Shek Kam-ming v. The Queen

CACC000432/1982

BETWEEN:

Coram: Roberts, C.J.

Date: 28 May 1982

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JUDGMENT

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[No disqualification permissible for offences not necessarily connected with driving of vehicle.]

1. The appellant pleaded guilty to two charges of driving a motor vehicle with a laden weight in excess of that permitted by the Vehicle Registration Book, contrary to regulation 96(1) of the Road Traffic (Construction and Use) Regulations.

2. On each charge, the magistrate fined the appellant $750 and disqualified him from holding or obtaining a licence to drive motor vehicles for a period of four months.

3. The appellant did not seek to disturb the fines which had been imposed upon him but submitted that the magistrate had no power to disqualify for this offence.

4. I was referred to the very recent case of CHAN Tsz-kei v. R.⁽¹⁾ in which Penlington, J. concluded, after an examination of the authorities, that a magistrate has no power to impose disqualification where the accused is convicted of this offence.

5. This decision arises from the wording of section 23(1) of the Road Traffic Ordinance, the relevant part of which reads as follows -

6. Penlington, J. quotes the following passage from the judgment of Huggins, J. in the Full Court decision R. v. Yip Wai Kay ⁽²⁾ -

^"We think 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 connected with the driving of a motor vehicle."

7. Following this principle, as did Penlington, J., I must hold that the power to disqualify does not apply to a person convicted of a contravention of Regulation 96(1) since this is not, in itself, an offence which is necessarily connected with the driving of a vehicle and is committed when the vehicle is overloaded on a public road, even though it has not been shown to have been driven.

8. Penlington, J. observed that perhaps the time had come to consider an amendment to the legislation so that offences other than those which can only be committed by driving a vehicle should carry with them the possible consequence of a disqualification. I agree with this observation.

9. I therefore felt obliged to quash that part of the sentence which imposed a disqualification on the appellant.

10. Counsel for the appellant did not seek to challenge the fine which was imposed, nor did he suggest that the appellant had pleaded to an invalid charge.

11. However, I think that I should point out, for the guidance of prosecutors, that it is not correct to charge anyone with "driving" a goods vehicle with a laden weight in excess of that which is permitted by the Vehicle Registration Book.

12. This is because section 46(1) of the Road Traffic (Construction and Use) Regulations merely provides that the laden weight of a goods vehicle should not exceed the laden weight shown in the Registration Book for such goods vehicle. An infringement of this regulation only constitutes an offence, when the regulation is read with section 8 of the Road Traffic Ordinance, which provides that -

"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 shall be guilty of an offence."

13. Section 8 of the Road Traffic Ordinance thus refers only to 'user' and not to 'driving'.

14. Were it not for a number of decisions to the contrary, I would have been inclined to find that, as a matter of common-sense, references to the 'user' of a vehicle include references to the 'driving' of a vehicle, since obviously driving is a form of 'user'.

15. However, it is clear that the majority of the Full Court, whose decisions I am obliged to follow, decided in R. v. Lau Pin ⁽³⁾ that the word 'use' has a different meaning from that of 'drive' and that 'driving' is excluded from the ambit of the term 'user'. It is to be noted that this decision was followed by Pickering, J. in R. v. The Kowloon Motor Bus Company (1933) Ltd.⁽⁴⁾

16. Thus, where an offence of overloading contrary to regulation 96(1) as read with section 8 is charged, the correct wording is that the vehicle was 'used', not 'driven', in contravention of the regulation.

17. I allowed the appeal against sentence to the extent of quashing the order for disqualification but maintained the fine imposed by the magistrate on each charge.

(1)    Crim. App. No.378/82.

(2)    [1969] H. K.L.R. 335.

(3)    [1970] H. K.L.R. 343

(4)    [1973] H.K.L.R. 395

Representation:

D. Sparrow (Alexander K.H. Poa & Co.) for Appellant

Miss J.C. Plumptre, C.C. for Respondent.