Wong Yun-fai v. The Queen

Case No.CACC 480/1977[1977] HKLR 404

Court

Court of Appeal

Date—

Judge—

Case Document

100%Judiciary

CACC000480/1977

IN THE SUPREME COURT

	Criminal Appeal
	No. 480 of 1977

BETWEEN
	WONG Yun-fai	Appellant
	and
	The Queen	Respondent

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Coram : Leonard, J.

Date of Judgment : 11th July, 1977.

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JUDGMENT

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1. This is an appeal against conviction. The appellant was convicted in the court below that he being the owner of a motor vehicle namely a public light bus used the vehicle on the road when every part of the foot braking system and the means of operation thereof fitted to the vehicle were not maintained in good and efficient working order and properly adjusted. There was a similar conviction in respect of the hand braking system used on the vehicle and both charges were for offences contrary to regulation 101 of the Road Traffic (Construction and Use) Regulations Cap. 200 read with section 8 of the Road Traffic Ordinance Cap. 220.

2. The following facts were found : firstly that the bus in question belonged to the appellant; secondly that it was driven by a driver down Chai Wan Road on a fairly steep downwards slope; that on the way the foot brake failed and the hand brake only partially operated and fourthly that the bus went out of control, colliding with a wall and killing a pedestrian. It was proved conclusively that at the time in question the brakes were deficient. CHEUNG So and Another v. The Queen⁽¹⁾ establishes that this regulation imposes an absolute liability on a person "using" a vehicle. Mens rea is not an ingredient of the offence of "using". The sole ground of appeal of any substance was whether or not the appellant who was the owner of the public light bus in question could be said to have "used" it as distinct from having "permitted" its user. Mens rea is an essential ingredient of the latter offence. The learned magistrate had this to say :

"The offence of using a vehicle is applicable to the owner. See Cheung So v. The Queen 1967 H.K.L.R. 704. There is also case law to suggest that 'using' is an absolute offence as opposed to 'permitting' the user. This case was charged under an information alleging 'using'. It appears therefore that the offence is absolute but, even if it were not, I would still in the circumstances of this case have held the owner responsible."

I find the last sentence somewhat puzzling as although there was some evidence that the appellant could have known the state of the brakes it appears to have been accepted by the Crown that it was unable to prove he did know of their condition. Had the Crown been able to prove knowledge the appellant would have been charged with permitting the user. The sole question is whether the learned magistrate was justified in holding that the appellant was proved to have "used" the vehicle. The evidence for the Crown on this point consisted of the evidence of the driver, LEUNG Fook-sin, and as recorded by the learned magistrate it reads as follows :

"On 25.7.76 I was driving public light bus - No. of public light bus AV3893. Owner of public light bus is WONG Yun-fai (the appellant). He is owner - defendant. I know him several years. On that date I was driving public light bus. Usually when I drove his vehicle I don't pay hiring fee. On that occasion I was asked by a friend of his to substitute him as driver of public light bus. For this friend had some other things to do. I was not hiring vehicle - just substituting my friend who had family affairs. I have been driving it for several years. Asked to drive if I was free and proper driver had other matters."

The appellant gave evidence and his relevant evidence on this point reads :

"I bought public light bus AV3893 in 1972. 1971 model. I do not myself drive vehicle. I employ drivers. I employ 3 - turnover is great. Each driver drives a shift. 2 shifts a day. Drivers don't work regular hours in respect of 1st shift. Starts in the morning. ....

	Q. :	P.W. 1 said he was a relief driver?
	A. :	Not a regular driver. I think he was relieving a driver surnamed IP. This driver quitted - gave it to Leung, day before accident. I had regular driver."

In The Queen v. CHEUNG So and Another⁽¹⁾ Briggs, J., as he then was, had this to say :

"Counsel also urged that the person who 'used' the vehicle was the driver of the vehicle and could not include the second appellant who was only the registered owner. He urged that the person using the vehicle can only mean the driver or perhaps the person in charge. Upon the authority of James & Son v. Smee (1954) 3 W.L.R. 631 and the other case I am satisfied that that is not so."

The "other case" to which Briggs, J. (as he then was) referred was Green v. Burnett⁽²⁾ and it appears to be well established from these two cases that an owner as distinct from a driver can be said to use the vehicle. In Windle v. Dunning & Son Ltd.⁽³⁾ it was held that on a true construction of the words :

"A person who uses a motor vehicle or trailer in contravention of this subsection or causes or permits the vehicle to be so used."

in section 64(2) of the Road Traffic Act 1960 the alternative of "or causes or permits" restricted the meaning of "uses" to the actual driver and "perhaps also to the driver's employer if the driver was about his master's business". Parker, C.J. had this to say at page 556 :

"In my judgment, as was said by Lord Clyde in giving the judgment in MacLeod v. Penman (1962) S.C. (J.) 31, 46 :

The presence in the section of the alternatives of causing or permitting the use must limit the scope of what is "using". Normally, "using" is applicable to the actual driver.'

I entirely agree with that, and in my judgment 'using' when used in connection with causing and permitting has a restricted meaning. It certainly covers the driver; it may also cover the driver's employer if he, the driver, is about his master's business, but beyond that I find it very difficult to conceive that any other person could be said to be using the vehicle as opposed to causing it to be used."

Windle v. Dunning⁽³⁾ was cited with approval in Crawford v. Haughton⁽⁴⁾ in which the following passage occurs :

"No doubt the line must be drawn somewhere and the judgments... show a tendency to restrict the capacity of persons using in cases where the alternatives of permitting or causing to be used are provided. I have thought for some time that it might be right for us to say in the present case that there is yet another category of user... not merely the actual driver or his employer but someone who by specific and immediate direction causes a vehicle to be driven .... But in the end I have come to the conclusion that it would not be right in view of the authorities to strive to extend the meaning of 'use'."

Crawford v. Haughton⁽⁴⁾ in turn was approved in Belfour Beatty & Co. Ltd. v. Grindey⁽⁵⁾ a case in which a site vehicle was hired to a company and driven on a road on the comapny's business by the owner's employee. The company was convicted of "using" but the appeal was allowed Ashworth, J. observing :

"I can see no way out for the prosecutor who chose to charge the defendants with using when if he had thought about it and had been mindful of that decision he ought to have charged them with ... permitting the use of the vehicle."

In the instant case clearly the driver was not the servant of the owner but a substitute appointed not by the owner but by the owners servant albeit with the consent of the owner. (This consent is to be implied from the practice of substitution which was clearly known to the appellant.) Be that as it may it would clearly be an extension of the term "user" to apply it to the appellant in this case for the driver was not his servant even if he was about his business. I therefore with some regret consider that this appeal must be allowed. The convictions are quashed and the fines if paid are to be returned.