Cheung Kwong-sui v. The Queen

CACC001060/1976

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Coram: Morley-John, J.

Date of Judgment: 22nd October, 1976.

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JUDGMENT

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1. The appellant who was not legally represented before the magistrate, according to the record of the proceedings, pleaded guilty to two offences. Firstly, driving a motor vehicle without a valid driving licence (it having expired), and secondly, driving without third party insurance. However, according to the statement of findings of the learned magistrate it was recorded that when stopped by the police the appellant's driving licence was found to have expired and "appellant agreed that this was so and that he was consequently without third party insurance". According to the record the learned magistrate then recorded the words "I admit". The words "appellant agreed" seem to presuppose that the appellant agreed with the magistrate that he was without third party insurance cover because his driving licence had expired and for no other reason. In any event as a result of what appears to have been some sort of discussion the learned magistrate accepted the appellant's plea of guilty. On the charge of driving without third party insurance the appellant was fined $150 and was disqualified from driving a private car for a period of twelve months. It is this sentence against which the appellant now appeals and the grounds of his appeal is that the sentence is too severe. During the hearing of this appeal counsel for the appellant stated that the severity of the sentence was the twelve months' disqualification.

2. In this case from her statement of findings the learned magistrate would appear to give the impression that she believes that if a person's driving licence was out of date then automatically such a person was driving without third party insurance. This clearly is not so. The question of insurance cover depends upon the wording of the relevant policy. In this case upon the appellant agreeing that he was consequently without third party insurance cover the learned magistrate recorded a plea of guilty without more ado. The normal proviso regarding drivers in a private motor vehicle policy is as follows:-

"Provided that the person driving is permitted in accordance with the licensing or other laws or regulations to drive the motor car or has been so permitted and is not disqualified by order of a court of law or by reason of any enactment or regulation in that behalf from driving such motor car."

The insurance policy in relation to the car being driven by the appellant contains this proviso.

3. The learned author of Wilkinsons' Road Traffic Offences 8th Edition states at page 368:-

"A common form of policy allows driving with the permission of the insured person by any person who holds or has held a driving licence and is not disqualified. Thus if the driver has once held a driving licence he will be covered even though it may have expired."

The learned author quotes the case of Edwards v. Griffiths ⁽¹⁾. The facts in this case were that in 1951 the respondent passed a driving test and was granted a driving licence for twelve months. After the expiration of the licence he applied for a new licence which was refused because he was under the supervision of the local health authority under the provisions of the Mental Deficiency Acts 1913-38. In February 1953 he drove a motor tractor belonging to his employer and was charged with driving a motor vehicle without a policy of insurance being in force. The certificate of insurance of his employer contained a proviso that the driver must hold a licence to drive the vehicle or that he must have held one and not been disqualified from holding or obtaining such a licence. It was held by Lord Goddard C.J. , Parker and Donovan, JJ. , that the words "disqualified from holding or obtaining a licence" in the proviso in the certificate of insurance must be construed as meaning a disqualification of the driver by an order of the court under section (6) of the Road Traffic Act, 1930. The respondent was not so disqualified and therefore he was covered by the certificate and no offence was committed. Although this case turned primarily on the meaning of the phrase "disqualified from holding or obtaining a licence" it is clear from that case that if a driver has once held a driving licence he will be covered even though it may have expired, so long, of course, as he is not disqualified from holding or obtaining a licence.

4. In Edwards' Case Goddard, C.J. , stated

"It would be better in all these cases, and I desire police authorities to take notice of this, always to take the precaution of having the policy before the court. That can be done by issuing a subpoena requiring the assured to produce the policy to the court."

I respectfully adopt those words and suggest that in this type of case, especially where a person is unrepresented that the magistrate hearing the case does attempt to ascertain whether there is a motor insurance policy in existence and, if there is, to ascertain the conditions contained therein.

5. Counsel for the Crown has pointed out to me that the appellant pleaded guilty in this case and that the offence to which he has pleaded guilty carries, in the absence of special reasons, a mandatory disqualification of twelve months. I am satisfied that the appellant, when he agreed that he was consequently without third party insurance cover because his driving licence was out of date, did not fully appreciate the nature of the offence, neither perhaps did the learned magistrate. I therefore give leave to appeal against conviction out of time and as was done in the case of LEE Wing-tau v. Reg. ⁽²⁾ I allow this appeal and I order that the case be remitted to the magistrate with the direction to allow the appellant to reverse his plea to one of not guilty and to try the case. I further order that the fine of $150, if already paid, to be returned to the appellant.

Representation:

Mr. David Sparrow, instructed by (Raymond Tang & Co.) for the appellant.

Mr. N. Macdougall for the Crown/respondent.

(1) (1953) 2 All E.R. 874

(2) Cr. App. 974 of 1976