I see no justification, in the absence of statutory provision to the contrary, for inferring from the fact of conscious killing that the killing was without lawful excuse unless one proceeds on the basis that killing is prima facie unlawful. The Lord Chancellor, immediately before the passage last cited, had emphasized that "the presumption of innocence in a criminal case is strong". In time of peace it may be reasonable to infer that a conscious killing is unlawful on the ground that more conscious killings are unlawful than lawful, but the same reasoning could not (at least in relation to third party insurance) apply to driving a motor vehicle. How can it be said that evidence that the appellant was driving a motor vehicle was evidence from which it could reasonably be inferred that he was driving without insurance? Whether driving a motor vehicle is prima facie unlawful depends upon the construction of the legislation rather than upon an almost universal recognition of the value of human life. Thus, to argue on the basis that driving a motor vehicle is prima facie unlawful seems to me to beg the question. 76. The fact is that legislatures are prone to proliferate the number of crimes, often without ensuring that those crimes can be proved by evidence available to the prosecution. Thus under the Statute 5 Anne Cap. 14 it was an offence for a carrier to have in his possession game unless he had one of a number of qualifications, one of which was a property qualification. The judgesin R. v. Turner(5) were of opinion that if it were necessary for the prosecution to negative all the possible qualifications it would, in most cases, be impossible to convict at all. Thus they were left with the alternatives of holding that Parliament was powerless to create such an offence or of attempting to give effect to the intention of Parliament by applying what Mr. Justice Bayley said was "a general rule, that if a negative averment be made by one party, which is peculiarly within the knowledge of the other, the party within whose knowledge it lies, and who asserts the affirmative is to prove it and not he who avers the negative." Taking their stand on what they considered common sense and seeking to give effect to the intention of Parliament the judges chose the latter alternative. Parliament continued to create offences which were either absolutely or practically impossible of proof and the courts again and again had to choose between extending this rule or, in effect, telling Parliament either that it must not create such offences or that, if it did, it must make express provision for the discharge of the fundamental burden of proof which was on the prosecution. I would certainly have been happier had the courts been able to take the stronger line, for that would have avoided the sort of problem with which we are now faced. However, the judges came to the conclusion that as no real injustice would be done to defendants in such cases if the burden of adducing evidence to prove their qualification were cast upon them, and as to require the prosecution to attempt to negative the qualifications "might lead to the encouragement of much hardihood of swearing", they ought not to require prima facie evidence to be adduced by the prosecution. To insist now that in every case the prosecution must adduce evidence to prove even negative averments would be to put the clocks back more than 150 years and while that might please purists like myself I doubt the wisdom of such a move. At the same time it must be recognized that there is danger in extending the principle of Reg. v. Turner(5) too far. It is not every case where an offence is difficult of proof (and by that I mean difficult of proof per se and not merely in the circumstances of a particular case) that the courts will hold the evidential burden to be on the defendant. I emphasize, as Mr. Justice Mills-Owens has done, that it is the evidential burden with which we are concerned and not the legal burden. Each statute must be considered separately and it is not possible to lay down any clear test by which it may be discovered whether the difficulty of proof has reached that degree of practical impossibility which will lead the courts to hold that the burden is on the defendant. I do not pretend that I regard this as satisfactory but the courts have allowed themselves to take up a position which is indefensible save by pleading expediency. 77. Wigmore in his book on Evidence (3rd Ed.), after defining the burden of proof as "the risk of non-persuasion", considers whether there is any single principle which will afford a general test for ascertaining the incidents of this risk. He concludes at p.278 (2486):
This passage perhaps points to an explanation of the conflict which has arisen in the licence and insurance cases: if the matter depends upon experience and fairness it would be surprising if there were unanimity, because what may seem fair to one judge may not seem fair to another. For my part I cannot see that fairness can ever require the courts to depart from the principle that in a criminal case not only the legal burden of proving the guilt of the accused but also the evidential burden of adducing testimony tending to establish every ingredient of the crime of which the accused is alleged to be guilty is on the prosecution, because in cases where the ingredients of the offence are such that to prove them would be a practical impossibility the remedy lies in the hands of the Legislature. These are not Common Law offences. The Legislature creates the necessity for a licence and insurance: let the Legislature provide for proof of the absence of them. There are many statutes in which express provision has been made for discharging the burden of proof and in my view it would not be unreasonable to expect the Legislature to do this wherever it is necessary. Indeed it could be done by a general provision to the effect that in every criminal case where absence of a licence, certificate or like document is an ingredient of the offence it shall be sufficient to alleged absence of the document and that no proof of such absence shall be required on the part of the prosecutor. 78. Section 33(d) of the Magistrates Ordinance was referred to but that does not put the matter beyond doubt because it deals with "any exception, exemption, proviso, excuse or qualification". If that provision applies in a case such as that at Bar then it must not be overlooked that it also provides, in effect, that the absence of insurance need not be specified or negatived in the information. This is the point which was exercising the mind of Mr. President Davitt, in the Attorney General v. Carvill(6) when he emphasized that the gist of the offence in that case was not the driving of the vehicle on the public road but driving it without a licence. I would not attach great weight to the decision in that case because of the distinction drawn in the Eire legislation between driving without a licence and driving without insurance, but it does seem to me, despite what was said by Lord Hewart, C.J. in Roche v. Willis(7), that the use by the Legislature of the word "unless" does not necessarily create an "exception": the distincti on is between a condition ("You may do this if" or "You may not do this unless") and an exception ("You may not do this, provided that it shall be an excuse if"). While this may appear a mere matter of words, I think Mr. Justice Gibson was right in Sheahan v. The Cork Justices(8) when he said there was more to it than the mere use of words: what one has to ascertain is whether the legislature intended to make the doing of an act criminal generally or to make the doing of the act criminal only in certain circumstances. It is not a question whether the court thinks moral turpitude is involved but whether the legislature used language indicating an intention to create a complete prohibition. Thus by virtue of reg. 8 of the Road Traffic (Roads and Signs) Regulations there is a complete prohibition against failing to conform with speed limit signs. Nevertheless s.17(1) of the Ordinance exempts the driver of any vehicle which is being used for fire brigade, ambulance, preventive service or police purposes from compliance with that provision if compliance would be likely to hinder such use. In s.4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance, under which the appellant was charged, the Legislature has not employed similarly forthright language showing an intention completely to prohibit the driving of motor vehicles and then to create a limited exemption. 79. It seems to me that Reg. v. Leung Wan (No.2)(1) can be supported, but can be supported only, on the basis of expediency to which I have referred. Tempting as it may be I think this court should not take upon itself the task of stemming a tide which has flowed for upwards of 150 years. Next week a differently constituted Full Court might not share the doubts which two of us have as to the wisdom of giving expediency such a free rein in criminal prosecutions and the Full Court would soon cease to fulfil the important function which has been delegated to it of guiding the courts of summary jurisdiction. The law was stated in Reg. v. Leung Wan (No.2)(1). So be it. 80. It is argued that a distinction is to do be drawn between cases where the driver is the owner of the vehicle and cases where the driver is not the owner. I would like to think that there was a valid distinction because I dislike the possibility that a driver who has taken reasonable steps to satisfy himself that the vehicle he is driving is insured may nevertheless be convicted of the criminal offence of driving without insurance. It is a possibility which could be avoided if vehicles were required to display a certificate of insurance in addition to a licence or if drivers, instead of the vehicles themselves, were required to be insured against third party risks. However, I am convinced that the Legislature intended to make this an absolute offence and one can only hope that magistrates will very carefully assess the degree of blame in each case before deciding upon the appropriate penalty (if any). When Mr. Justice Singleton said in Blows v. Chapman(9) "It is not the duty of a workman to ask his employer each day: 'Is this vehicle insured?'" he was concerned only with the question whether failure so to ask would make the workman liable to disqualification if he were in fact uninsured: that decision, which was founded upon legislation similar to that new in force in Hong Kong, itself shows that the workman must ask if he is to avoid committing a criminal offence. I respectfully agree with what Mr. Justice Mills-Owens has said about the practice of prosecuting employed drivers instead of the persons whose responsibility it ought to be under the present legislation to insure vehicles. 81. The majority of the court having decided that the onus was on the first appellant to prove that he was covered against third party risks it was necessary, under a policy of this kind, for him to show both that he was a person entitled to drive and that he was within the limitations as to use. Clauses 5 and 6 of the certificate show the terms of the policy to be:
It will be seen that there are two conditions precedent which have to be satisfied before the insurers are on risk, one relating to the driver himself and the second to the purpose for which he is driving, but they are inter-related. Thus to ascertain whether the first appellant was a person entitled to drive under Clause 5 it was necessary in the first instance to know for what the vehicle was being used. The appellants did not give evidence and it was only by inference from the evidence called by the prosecution that the purposes for which the vehicle was being used could be found. There was no evidence at all that it was being used for social, domestic or pleasure purposes but rather was there some indication that it was being used for business purposes. Was such use "in connection with the Policyholder's business" (the policyholder being a rubber factory) "or the business of a person to whom the motor vehicle (was) hired"? As to that we can only guess. Nor was there any evidence that the first appellant was in the employ of the policyholder or of a hirer and that he was driving on the order of such policyholder or hirer or with his permission. I agree with the learned President that the first appellant has not discharged the evidential burden to show that there was in relation to his user of the vehicle the necessary policy of insurance and that his appeal must be dismissed. 82. I also agree that the appeal of the 2nd appellant must be allowed for the reasons given by the learned President. 83. In the circumstances it is unnecessary to decide in the present case the difficult question whether on the true construction of the policy the exclusion of "use for the carriage of passengers for hire or reward" relates only to habitual use for that purpose. As we are not agreed upon the point II prefer to express no concluded view and I do no more than mention that if the onus is on the defendant to adduce evidence to show that he is insured then, assuming that only habitual use is excluded, it would appear to be for the defendant to lead some evidence that he did not habitually use the vehicle for the carriage of passengers for hire or reward. 12 MAY 1969 (1) 1964 H.K.L.R. 530 |