Chan Kai Lap v. The Queen

CACC000416/1969

IN THE SUPREME COURT OF HONG KONG

APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 416 OF 1969

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Coram: Full Court (Rigby, S.P.J., Briggs & McMullin JJ.)

Date of Judgment: 5 September 1969

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JUDGMENT

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1. The appellant was convicted on two charges preferred against him, to wit:-

2. He appealed against his conviction.

3. At the conclusion of the argument before us we dismissed the appeal saying that we would give our reasons for so doing at a later date. We now do so.

4. The facts may be briefly stated. The appellant picked up two prospective passengers in the street, asked them where they wanted to go, and drove them to the destination specified by them. They gave him a $5 note and received in exchange $3,50. The passengers were, in fact, plain clothes police officers on duty in connection with investigation and detection of pirate taxis. After paying to him the money and receiving the change they arrested him on a charge of carrying passengers in a private car for hire or reward, and duly cautioned him. The motor vehicle was in fact registered and classified as a private car. The Certificate of Insurance, in relation to that vehicle, in dealing with its "Limitations as to use" specifically provided that "The Policy does not cover use for hire or reward racing pacemaking reliability trial speed testing tuition or driving test of any learner driver nor use for any purpose in connection with the Motor Trade". Upon that evidence the appellant was duly convicted and sentenced by the learned magistrate. He appealed against his conviction and the single Judge before whom the appeal came referred the case to the Full Court in view of certain observations by the English Court of Appeal in the case of Connell v. Motor Insurers Bureau (The Times, 8th May, 1969).

5. Regulation 29(1) of the Road Traffic (Registration and Licensing of Vehicles) Regulations enacts:

"No person shall drive or use, or permit or suffer to be driven or used, any motor vehicle for a purpose other than that for which it is registered."

6. Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance provides that

"Subject to the provisions of this Ordinance it shall not be lawful for any person to use, or to cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person ..... such a policy of insurance or such a security in respect of third party risks as complies with the requirements of this Ordinance."

7. The argument advanced by Mr. Donnelly, who appeared for the appellant, was that the word "use" appearing in Section 4(1) necessarily implies and requires habitual use for the purposes of any conviction under this section, and although one unauthorised user may invalidate the Policy of Insurance, it does not constitute an infringement of the provisions of this section. That was certainly the argument he put forward with regard to the word "use" in Section 4(1) of the Ordinance and, as we understood him, he adopted the same line of argument with regard to the word "use" appearing in Regulation 29(1) of the Regulations which I have already quoted.

8. We can see no warrant nor justification whatever for putting such a qualified construction on the word "use" as it appears in both the Regulations and the Ordinance. The word is used perfectly clearly and unequivocally and we can see no ground for departing from the ordinary canons of interpretation of a statute that words used should be given their ordinary and natural meaning. But quite apart from any view which we might ourselves have formed, we are wholly satisfied that this very point now raised before us has been specifically and authoritatively determined by a carefully considered decision of the Full Court in the case of the Attorney General v. Lun Chan.⁽¹⁾ That was a case upon which the facts were almost identical with the case now before us. In that case the learned Magistrate convicted the defendant for driving a private car for the carriage of passengersfor hire or reward but acquitted him on the second charge of using that car on a road there not being then in force in relation to such user a policy of insurance in respect of Third Party Risks. In so acquitting him the Magistrate relied upon certain dicta of Mills-Owens, J. in the case of Wong Lit Chor v. The Queen.⁽²⁾ The Attorney General appealed against that acquittal by way of case stated and the specific point raised for the determination of the Full Court was whether the magistrate was right in considering that evidence of habitual user is required before it can be held that a vehicle is used for hire or reward when these words appear in an insurance policy. The Full Court gave a very careful and lengthy judgment, referring to a large number of English cases, including the case of Wyatt v. The Guildhall Insurance Co. Ltd.⁽³⁾, and certain obiter dicta of Branson, J. in that case. In answering the specific question raised before it, the Full Court said

"..... we can see no justification for contending that, unless the accused habitually used his car for hire or reward, the terms of the policy were sufficiently wide to cover him."

The Full Court remitted the case to the learned Magistrate with a direction to convict the appellant on the charge preferred against him under Section 4(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance (unless, of course, there was some reason other than that appearing in the case stated for acquitting him).

9. Not only do we respectfully agree with this authority on the interpretation and construction of this section, but we are further of the opinion that it is binding upon us.

10. In the course of his argument before us, Mr. Donnelly relied very strongly upon the obiter dicta of the Judges of the Court of Appeal in England in the case of Connell v. Motors Insurers Bureau,⁽⁴⁾ approving the obiter dicta of Branson, J. in the case of Wyatt v. The Guildhall Insurance Co. Ltd. to which we have already referred. For the purpose of understanding Mr. Donnelly's argument and his reliance both on the obiter dicta of Branson, J. and the Appeal Judges in Connell's case, it is necessary to refer to Section 6(1) of the Motor Vehicles Insurance (Third Party Risks) Ordinance. That section prescribes the nature of the compulsory requirements of Third Party Policies of Insurance. The section must be read in conjunction with Section 4 which imposes the obligation on users of motor vehicles on a public road to be in possession of a Third Party Risks Policy. The first part of Section 6 provides:

The section then contains a proviso which deals with the conditions and contingencies which the policy is not required to cover. It is the second proviso which is relevant for our consideration.

"Provided that such a policy shall not be required to cover.....

In the Wyatt case the driver of the car, on an isolated occasion, carried the plaintiff and another passenger from Manchester to London, charging them each 25s for so doing. The car was a private car and the Third Party Policy of Insurance in force was restricted to "use for social domestic and pleasure purposes ....." and excluded use for "hiring commercial travelling racing pacemaking ...". The car was involved in an accident in the course of which the plaintiff was injured. He secured judgement for damages and costs against the owner-driver of the car and then brought an action against the insurers, the Guildhall Insurance Co. Ltd., to recover from them the sum so awarded to him against the owner-driver. The sole issue in the case was whether or not the policy of insurance covered the use to which the car had been put on that occasion. The learned judge held that it did not. He said, at page 795:

"I have formed the opinion that it does not cover the case of a car which is being used to convey people for payment from one place to another, even though the owner of the car might have been intending to take the same journey by himself, and having the opportunity of making a little money by carrying somebody else, he took it. In my view, therefore, this action must fail upon that ground. I think the user of the car was not within the policy."

That was really the end of the case. The learned judge then went on to consider - unnecessarily for the purpose of the determination of the action - whether or not the driver of the car was under obligation, under the relevant provisions of the Road Traffic Act 1930, then in force, to have in force a policy covering injury which might be sustained by the plaintiff caused by, or arising out of, the use of the car upon the road on that occasion. In other words, having found in favour of the Insurance Co. that the policy itself had been vitiated by reason of the vehicle being used - albeit, only on one isolated occasion - "for hiring", which was expressly excluded by the terms of the policy, he then went on to consider - quite unnecessarily for the purposes of his decision but in deference to the arguments of Counsel before him as to whether the car had been used by the driver in breach of the obligations required, for third party risks, under the Act. Looking at the words of the proviso itself - and particularly the words "carried for hire" - he expressed the view, at page 796, that - and I quote from his judgment -

"It seems to me that this sub-section is really dealing with vehicles which are normally or habitually used in the way in which the exception mentions, and the were fact that upon one isolated occasion a man takes some reward - it need not even be a monetary reward - for the conveyance of a passenger in his car, is not intended to render him liable to penalties if he has not got a policy which covers that passenger on that occasion. After all, this is a statute which is imposing penalties, and if there are two constructions possible it is right to adopt the one which does not turn the user of the car into a criminal user."

That passage was quoted with approval by Lord Denning, M.R. in the case of Connell v. The Motor Insurers Bureau. Lord Denning then went on to say

"Mr. Justice Branson had been rightly influenced by the fact that a man who had not got a proper insurance in being was liable to be prosecuted and that the subsection ought not to render a mere private car owner liable to be prosecuted merely because he gave a man a lift and perhaps took a contribution towards the cost of the petrol or some small sum as a reward."

Sachs, L.J. also agreed with what Branson, J. had said in Wyatt's case.

11. Again, the observations of their Lordships in Connell's case, although they must obviously be treated with the very highest respect, were, in fact, obiter dicta and not necessary for the determination of the appeal then before them. Whilst this Court is clearly bound by decisions of the Privy Council and of the House of Lords, it is not bound by decisions of the English Court of Appeal (See Robins v. National Trust Co. Ltd. & Others). Still more so is it not bound by obiter dicta of an English appellate court. Quite apart from the decision of the appellate court of this Colony in Attorney General v. Lun Chan, to which we have referred and by which we consider ourselves bound, on the facts of this case the appellant was using his vehicle, a private car, for hire or reward, when there was not in force, in relation to its user, a Third Party Policy of Insurance. In the view of this Court he was using it in breach of the provisions of Section 4(1), read in conjunction with Section 6, of the Motor Vehicles Insurance (Third Party Risks) Ordinance. In our view he was rightly convicted of the offence with which he was charged. It was for these reasons that we dismissed this appeal.

Representation:

Donnelly (Gunston & Fairbairn) assigned for Appellant

Gordon-Davies, C.C. for Crown/Respondent.

(1) 1964 H.K.L.R. 763

(2) 1964 H.K.L.R. 265

(3) 1937 1 All E.R. 792

(4) The Times, May 8th 1969