The Queen v. Ng Chor-cheung

CACC001056/1983

Headnote

Liability of driver for defective brakes, "use" of motor vehicle. Does the driver of the vehicle necessarily also use it? Does the use of phrase "drive or use" in regulations mean there must be a difference between them?

Date of Hearing: 12th September, 1983

Date of Judgement: 12th September, 1983

IN THE HIGH COURT OF HONG KONG

(Appellate Jurisdiction)

Criminal Appeal No. 1056 of 1983

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Between

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Coram: Hon. Penlington, J. in Court

Date: 12th September, 1983

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JUDGMENT

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1. This is an appeal against conviction on a charge of using a motor vehicle which was equipped with a defective braking system. The charge was laid under Regulation 101 of the Road Traffic (Construction and Use) Regulations, which says that all vehicles while "used" on a road shall have a braking system which is maintained in good condition, and Section 8 of the Road Traffic Ordinance which makes it an offence to "use" a vehicle on a road which does not comply with the Regulations.

2. The facts as found by the magistrate were simple in that the appellant was the driver of a goods vehicle which was involved in a collision on the 20th of November 1982 on Route Twisk. Following the accident the vehicle was taken to the Government Transport Examiner, Mr. Patterson, who found the foot brake to be defective in that it had to be pumped twice in quick succession to get effective braking. He suspended the vehicle's licence because he considered that it was potentially dangerous in its existing condition.

3. The appellant was not the owner of the vehicle and indeed the owner himself was also summonsed in respect of the same matter. He was however acquitted as the magistrate held that, on the authority of the Hong Kong cases on this point, it was necessary for the Crown to show that the owner of the vehicle had knowledge that the braking system was defective.

4. It was the case for the appellant in the court below and before me that although he was the driver of the vehicle he did not "use" it so as to be liable as charged. It is at first sight a startling proposition but one which, in the context of the Hong Kong regulations and their judicial interpretation, has support.

5. The appellant relies strongly on the authority of Kowloon Motor Bus 1933 Limited v. The Queen 1973 H.K.L.R. 395. This was a decision of Pickering J. in which he followed the reasoning of the majority in LAU Ping v. The Queen 1970 H.K.L.R. 343. In that case the reason for allowing the appeals was that regulations which had been made for the Impounding of public light buses were held to be ultra vires. In LAU Ping Rigby C.J. said at P.352

"The Solicitor General has contended that the expression "used in contravention of this Ordinance" is wide enough to cover "driven in contravention of this Ordinance" and on the basis that the greater includes the lesser it must be assumed that the expression "used in contravention of this Ordinance" must be held to include and embrace "driven in contravention of this Ordinance". That is, indeed, a submission based on sound common sense. But where the Legislature, in the course of the same Act or Ordinance and in subsidiary legislation made thereunder, has deliberately chosen to use different words "use" and "drive' in different sections and in different contexts and, indeed, in the Road Traffic (Construction and Use) Regulations, to use the words "drive" or "use" in the same regulation, it must be assumed that it intended different meanings to be attached to the use of those distinct words or expressions. "

Mills-Owens J, concurring, said at P.356

"Secondly, the question arises whether the words "used in contravention of this Ordinance", appearing therein, should be given a limited meaning - that is to say, as indicating offences strictly of illegal user of vehicles as opposed to driving offences -offences of illegal user being more indicative of offences attributable to the neglect or default of owners, as being offences which it lies within their power to prevent. I would incline to that view. "

In McMullin, J. dissented from that view and held that the word "used" should be given its normal meaning so as to include the driving of a vehicle.

6. In Kowloon Motor Bus Co. Ltd. v. The Queen Pickering J. said that he found the majority view very convincing and he intended to follow it, even though it was obiter. He said

"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., 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. "

7. In Lau Ping v. The Queen the Court was concerned with the question of whether an owner should be liable for the consequences of an act done by his driver employee over which he had no control. The Court clearly felt that it was morally wrong that he should be so liable and could be deprived of his property by having the bus detained. All three judges said that if a regulation contained such a provision it would only be held valid if there was very clear power to so regulate contained in the Ordinance. They held there was no such power. That was undoubtedly the ratio decidendi of the case. The majority however went on to say that because in Regulations 96(2) and 98(2) of the Construction and Use Regulations, refer to "drive or use" there must be a distinction intended and the owner should not be responsible for the consequences of offences which could only be committed by driving a vehicle in a certain manner. This the Court said was not only the proper legal construction but also the just and fair one. However it also must follow that if that is correct the reverse applies and a driver is not liable if the offence relates to the maintenance of the vehicle for which the owner should bear full responsibility. With the greatest respect I do not agree if "full responsibility" means "sole responsibility". An owner must take all reasonable steps to see his vehicle is properly maintained but to a large extent he must rely on the driver to advise him of any defects. I can't believe that the legislature intended that if an employed driver continues to use a vehicle on the road with defective brakes he should only be morally to blame. There is obviously some strength in the argument that if in one regulation the legislature refers to both driving and using but in another regulation refers only to using that a distinction is meant between. However I agree with McMullin J. in Lau Ping when he says at P.363:

"I turn now to the general proposition with which Mr. Jackson-Lipkin began his argument. This was the proposition that, in the context of traffic law, the term "used" is a special term, not a layman's term which is always found to be referable to the vehicle as distinct from the driver. I understood him to mean by this, principally, the condition of the vehicle as distinct from the behaviour of the driver. If it was intended to state the matter so broadly I can only say at once that none of the authorities on which he relied in this part of his argument seem to me to carry him so far. (Elliott v. Grey 6, Gifford v. Whittaker 5 etc.). It is one thing to say that one can use a car, within the meaning of the legislation, without driving it and quite another to say that the idea of its use is only referable to the way it is constructed or equipped. Commonsense alone would suggest that the word cannot be so narrowly interpreted. If it were it would mean that Governor's regulations might legitimately provide for the detention of a bus with a faulty silencer or some similar defect but not for detention of one which was overloaded or which carried excess passengers. Whatever intention the Legislature may have had such a result could scarcely have been part of it."

8. I agree with that proposition. I am naturally very reluctant to disagree with such an authority as Pickering J. but I cannot agree with what he says at P.413 of Kowloon Motor Bus v.R. I am reinforced in this view by the decision of Leonard, J. in Wong Yun fai v. The Queen 1977 H.K.L.R. 404. Kowloon Motor Bus v. The Queen was not cited in that case but nevertheless Leonard, J. cited and approved Windle v. Dunning, 1968, 1 W.L.R.552 where Parker C.J. said at P.556 :

"and in my judgement "using" when used in connection with causing and permitting has a restricted meaning. It certainly covers the driver and may also cover the driver's employer if he, the driver, is about his master's business. "

That was however on a construction of the English not the Hong Kong Regulations which do contain the differences refer to in Lau Ping and the reasoning in Lau Ping was based very much on the particular wording of the Hong Kong Regulation. The Court however was quite clearly concerned because it would seem that an employer might be penalized for driving offences committed by his employee with which he was in no way concerned and he was being penalized for something which he had no real power to prevent.

9. It seems to me that this is by no means the position here. The employee who is driving the vehicle must know that the brakes are defective. He may or may not inform his employer of that fact. However it seems to be totally illogical that the legislature should intend that if he continued to drive the vehicle with those defective brakes he would not be liable and would only become so liable if he is also the owner of the vehicle.

10. I am satisfied that the word "uses" in Section 8 of the Road Traffic Ordinance does include a driver who is driving a vehicle which has brakes which are defective contrary to Regulation 101 of the Road Traffic (Construction and Use) Regulations. The appeal therefore is dismissed.

11. I feel I should say something in relation to the summons against the owner of the vehicle which was dismissed on the basis of my decision in Fan Chun-keung v. The Queen 1981 H.K.L.R. 632. The magistrate appears who have found that decision was that before an owner of a vehicle could be liable the Crown had to prove that he was aware of the defective brakes. With respect that is not so. In Fan Chun-keung v. The Queen the only evidence called by the Crown was simply that of the motor vehicle examiner. There was no evidence whatever that the vehicle had ever been used on a road with the defective brakes. I held that mere ownership was not enough,. There had to be evidence of ownership and use. In this case there was clear evidence from the Police Constable that the vehicle had been used on a road and had been involved in an accident. I do not think the magistrate in the present case is correct that the Hong Kong Supreme Court has said that an employer must have knowledge of the defects in his vehicle before he becomes liable. It is only if he charged with permitting it to be used that the Crown must prove that he had knowledge of the vehicle's defects.

5     (1942)    1 K.B. 501.

6     (1960)   1 & 2 Q.B. 367

Representation:

Barry Moorfoot, Counsel for the Crown.

Kumar Ramanathan (Johnson, Stokes & Master) for the Appellant.