The Kowloon Motor Bus Company (1933) Ltd. and Others v. The Queen

CACC000455/1973

IN THE SUPREME COURT OF HONG KONG

(APPELLATE JURISDICTION)

CRIMINAL APPEAL NO. 455 OF 1973

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Coram: Pickering, J.

Date of Judgment: 10th August, 1973.

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JUDGMENT

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1. The appellant limited company was convicted on four informations, two of which related to permitting to be driven on a road public omnibuses in which the speedometer fitted was not maintained in good working order, contrary to reg. 15(1)(b) of the Road Traffic (Construction and Use) Regulations and s.8 of the Road Traffic Ordinance (Cap. 220). Of the two remaining informations, one related to a charge in respect of the foot braking system, and the other to the hand braking system. The second and third appellants were convicted on informations alleging, in the case of the second appellant that he did drive a public omnibus on a road when every part of the foot braking system and the means of operation thereof was not maintained in good and efficient working order and properly adjusted, contrary to reg. 101 of the Road Traffic (Construction and Use) Regulations (Cap. 220), and in the case of the third appellant, a similar charge relating to the hand braking system, which charge was expressed to be contrary to s.8 of the Road Traffic Ordinance (Cap. 220). In the case of the third appellant there was a further charge that the speedometer fitted to his vehicle was not maintained in good working order, contrary to reg. 15(1)(b) of the Road Traffic (Construction and Use) Regulations and s.8 of the Road Traffic Ordinance (Cap. 220).

2. The facts were that after three different motor buses had been involved in accidents they were removed to a vehicle compound at Kai Tak where they were inspected by a motor vehicle inspector attached to the Transport Department who gave evidence of the defects alleged in the charges.

3. Both in the court below and upon the appeal, the appellant limited company was represented by Mr. Martin Lee and the two drivers, the second and third appellants, by Mr. Wesley Wong.

4. Mr. Lee's first ground of appeal in respect of all the summonses against the appellant company was that there was no, or no sufficient, evidence that each of the vehicles in question was owned by the appellant company and he expounded this ground at some length, arguing that the prosecution should not have succeeded in the absence of proof that the appellant company was the registered owner of the vehicles since it had been so referred to in the informations and the summonses. If that view was incorrect, Mr. Lee's argument continued, it would be necessary to show that the appellant company was keeping and using the vehicles since "owner" was defined in s.2 of the Road Traffic Ordinance as including the registered owner, the person by whom the vehicle was kept and used, and a hire purchaser. Painstaking though this argument was, it has no substance because registered ownership and ownership are irrelevant to the offence which consists of permitting the vehicle to be used in a particular condition. And it will be apparent that such permitting can be effected by persons other than the registered owner or owner. However, argument to the effect that a borrower of the vehicles could have permitted them to be used without the knowledge of the owners, was beside the point. The learned magistrate found, upon sufficiently adequate evidence and despite the failure of the prosecution to prove "registered ownership", that the appellant company was the "owner" of the vehicles. In that situation, and with no evidence of any loan or hiring of the vehicles, who else could be said to have permitted their user? The only question was whether that permission was accompanied by the necessary mens rea, and this formed a separate ground of appeal, to which I will presently come.

5. The second ground of appeal related to the two informations complaining of allegedly defective speedometers and was to the effect that whereas the summonses alleged the user of the vehicles with such defective speedometer on particular dates and at particular places, the inspection of the speedometers had taken place at another spot, the vehicle compound, and at a subsequent date. All that had been established was that at that subsequent date the speedometers were defective and the motor vehicle inspector had not investigated the history of the defects so that he was unable to say whether they were of a longstanding nature or not. Counsel's argument was that in those circumstances there was no proof that at the dates and places alleged, the speedometers were already defective since the defects could have arisen after the appellant company had temporarily lost effective control of the vehicles. Mr. Carolan, for the Crown, countered this argument with a reference to s.23 of the Magistrates Ordinance which makes certain concessions in regard to variance between informations and the evidence adduced in support thereof as to the time or place at which an offence is alleged to have been committed. As it seems to me, counsel for the Crown did not need the crutch of s.23. The learned magistrate had expressed the matter as being a question of reasonable doubt - which it is - and he had found himself in no reasonable doubt that the speedometers found to be defective in the vehicle compound very shortly after the accidents in which they were involved had occurred, were defective at the time of those accidents. No doubt a more satisfactory method of checks upon speedometers would be in the form of spot checks upon vehicles actually in use upon traffic routes but this may be impracticable on the basis of the manpower available to the Transport Department. However that may be, I see no reason to differ from the conclusion of the learned magistrate.

6. The third ground of appeal on behalf of the appellant company, to which I have already alluded, was more significant and concerned the clement of mens rea on the part of the company. It was Mr. Lee's submission that a person cannot permit an unlawful act to be done by another unless he has knowledge of it; the authorities established that knowledge could be either direct or constructive (imputed), the latter form being sometimes expressed as "turning a blind eye to the obvious". There was no evidence of any direct knowledge on the part of the appellant company, no evidence that the two drivers were employed by the company (here I would observe that this again appears to me an argument to which the concept of no reasonable doubt should be applied), and, unless the drivers had knowledge of the defects that knowledge could not in law be imputed to the limited company; the knowledge of more or less lowly employees of a company, sometimes referred to as the "hands" of the company could not be imputed to the company, unlike the knowledge of managerial staff or the so-called "brains" of the company.

7. In support of this proposition Mr. Lee quoted the case of Henshall v. Harvey⁽¹⁾. In any event, counsel contended, no evidence had been given by or on behalf of any of the appellants, and there was no evidence that the alleged defects in the vehicles were known to the two drivers, the second and third appellants.

8. The learned magistrate, the argument continued, had relied upon the case of James & Sons Limited v. Smee ⁽²⁾ where Parker, J. (as he then was) had stated:

"The appellants were charged with permitting the use of ...... which in our opinion imports a state of mind ...... knowledge, moreover, in this connection includes the state of mind of a man who shuts his eyes to the obvious or allows his servants to do something in the circumstances where a contravention is likely not caring whether a contravention takes place or not."

From this the learned magistrate had concluded that although there need not be actual knowledge of the defect, yet provided it could be satisfactorily shown that had the owner taken reasonable care he would have discovered the defect, then the necessary state of mind was present. In so holding the learned magistrate had equated negligence with knowledge; he had worked backwards in finding that the defects did exist upon the dates of the motor vehicle inspector's inspection and then concluding that if the appellant company had used reasonable care in maintenance inspection they would have been aware of the defects. This, Mr. Lee claimed, was quite contrary to the principle in James & Sons Limited v. Smee⁽²⁾ where it was held that the appellant could not be guilty of "permitting" a user in contravention of a regulation unless it were proved that some person, for whose criminal act they were responsible, "permitted", as opposed to "committed", the user in contravention of the regulation; and that, as there was no evidence in that case that the appellants had knowledge of any facts constituting user in contravention of the regulation, they did not permit such user and accordingly the conviction was quashed. In the same case it was held that knowledge includes the state of mind of a man who shuts his eyes to the obvious or allows his servants to do something in circumstances where a contravention is likely not caring whether a contravention takes place or not. In the present case there was no evidence that the appellant limited company had knowledge of any facts constituting user in contravention of the regulations or that they had shut their eyes to the obvious or did not care whether a contravention took place or not.

9. Mr. Lee went on to comment that under s.8 of the Road Traffic Ordinance the offence can be committed by any person who "uses" or "causes" or "permits to be used" a vehicle which does not comply with the regulations relating to the construction or use of such class of vehicle and conceded that under that section, had the summonses alleged user as opposed to permitting to be used, convictions must have rightly followed since user is an absolute offence requiring no mens rea.

10. What had happened in the present case however, was that the learned magistrate, arguing from the fact that the buses belonged to the appellant company which had allowed them out on to the road, had inferred the necessary mens rea from the conclusion that had the company taken reasonable care, it would have discovered the defects. This was in conflict with the decision in Fransman v. Sexton⁽³⁾ which had been followed in Grays Haulage Co. Ltd. v. Arnold⁽⁴⁾. In the former case the defendant was charged with permitting the use of a motor-car with an inadequate braking system contrary to reg. 76 of the Motor Vehicles (Construction and Use) Regulations 1963. After one of his cors had been involved in a collision, it was found that one of the brake drums was badly scored and rusted, and that the wheel cylinder had seized up, there being no response when the brake was applied. The defendant gave evidence that the car had been fitted with a new wheel cylinder and brake shoes about a year before and that it was his practice to check the brakes whenever a car was returned from hiring. The previous hirer, a mechanical engineer, gave evidence that he had tested the brakes himself and found them working efficiently. The justices found that the defendant did not actually know of the defect, but since, as they concluded, knowledge, for present purposes, included the state of mind of a man who failed to take adequate steps to prevent the defect occurring by an adequate system of maintenance, the offence was proved. On appeal, it was held that knowledge was an essential element in "permitting" something. It was not to be imputed by mere negligence but by something more, such as recklessly sending out a car not caring what would happen. The appeal was allowed.

11. In the case of Grays Haulage Co. Ltd. v. Arnold ⁽⁴⁾ the defendants were charged with permitting a driver to drive a vehicle for continuous periods amounting in the aggregate to more than eleven hours in a period of 24 hours, contrary to s.73(1)(c)(ii) of the Road Traffic Act, 1960. The prosecution contended that the defendants had permitted the offence by not having a service recorder on the vehicle, nor requiring the driver to telephone them by reverse charges, and by failing to have an employee or a clocking system at their yard. There was no evidence that the defendants had actual knowledge that the vehicle had been driven for more than the lawful periods, and, as in this case, the defendants did not give evidence. The justices, being of the opinion that the defendants had failed to take adequate steps to prevent the driver from driving for more than the lawful periods, convicted. It was held on appeal that, since the essence of permitting the commission of the offence was knowledge, and no question arose of actual knowledge in the defendants, knowledge could not be imputed to them in the absence of prima facie evidence from which it could be said that they had shut their eyes to the obvious or had allowed something to go on not caring whether an offence was committed or not. As there was no evidence from which knowledge of the driving of the vehicle for more than the lawful periods could be imputed to the defendants, the conviction was quashed.

12. In the case of Magna Plant Ltd. v. Mitchell ⁽⁵⁾ the justices had imputed knowledge to the company where the company had handed over their responsibility for ensuring the roadworthiness of their vehicles to their depot engineer. It was found that he or one of his staff had been guilty of "reckless negligence". It was held on appeal that a company was not criminally liable, in the absence of knowledge of the facts constituting the offence, for the failure of a servant to whom it had delegated the task. The depot engineer was not in the position of the brains of the company and his knowledge could not be imputed to a director.

13. Mr. Carolan, for the Crown, whilst conceding that on the authorities the prosecution appeared to have lost all the cases on "permitting", suggested that the court "should not get too bogged down in case law"; the authorities cited had been decided on their own facts and it was easy to take an isolated remark and, from it, develop what he called "a bowling-alley mentality"; the magistrate had been entitled to take into account the position in the community of the appellant company; he was not dealing with some petty haulier but with a public omnibus company from whom a much higher standard of maintenance could be expected and the magistrate was entitled to apply higher culpability tests. The defects which existed passed the bounds of mere negligence and the Crown could bring itself within the doctrine of closing one's eye to the obvious, referred to in James v. Smee⁽²⁾. The court was entitled to look at the circumstances of each case and the position in the community of the defendant before the court. Mr. Carolan concluded by saying that he relied strongly upon the dictum of Mr. Justice Parker in James v. Smee⁽²⁾ where he said:

"Where legislation, as here, throws a wide net it is important that only those should be charged who either deserve punishment or in whose case it can be said that punishment would tend to induce them to keep themselves and their organization up to the mark".

14. If that remark was intended to imply that punishment can be meted out in order to tend to induce individuals and corporations to keep themselves and their organization up to the mark, without culpability, I must respectfully differ from Lord Parker, who elsewhere⁽⁴⁾, has stated admirably the principle that if a defendant is charged for permitting an unlawful act to be done, there must be evidence of knowledge established by the prosecution, and if the prosecution seek to rely on the second limb of knowledge, that is to say, that the defendant turned a blind eye to the obvious then the prosecution must prove something more than mere negligence. Unless and until the prosecution has succeeded in proving either gross negligence, criminal negligence or recklessness there is no case for a defendant, in the absence of actual knowledge, to answer to a permitting charge.

15. I am unable to acquiesce in Mr. Carolan's suggestion that the Court is entitled to apply different standards as between a large omnibus company and a small haulier. In each case what must be proved is knowledge. In the present case there was a complete failure on the part of the prosecution to prove that the appellant company had knowledge of the mechanical defects in the vehicles in question and the appeal must succeed upon this ground.

16. That this should be so, is unfortunate; and the fault lies with those whose duty it was to draft, or to supervise the drafting of, the charges. The formula used, in all these charges, was "permitted" ("to be used") ("to be driven") ("on a road"); it is notorious that in the "permitting" cases, the prosecution rarely succeeds - or if it does, the conviction is upset on appeal. It would have been open to the prosecution in these cases to have charged the appellant company with "using", when conviction must have followed almost as certainly as night follows day. Much judicial time which as it is, has been wasted, could have been saved, for a charge of "using" might well have been answered with a plea of guilty and even had that not transpired, an appeal, after conviction, might well have been deemed not worthwhile. In that event much time would also have been saved to the Crown Law Office.

17. Here we have a large public company, carrying members of the public past and through other members of the public, in heavy vehicles, one of which had an empty foot brake fluid reservoir caused by fatigue of rubber seals which should have been replaced some time beforehand, and another of which had a hand brake registering only 5% efficiency, whereas the acceptable minimum level is 25%. Had that company been charged with the proper offence, it could have been punished. As it is, it escapes scot free because the charge was incorrectly laid. The charges were further complicated by the specification of the appellant company as the "registered owner", an unnecessary allegation which no attempt was made to prove, thus leading to a lengthy, though unsuccessful, ground of appeal.

18. Nor is this an isolated case. I am but one judge yet this is the third case to come before me in the last eight days, as I write, in which the drafting of the charge has left much to be desired. In Cr. App. 405 of 1973, the appellant had been charged upon three summonses alleging obscenity when in fact an allegation of offensiveness would have ensured conviction. In that case the learned magistrate complicated matters and ensured the success of the appeal, by failing to comply, when he had decided to vary the charges from obscenity to offensiveness, with the provisions of s.27 of the Magistrates Ordinance (Cap. 227). It remains the fact however, that had the draftsman of the charge been content to allege offensiveness, the conviction for that offence would have been upheld on appeal.

19. In Cr. App. No. 159 of 1973 the charge was laid under s.4 of the Prevention of Bribery Ordinance, leading to an appeal which almost succeeded, whereas had the charge been under s.8 of the Ordinance, it is almost certain that no appeal would have been possible.

20. Additionally, there was, less immediately, but still recently, Cr. App. No. 75 of 1973 in which the charge revealed no offence known to the law and in which, had that not been the case, conviction would still have been impossible by reason of the statement of Agreed Findings of Facts incautiously accepted by the Crown.

21. I am not unaware of the difficulties attendant upon the drafting of charges, but there is at present discernible, in some cases, a failure to match adequately the evidence which it is expected can be led on behalf of the prosecution, with the precise charge eventually laid. Before making that comment, I discussed it with the learned Chief Justice, who has authorised me to say that he agrees with it.

22. In summary, some guilty persons and companies are going unpunished because they are being accused of the wrong crimes and the courts are hearing, and sometimes allowing, appeals which would almost certainly never have been brought had the appropriate crime been charged.

23. Mr. Lee abandoned his fourth ground of appeal but it remains for me to deal with his fifth, which relates to summons No. 5298 and with which ground of appeal Mr. Wesley Wong, appearing for the second and third appellants, associated himself in regard to summons No. 5297. Both these summonses related to the foot braking system of the omnibus bearing the registered No. AD 7075. This is a further instance of a ground of appeal being presented to defendants by virtue of laxity in the drafting of the charge. The charge as drawn read:

24. It will be observed that the summons made no mention of s.8 of the Road Traffic Ordinance, which reads:

"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 five hundred dollars and to imprisonment for three months, and in the case of a second or subsequent conviction to a fine of one thousand dollars and to imprisonment for six months."

and which is the section cr ating the offence. Why this should be so is not apparent because other summonses in this same series, issued by the same informant, do make reference to s.8 of the Road Traffic Ordinance.

25. The summonses as drawn, referred merely to reg. 101 of the Road Traffic (Construction and Use) Regulations which provides that

"Every windscreen wiper and every direction indicator required by these regulations to be fitted to a motor vehicle and every part of every braking system and of the means of operations thereof fitted to a motor vehicle or trailer, and all steering gear fitted to a motor vehicle shall at all times, while the motor vehicle or trailer is used on a road be maintained in good and efficient working order and shall be properly adjusted."

and does not, as Mr. Lee correctly pointed out, create an offence. What it does is to impose a standard and create an obligation in regard to that standard applicable to all vehicles being used on roads. Nor does reg. 169, which provides that a contravention of certain of the other regulations constitutes an offence, embrace reg. 101. It is s.8 of the Road Traffic Ordinance which creates the offence and, as we have seen, the two summonses in question make no reference to s.8.

26. Mr. Lee argued that it was not sufficient for the summons simply to set out the regulation when the offence was not created by the regulation. As it seems to me, this argument missed the point that the summons did more than set out the regulation; it made an allegation of permitting the vehicle to be used, which is a matter not referred to in the regulation. In other words it specified the offence but without reference to the section of the Road Traffic Ordinance creating that offence. The question is how far is that omission fatal to the summonses.

27. Section 10(4) of the Magistrates Ordinance provides

"Every such complaint or information shall be in writing and shall contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence."

It cannot be argued with any success that in the present case the information, which was as required, in writing, did not contain a statement of the offence alleged to have been committed. Moreover, in specifying that the foot braking system was not maintained in good and efficient working order, it gave reasonable information as to the nature of the offence and thus complied with all the requirements of the subsection.

28. That subsection must, however, be read in conjunction with s.33(a) of the same Ordinance, that latter subsection reads:

"The following provisions shall apply to proceeding before magistrates -

29. It is argued that the summonses did not describe the offences in the words of the Ordinance creating them, that is, s.8 of the Road Traffic Ordinance. But comparison of the text of that section with the language of the summonses demonstrates, in my view, that this is precisely what the summons addressed to the omnibus company did. The section speaks of

"any person who ...... 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 the vehicles of the class or description to which such vehicle belongs".

and goes on to provide that such person shall be guilty of an offence. As I see it this summons addressed to the omnibus company, although not specifying s.8 of the Road Traffic Ordinance, described the offence in the words of the Ordinance or in similar words and was, in the words of s.33(a) of the Magistrates Ordinance, "sufficient in law". Certainly its wording involved no lack of detail such as to prejudice the appellant.

30. Mr. Lee placed some reliance upon the case of Simmons v. Fowler⁽⁶⁾ in which Lord Goddard, C.J. said:-

31. It is to be noted however, that that case was decided in the light of the provisions of s.32 of the Criminal Justice Act 1925 which reads:-

32. The reader of the above, in 1925, might have been forgiven a sense of deja vu for the section was no more than the statutory application of part of the Indictment Rules of 1915, to Courts of Summary Jurisdiction. Our own Indictment Rules, made under the authority of the Criminal Procedure Ordinance (Cap. 221) are in very similar terms to the U.K. Indictment Rules of 1915 but, unlike those Rules, they have not, in Hong Kong, been applied to Courts of Summary Jurisdiction - though, by virtue of ss.77(2) and 79(1) of the District Court Ordinance, it would appear that Rule 1(3) of our Indictment Rules, which corresponds with Rule 4(3) of the U.K. 1915 Indictment Rules, should be complied with in the District Court. In England, that sub-rule was applied to Courts of Summary Jurisdiction by s.32 of the Criminal Justice Act, 1925. In Hong Kong, our equivalent sub-rule has not been similarly applied to the Magistrates Courts in which Courts the form of the charge is governed by ss.10(4) and 33(a) of the Magistrates Ordinance with which subsections I have already dealt.

33. It follows that the case of Simmons v. Fowler⁽⁶⁾, does not assist Mr. Lee.

34. The very process, however, of analysing this fifth ground of appeal on behalf of the omnibus company, spotlights a difficulty in regard to summons No. 5297 which concerned not the company, but one of the drivers. It was in respect of this summons that Mr. Wesley Wong, for this driver appellant, associated himself with Mr. Lee's fifth ground of appeal. As we have seen, that ground, per se, fails - a situation which Mr. Lee can afford to regard with imperturbability since he has already succeeded on his third ground of appeal. But the exposition of this fifth ground, and Mr. Carolan's reply thereto, led me to direct the parties' attention to the case of Lau Ping v. Reg.⁽⁷⁾, which in turn, led Mr. Wesley Wong to seek and obtain, permission to add an additional ground of appeal. The point, quite simply, is that the summons does not charge the driver with "using" the vehicle on a road but alleges that he "did drive" the vehicle on a road.

35. In Lau Ping v. Reg.⁽⁷⁾ there fell for interpretation s.3(1)(1) of the Road Traffic Ordinance which reads:

36. In that case Rigby, C.J. said:

"...... since the matter has been argued before us, I think it desirable that I should express my views upon a further point taken by Mr. Jackson-Lipkin. He has drawn attention to the words 'used in contravention of this Ordinance' and, in particular, to the word 'used'. It is clear from the headings at the commencement of the Ordinance that the sections of the Ordinance are divided up into different parts: Part I is entitled 'Preliminary.'; Part II is entitled 'Use of Vehicle' and Part III deals with 'Driving Offences'. Section 8 of the Ordinance enacts that:-

'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 that class or description of vehicle shall be guilty of an offence. Again regulation 96(2) of the Road Traffic (Construction and Use) Regulations provides that:-

'96. (2) No person shall drive or use or cause, suffer or permit to be driven or used - ......'

a goods vehicle of an unladen weight of two tons or under with more than the specified number of persons in the vehicle. Regulation 98(2) of the same Regulations provides that:-

'98. (2) No person shall drive or use or cause, suffer or permit to be driven or used a private car for the carriage of passengers more than one in excess of the seating capacity prescribed in the vehicle licence in respect of that vehicle'.

37. With this view, that the Legislature intended different meanings to be attached to the terms "drive" and "use", Mills-Owens, J. agreed - though it is fair to say that McMullin, J. dissented. Mr. Carolan, for the Crown, says that the majority view there expressed was obiter and does not bind me. However that may be, I find myself in complete agreement with the majority view and therefore follow it, having first checked that the Legislature has not seen fit to amend ss.96(2) and 98(2) of the Road Traffic (Construction and Use) Regulations, but has been content to let them stand with their separate references to "drive" and "use".

38. This topic has direct reference to all three summonses against the drivers. What each was doing was driving. The offence consists of using. And since the Legislature has drawn a distinction between "driving" and "using", it follows that in the particular circumstances of these cases, the summonses revealed no offence. No doubt an owner driver would be both "driving" and "using" but, in the case of an employee, for the reasons stated by Rigby, C.J. in Lau Ping v. Reg. ⁽⁷⁾, that is not so. Undoubtedly there exists a serious moral obligation on the part of an employee not to take out upon the road a vehicle with a defective braking system of which he is aware, but as the law stands it is a moral and not a legal obligation.

39. It follows that the appeals in respect of summonses Nos. 8983, 8984 and 5297 also succeed.

Representation:

Mr. Martin Lee (C.Y. Kwan & Co.) for first appellant

Mr. Wesley Wong (K.Y. Woo & Co.) for second and third appellant

Mr. Carolan, C.C., for Crown

(1) 1965 2 W.L.R. 758

(2) 1954 3 A.E.R. 273, 278

(3) 1965 Crim. L. R. 556

(4) 1966 1 W.L.R. 534.

(2) 1954 3 A.E.R. 273, 279

(5) 1966 110 Sol. J. 349.

(4) 1996 1 W.L.R. 534, 537e

(6) (1950) L.G.R. 623

(7) 1970 H.K.L.R. 343